JAMES LEFFLER v. COMMONWEALTH OF KENTUCKY
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RENDERED:
JANUARY 20, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002022-MR
JAMES LEFFLER
APPELLANT
APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE THOMAS L. WALLER, JUDGE
INDICTMENT NO. 97-CR-00100
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, MINTON, AND VANMETER, JUDGES.
MINTON, JUDGE:
I.
THE PROCEEDINGS IN CIRCUIT COURT.
Facing a life sentence on multiple rape, sodomy, and
sexual abuse charges involving his adopted daughter, James
Leffler made a plea agreement with the Commonwealth in which he
pleaded guilty to one count each of first-degree rape 1 (victim
1
Kentucky Revised Statutes (KRS) 510.040.
under the age of twelve), a Class A felony, and second-degree
sodomy, 2 a Class C felony, in return for recommended sentences of
twenty years and ten years, respectively, to be served
concurrently.
As part of the agreement, the remaining four
felony charges in the indictment were dropped.
The circuit
court ultimately sentenced Leffler in accord with the agreement.
Leffler later moved under Kentucky Rules of Criminal
Procedure (RCr) 11.42 3 to have the indictment, sentence, and
conviction amended to reflect that he pleaded guilty to firstdegree rape as a Class B felony or to second-degree rape, a
Class C felony, rather than to first-degree rape as a Class A
felony.
In the alternative, he sought to have his sentence and
conviction vacated.
Leffler’s claims are essentially as follows:
(1) the
guilty plea was not knowing and voluntary because he did not
understand the terms and consequences of his plea agreement;
2
KRS 510.080.
3
The motion that the circuit court ruled on was nominally a combined
motion under RCr 11.42 and Kentucky Rules of Civil Procedure
(CR) 60.02. Leffler first filed a pro se CR 60.02 motion, followed
by a pro se RCr 11.42 motion, which incorporated all the claims
raised in his CR 60.02 motion with additional claims and a pro se
motion to merge his CR 60.02 motion with his RCr 11.42 motion. The
circuit court never ruled on Leffler’s motion to merge the CR 60.02
and RCr 11.42 motions but ruled on both in a single order without
distinguishing the procedural differences between the two. It
appears to us that the circuit court effectively considered the
issue to be simply an RCr 11.42 motion. On appeal, the parties have
not addressed the procedural differences between a CR 60.02 motion
and an RCr 11.42 motion in their briefs. We, too, will review this
as an appeal from an RCr 11.42 motion.
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(2) his guilty plea was not knowing and voluntary because it was
the product of ineffective assistance counsel in several ways;
and (3) the amendment of the caption of the indictment
concerning the first-degree rape charge violated his right to an
indictment by grand jury under the Fifth and Fourteenth
Amendments.
The circuit court conducted a hearing on Leffler’s
RCr 11.42 motion 4 on August 19, 2003, before denying it in an
order entered August 27, 2003.
Leffler has appealed from that
order.
II.
A.
ANAYLSIS ON APPEAL.
Amending the Caption of the Indictment.
Many of Leffler’s claims are related to the amendment
of the caption of the indictment concerning the charge of firstdegree rape.
follows:
The body of the indictment charged Leffler as
“That beginning on or about the year of 1988, through
and including 1992, in Bullitt County, Kentucky, the above named
Defendant[] committed the offense of Rape in the First Degree by
engaging in sexual intercourse with [the victim], a female less
than twelve years of age.”
Depending upon the facts of the
case, first-degree rape can be either a Class A felony or a
4
No transcript or recording of this hearing is included in the record
before this Court.
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Class B felony. 5
Because the victim was under the age of twelve
when the first-degree rape occurred, KRS 510.040(2) dictates
that the crime charged is a Class A felony.
But the caption of
the indictment originally indicated that the charge of firstdegree rape was a “Class B Felony.”
So the Commonwealth moved
to amend the caption of the indictment on March 31, 1999, “to
reflect the charge of Rape in the First Degree to be a Class A
Felony.”
The order amending the caption of the indictment was
not entered until April 27, 1999, one day after Leffler entered
his guilty plea.
