KEDREN SMITH v. COMMONWEALTH OF KENTUCKY
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RENDERED:
DECEMBER 16, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001287-MR
KEDREN SMITH
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE A.C. McKAY CHAUVIN, JUDGE
ACTION NOS. 01-CR-002443 & 01-CR-002261
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, JOHNSON, AND McANULTY, JUDGES.
JOHNSON, JUDGE:
Kedren Smith, pro se, has appealed from the
June 16, 2004, order of the Jefferson Circuit Court which denied
his pro se motion to vacate or to correct the trial court’s
final judgment and sentence of imprisonment pursuant to RCr 1
11.42, without holding an evidentiary hearing.
1
Kentucky Rules of Criminal Procedure.
Having concluded
that the trial court did not err in denying Smith’s claims
without holding an evidentiary hearing, we affirm.
On September 27, 2001, Smith was indicted 2 by a
Jefferson County grand jury on one count of murder, 3 and three
counts of wanton endangerment in the first degree. 4
The charges
arose from an incident occurring on September 16, 2001, where
Smith fired several shots from a .40 caliber handgun into a
vehicle, killing one of the passengers. 5
The next day, Smith,
accompanied by his attorney, turned himself in at the Louisville
Police Department.
Following his arraignment on the charges, a
second indictment was issued against Smith on October 23, 2001, 6
charging him as a persistent felony offender in the first degree
(PFO I). 7
Pursuant to a plea agreement with the Commonwealth,
dated April 17, 2003, Smith entered an Alford 8 plea to each count
2
Case No. 01-CR-002261.
3
Kentucky Revised Statutes (KRS) 507.020.
4
KRS 508.060.
5
The other three passengers in the vehicle were not injured.
6
Case No. 01-CR-002443.
7
KRS 532.080(3).
8
See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162
(1970). A defendant pleading guilty under Alford refuses to admit his guilt
but acknowledges that the Commonwealth can present sufficient evidence to
support a conviction. An Alford plea “is a guilty plea in all material
respects.” United States v. Tunning, 69 F.3d 107, 111 (6th Cir. 1995).
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contained in both indictments. 9
In return for these guilty
pleas, the Commonwealth agreed to recommend prison sentences of
20 years for murder, five years on each of the three counts of
wanton endangerment, with all three sentences enhanced to 20
years by virtue of the PFO I conviction, with all four sentences
running concurrently for a total of 20 years in prison.
The
trial court entered an order accepting Smith’s guilty plea on
May 1, 2003, and on May 29, 2003, the trial court sentenced him
in accordance with the plea agreement. 10
On June 1, 2004, Smith filed a pro se motion to vacate
or to correct his sentence pursuant to RCr 11.42, as well as a
motion for appointment of counsel, and a request for an
evidentiary hearing. 11
The Commonwealth did not file a response
to Smith’s RCr 11.42 motion.
On June 16, 2004, the trial court
denied Smith’s request for counsel, and denied his RCr 11.42
motion, without holding an evidentiary hearing.
This appeal
followed.
Smith argues on appeal (1) that his plea was not
entered knowingly, intelligently, or voluntarily; (2) that trial
9
10
The motion to enter guilty plea was dated April 16, 2003.
The trial court entered its order on June 9, 2003.
11
In support of his motion for an evidentiary hearing, Smith states, “Movant
believes that the Commonwealth will controvert movant as to his beliefs and
claims which may need to go beyond the record, or through the testimony of
trial counsel to controvert movant’s own allegations as to ineffective
assistance of counsel.”
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counsel was ineffective for advising him to accept a plea offer
that included an enhancement to the charge of murder; (3) that
trial counsel waived Smith’s right to protection against selfincrimination by advising Smith to plead guilty to PFO I; (4)
that trial counsel was ineffective for failing to investigate
Smith’s mental capacity to stand trial; (5) that trial counsel
was ineffective for failing to provide a defense strategy; and
(6) that trial counsel was ineffective for failing to hold the
Commonwealth to its oral agreement that it would not seek a PFO
I charge against Smith.
In addition to challenging the trial
court’s rejection of his various claims, Smith contends the
trial court erred in failing to conduct an evidentiary hearing
on his RCr 11.42 motion.
In order to be constitutionally valid, a
guilty plea must be entered knowingly, intelligently, and
voluntarily. 12
RCr 8.08 requires a trial court to determine at
the time of the guilty plea “that the plea is made voluntarily
with understanding of the nature of the charge.” 13
“[T]he
12
Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969);
Tollett v. Henderson, 411 U.S. 258, 266-67, 93 S.Ct. 1602, 36 L.Ed.2d 235
(1973); Haight v. Commonwealth, 760 S.W.2d 84, 88 (Ky. 1988); Woodall v.