One of the possible remedies that Leffler seeks in
this appeal is the amendment of the indictment, conviction, and
sentence to reflect that he was not charged with nor did he
plead guilty to first-degree rape as a Class A felony but,
5
The elements of first-degree rape are set forth in KRS 510.040 as
follows:
(1)
A Person is guilty of rape in the first degree
when:
(a)
He engages in sexual intercourse with another
person by forcible compulsion; or
(b)
He engages in sexual intercourse with another
person who is incapable of consent because he:
1. Is physically helpless; or
2. Is less than twelve (12) years old.
(2)
Rape in the first degree is a Class B felony unless
the victim is under twelve (12) years old or
receives a serious physical injury in which case it
is a Class A felony.
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instead, first-degree rape as a Class B felony or second-degree
rape, a Class C felony.
indictment.
We have no power to alter an
Nor can we find any authority to amend Leffler’s
conviction and sentence as he requests.
This is not a situation
in which he accuses the Commonwealth of reneging on a plea
agreement and merely seeks the enforcement of the agreement.
Instead, on the basis of an alleged unilateral misunderstanding
of the terms of the plea agreement, he seeks to have the plea
agreement reformed.
RCr 11.42.
This is not an available remedy under
To the extent Leffler is entitled to any relief
under RCr 11.42, his remedy is the vacation of his conviction
and sentence.
Leffler asserts that the amendment of the caption of
the indictment to reflect that he was being charged with firstdegree rape as a Class A felony, rather than a Class B felony,
violated his Fifth Amendment and Fourteenth Amendment rights to
an indictment by a grand jury.
But the Grand Jury Clause of the
Fifth Amendment has not been extended to the states by the
Fourteenth Amendment. 6
So Leffler’s claim is without merit.
Section Twelve of the Kentucky Constitution created a
substantive due process right to a grand jury indictment for
6
Partin v. Commonwealth, 168 S.W.3d 23, 31 (Ky. 2005) (citing
Apprendi v. New Jersey, 530 U.S. 466, 477 n.3 (2000); Hurtado v.
California, 110 U.S. 516 (1884)).
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prosecution on a felony offense. 7
But even if we were to
consider Leffler’s claim to be based on Section Twelve of the
Kentucky Constitution, it still fails.
The law makes an important distinction between the
caption of an indictment and the body of the indictment.
The
caption of the indictment and statements recited there are not
grand jury findings. 8
Where there is a variance between the
language of the body of the indictment and the language of the
caption, the language of the body controls. 9
“Thus, an
indictment may be good in spite of an error in designating the
offense in the caption, provided that the charging part of the
indictment [the body] so clearly alleges facts constituting a
crime that the defendant would not reasonably be confused by the
erroneous designation.” 10
In the instant case, the body of the indictment, which
contains the grand jury’s action, charged Leffler with the crime
of first-degree rape for “engaging in sexual intercourse with
[the victim], a female less than twelve years of age.”
And
KRS 510.040(2) designates [r]ape in the first degree as a
7
See Malone v. Commonwealth, 30 S.W.3d 180, 182 (Ky. 2000); RCr 6.02.
8
Riley v. Commonwealth, 120 S.W.3d 622, 630 (Ky. 2003) (quoting
41 AM.JUR.2D Indictments and Informations § 71 (1995)).
9
Riley, 120 S.W.3d at 630.
10
41 AM.JUR.2D Indictments and Information § 67 (2005).
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Class A felony when the victim is under twelve years of age.
A
mistake in the caption of the indictment of the first-degree
rape charge as a Class B felony did not represent the grand
jury’s decision.
felony.
The grand jury charged Leffler with a Class A
And the body of the indictment clearly set forth the
specific crime with which Leffler was charged so that he, or at
least his counsel, could not reasonably be confused by the
mistaken designation of the crime in the caption as a Class B
felony even before the Commonwealth moved to amend the caption.
Neither Leffler’s state nor federal constitutional rights were
violated by the amendment of this clerical error in the
indictment.
B.
Knowing and Voluntary Guilty Plea.
Leffler alleges that his guilty plea was not entered
knowingly because neither the circuit court nor his trial
counsel explained the terms and consequences of his plea
agreement.
Leffler now asserts that the victim was twelve or
older when they had intercourse for the first time; and,
therefore, he would never have knowingly agreed to plead guilty
to a Class A felony.
But, according to the circuit court’s order, Leffler’s
trial counsel testified that Leffler told her that he was not
sure whether the victim was under twelve when the sex began.
Although the responsibility for the completeness of the record
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rests on Leffler as the appellant, 11 he failed to include any
recording or transcript of the RCr 11.42 evidentiary hearing.
When the complete record is not provided to us, we must assume
that the omitted record supports the decision of the circuit
court. 12
Leffler’s assertion that his guilty plea was not
knowing and voluntary is also refuted by the transcript of the
guilty plea colloquy and sentencing hearing.
Even though the
circuit clerk had not yet entered the order formally amending
the erroneous caption of the indictment, the Commonwealth had
explicitly raised this issue before Leffler entered his guilty
plea.
Leffler’s counsel stated that Leffler had “no objection”
to the circuit court signing the order amending that caption
noting that “the substance of the indictment was the same, and
we reached an agreement based on the amendment.”
Leffler signed in open court the written petition to
enter a guilty plea, which specifically spelled out that he was
pleading guilty to “Count 1⎯Rape 1st degree (female less than
12 years of age), a Class A felony with the recommendation of a
20 year sentence; Count 4⎯Sodomy 2nd degree with recommendation
of a 10 year sentence to run concurrent with the 20 year
sentence in C[o]unt 1.”
Leffler acknowledged by signing this
11
Commonwealth v. Thompson, 697 S.W.2d 143, 144 (Ky. 1985).
12
Id. at 145.
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form that he was aware of his constitutional rights and that he
was forfeiting these rights by pleading guilty.
Then, the
circuit judge conducted a thorough colloquy, canvassing each of
these points again with Leffler and, further, examining
Leffler’s counsel.
In the course of this colloquy, the circuit
court made it clear that Leffler was pleading guilty, in part,
to first-degree rape of a victim under the age of twelve, a
Class A felony, and that the Commonwealth had recommended a
twenty-year sentence for this crime.
The judge verified that
Leffler had had sufficient opportunity to consult with his
counsel about the plea agreement and that he was satisfied with
his counsel’s performance.
The circuit court also pointed out
that he would not be eligible for probation, conditional
discharge, or alternative sentencing.
The circuit court concluded that the responses of both
Leffler and his counsel showed that Leffler was pleading guilty
freely, voluntarily, and knowingly as required by Boykin v.
Alabama. 13
The record amply supports this.
Thus, the record
refutes Leffler’s allegation that he pleaded guilty based on a
misunderstanding or lack of understanding about the terms and
consequences of the plea agreement.
13
395 U.S. 238 (1969).
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C.
Ineffective Assistance of Counsel Claims.
Leffler asserts that his guilty plea was the product
of ineffective assistance of counsel alleging several different
deficiencies by his trial counsel.
The two–part test for
determining ineffective assistance of counsel is set out in
Strickland v. Washington. 14
The Strickland test requires the
movant must show both that counsel’s performance was deficient
and that this deficient performance prejudiced his defense. 15
This two-prong test also applies to challenges to guilty pleas
based on ineffective assistance of counsel. 16
In such a case,
the movant must show both that the attorney’s performance was
deficient and that the attorney’s deficient performance so
affected the outcome of the plea process 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.” 17
Regarding the first prong of the test, the burden is
on the movant to overcome a strong presumption that counsel’s
14
466 U.S. 668 (1984). See also, Gall v. Commonwealth, 702 S.W.2d 37,
39 (Ky. 1985) (recognizing that Kentucky’s courts are bound by the
principles established in Strickland for analyzing ineffective
assistance of counsel claims).
15
Strickland, 466 U.S. at 687.
16
Hill v. Lockhart, 474 U.S. 52, 58 (1985).
17
Id., 474 U.S. at 59.
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assistance was not constitutionally deficient or that under the
circumstance counsel’s actions might be considered trial
strategy. 18
The court must be highly deferential in reviewing
counsel’s performance and should avoid second-guessing counsel’s
actions based on hindsight. 19
The standard for assessing
counsel’s performance is whether the alleged acts or omissions
were outside the wide range of prevailing professional norms
based on an objective standard of reasonableness. 20
1.