Commonwealth, 63 S.W.3d 104, 132 (Ky. 2002).
13
See James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995)(stating that “[a]
guilty plea is invalid if the defendant does not understand the nature of the
constitutional protection that he is waiving or if he has such an incomplete
understanding of the charges against him that his plea cannot stand as an
admission of guilt” [citations omitted].). See also Bronk v. Commonwealth,
58 S.W.3d 482, 486 (Ky. 2001).
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validity of a guilty plea is determined . . . from the totality
of the circumstances surrounding it.” 14
We have reviewed the guilty plea colloquy, and the
trial judge was very thorough in advising Smith of his
constitutional rights and allowing Smith to speak.
Additionally, the record contains a preprinted form styled
“Motion to Enter Guilty Plea” and the subheading “Alford v.
North Carolina” was added.
Smith signed the form indicating his
acknowledgement and understanding of the following statements:
“Because I am guilty and make no claim of innocence, I wish to
plead ‘GUILTY’ in reliance on the attached “Commonwealth’s Offer
on a Plea of Guilty[,] pursuant to Alford v. North Carolina” 15
and “I declare my plea of ‘GUILTY’ is freely, knowingly,
intelligently and voluntarily made, that I have been represented
by competent counsel, and that I understand the nature of this
proceeding and all matters contained in this document.”
On April 17, 2003, when Smith entered his plea of
guilty pursuant to Alford, the trial court carefully reviewed
with him and his attorney the charges for which he was indicted,
14
Kotas v. Commonwealth, 565 S.W.2d 445, 447 (Ky. 1978) (citing Brady v.
United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)).
15
The form Smith signed did not contain the same language as set forth on the
specific form normally used for Alford pleas. The Alford plea form contains
an extra paragraph which states: “In so pleading, I do not admit guilt, but
I believe the evidence against me strongly indicates guilt and my interests
are best served by a guilty plea.” However, because the language “pursuant
to Alford v. North Carolina” was handwritten on the form, we must assume that
all parties involved were acknowledging this Alford standard.
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the possible penalties he faced under those charges, and the
sentences recommended by the Commonwealth.
Smith participated
in an exhaustive plea colloquy in which he assured the trial
court that he had not been threatened, forced, or coerced to
plead guilty.
He also answered in the affirmative when he was
asked if his attorney had kept him fully informed and if he
understood the charges against him and the possible defenses.
He acknowledged that he was aware of the constitutional rights
he was giving up by pleading guilty.
He also indicated that he
understood the meaning of an Alford plea.
The United States Supreme Court set out the standard
for ineffective assistance of counsel in Strickland v.
Washington, 16 as follows:
First, the defendant must show that
counsel’s performance was deficient. This
requires showing that counsel made errors so
serious that counsel was not functioning as
the “counsel” guaranteed the defendant by
the Sixth Amendment. Second, the defendant
must show that the deficient performance
prejudiced the defense. This requires
showing that counsel’s errors were so
serious as to deprive the defendant of a
fair trial, a trial whose result is
reliable. Unless a defendant makes both
showings, it cannot be said that the
conviction or death sentence resulted from a
breakdown in the adversary process that
renders the result unreliable.
16
466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
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This standard also applies to the guilty plea
process. 17
“[T]he voluntariness of the plea depends on whether
counsel’s advice ‘was within the range of competence demanded of
attorneys in criminal cases’” [citations omitted].” 18
When
reviewing trial counsel’s performance, this Court must be highly
deferential and we should not usurp or second-guess counsel’s
trial strategy. 19
“[A] court must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged
action ‘might be considered sound trial strategy’” [citations
omitted]. 20
“[I]n order to satisfy the ‘prejudice’ requirement,
the defendant must show that there is a reasonable probability
that, but for counsel’s errors, he would not have pleaded guilty
and would have insisted on going to trial.” 21
Smith argues that the PFO I conviction was used
as an enhancement of his murder conviction and that trial
counsel violated his right to protection against self-
17
Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
18
Hill, 474 U.S. at 56.
19
Strickland, 466 U.S. at 689.
20
Id.
21
Hill, 474 U.S. at 59.
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incrimination by advising him to plead guilty to PFO 1.
We find
these arguments to be without merit.
The record reveals that Smith entered a plea of guilty
to the Commonwealth’s recommendation, which stated as follows:
Murder—twenty (20) years, WE I (3 CTS)—
five(5) years each count enhanced to twenty
(20) years each count by the PFO I, PFO I—
enhance. All to run concurrently for a
total of twenty (20) years to serve.
Furthermore, the trial court’s final judgment and conviction
stated as follows:
COUNT 1:
COUNT 2:
COUNT 3:
MURDER—20 years
WANTON ENDANGERMENT I (3 CTS)—five
(5) years each count enhanced to
20 years
PERSISTENT FELONY OFFENDER I—
enhance.
All to run concurrent for a total of (20)
years to serve.
While it is correct that our Supreme Court in Berry v.
Commonwealth, 22 stated that “[m]urder is a capital offense and a
murder conviction is not subject to PFO enhancement[,]” it is
clear from the record in this case that the trial court did not
enhance the murder sentence.
However, Smith contends the PFO I
charge was used to coerce him into pleading guilty because he
believed “his punishment could be more severe had he [ ] gone to
trial and [been] found guilty of murder pursuant to the
provisions of KRS 507.020.”
22
Without some evidence to support
782 S.W.2d 625, 627 (Ky. 1990).
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this claim, it is nothing more than a bare allegation which does
not entitle Smith to an evidentiary hearing. 23
Smith’s next two arguments relate to his insistence
that his counsel was ineffective for failing to investigate
portions of his case and for failing to prepare a defense
strategy.
Specifically, he claims that trial counsel failed to
determine whether he was mentally competent to stand trial.
There is no evidence to support Smith’s claim that his trial
counsel was ineffective for failing to seek a determination of
his competency, since every indication in the record is that
Smith was lucid and capable of communicating with others.
Further, there was no medical proof of any mental illness or
evidence of bizarre behavior. 24
Smith also argues that trial counsel was ineffective
when counsel failed to force the Commonwealth to uphold a “nonprosecution” agreement with Smith in exchange for Smith’s
truthful polygraph examination.
without merit.
Again, Smith’s argument is
The trial court made specific findings regarding
Smith’s claim and found “that even if such an agreement existed,
it is clear from the subsequent events that the defendant did
23
Brooks v. Commonwealth, 447 S.W.2d 614, 617 (Ky. 1969).
24
Foley v. Commonwealth, 17 S.W.3d 878, 885-86. (Ky. 2000).
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not provide truthful testimony during that examination and, as
such, is not entitled to any relief.” 25
We agree.
Despite the fact that his counsel obtained a minimum
sentence on the murder charge, Smith continues to maintain that
his guilty plea was coerced.
Smith’s claim that he would have
proceeded to trial and faced the reality of a longer prison
sentence rather than taking the bargain offered by the
Commonwealth, which included no additional state or federal
charges being filed against him in regards to the shooting, is
not reasonable.
Smith did benefit from his plea despite the
fact that he did not give truthful testimony during the
polygraph and did not uphold his end of the bargain. 26
Additionally, Smith has not cited to any specific facts which
would show that he was influenced or deceived into pleading
guilty.
Mere conclusory allegations, unsupported by specific
25
There is no evidence in the record that the Commonwealth made a “deal” with
Smith that it would not prosecute him for PFO I if he took a polygraph
examination and passed. In any event, even if a “deal” existed, Smith did
not uphold his end when he failed the polygraph examination, which would in
turn mean the Commonwealth did not have to uphold any bargain it may have
made with Smith. Subsequently, Smith now wants to argue that the
Commonwealth should not have been allowed to welsh on its deal regardless of
the outcome of the polygraph test. It would seem that Smith believed that if
he was truthful about committing murder, the Commonwealth would not prosecute
him.
26
See Matheny v. Commonwealth, 37 S.W.3d 756, 758 (Ky. 2001) (stating that
“[i]f a plea ‘offer is made by the prosecution and accepted by the accused,
either by entering a plea or taking action to his detriment in reliance on
the offer, then the agreement becomes binding and enforceable’” (quoting
Smith v. Commonwealth, 845 S.W.2d 534, 537 (Ky. 1993))).
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facts, are insufficient to require the trial court to grant an
evidentiary hearing on the issue. 27
Finally, a movant is not entitled to an evidentiary
hearing on an RCr 11.42 motion unless “there is an issue of fact
which cannot be determined on the face of the record.” 28
“Where
the movant’s allegations are refuted on the face of the record
as a whole, no evidentiary hearing is required.” 29
For the foregoing reasons, the judgment of the
Jefferson Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Kedren Smith, Pro Se
LaGrange, Kentucky
Gregory D. Stumbo
Attorney General
Robert E. Prather
Assistant Attorney General
Frankfort, Kentucky
27
See Sanders v. Commonwealth, 89 S.W.3d 380, 385 (Ky. 2002).
Bowling v. Commonwealth, 981 S.W.2d 545, 549 (Ky. 1998).
28
See also
Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993).
29
Sparks v. Commonwealth, 721 S.W.2d 726, 727 (Ky.App. 1986) (citing Hopewell
v. Commonwealth, 687 S.W.2d 153, 154 (Ky.App. 1985)).
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