Counsel’s Alleged Failure to Investigate.
Leffler asserts that trial counsel was ineffective
because she failed adequately to investigate the case.
He
asserts that if his trial counsel were familiar with the facts
of the case, she would have fought the amendment of the caption
of the indictment because she would have realized that there was
no evidence to justify amending the caption of the indictment
because the intercourse did not occur until the victim was
twelve years old or older.
Though it is cloaked as an
ineffective assistance of counsel claim, the essence of this
claim is that the Commonwealth lacked sufficient evidence to
18
Strickland, 466 U.S. at 689; Moore v. Commonwealth, 983 S.W.2d 479,
482 (Ky. 1998).
19
Harper v. Commonwealth, 978 S.W.2d 311, 315 (Ky. 1998).
20
Strickland, 466 U.S. at 687-688; Harper, 978 S.W.2d at 315.
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prove all the elements of the crime of first-degree rape of a
victim under the age of twelve.
It is well established that a guilty plea entered
freely, knowingly, and voluntarily precludes a collateral
challenge to the sufficiency of the evidence. 21
Having found
that Leffler’s guilty plea was entered into freely, knowingly,
and voluntarily, he may not now collaterally attack the
sufficiency of the evidence.
Even if this issue were not waived, it is without
merit.
Leffler’s claim rests on his contention that the victim
was actually twelve or older when he first had intercourse with
her.
He bases this on an isolated statement in a document
contained in pretrial discovery entitled “CPS Investigative
Narrative”:
“[The victim] reported that the sexual intercourse
began somewhere between the age of 12 and 13[] and that the last
time intercourse had occurred was in May 1996.”
The narrative,
written by Family Service Office Supervisor Donna Canchola,
purports to document a September 20, 1996, interview of the
victim and her mother conducted by Sheriff’s Deputy Mike Minton
and Canchola.
Leffler also asserts that the victim made a
similar statement to an eighth grade teacher, but he offers no
21
Taylor v. Commonwealth, 724 S.W.2d 223, 225 (Ky.App. 1986). See
also, Commonwealth v. Johnson, 120 S.W.3d 704, 706 (Ky. 2003)
(noting that any right, even a constitutional right, may be waived
by a knowing and voluntary guilty plea).
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support for this claim nor can we find any support in the
record.
Leffler ignores other evidence indicating that the
sexual intercourse began when the victim was younger than
twelve.
In its order denying Leffler’s motions, the circuit
court indicated that it had listened to a portion of the
victim’s grand jury testimony in which she testified that the
sexual intercourse began when she was under the age of twelve.
The circuit court also noted that Leffler’s trial counsel
testified that Leffler told her that he did not know whether the
victim was under the age of twelve when the intercourse began.
Also, the pretrial discovery provided by the Commonwealth
included a list prepared by the victim setting out, as best she
could recall, dates when she was sexually abused by Leffler.
She specifically recalled that Leffler picked her up from school
and had sexual intercourse with her on a day in September 1989
when her fifth-grade teacher made her stay after school for
detention.
According to the circuit court, a copy of a letter
dated September 26, 1989, written by the victim’s mother to her
teacher concerning the detention was also included in the
discovery.
In September of 1989, Leffler was less than twelve
years of age.
We find no copy of this letter, no transcript of
Leffler’s trial counsel’s testimony, nor any transcript of the
victim’s grand jury testimony in the record before us.
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For the
reasons noted above, we must assume that the missing evidence
supported the circuit court’s decision to deny Leffler’s
RCr 11.42 motion. 22
These facts show that there was sufficient evidence to
establish the age-of-the victim element of the first-degree rape
charge.
“It is not ineffective assistance of counsel to fail to
perform a futile act.” 23
Under these circumstances, any actions
that trial counsel had taken to fight the correction of the
caption would have been futile.
Leffler has failed to establish
any ineffective assistance of counsel claim based on trial
counsel’s alleged failure to investigate the facts of his case.
Leffler also claims that his trial counsel was
deficient in failing to argue that the conduct on which the
charge of first-degree rape was based supported only a seconddegree rape charge.
Since Leffler claims that the victim was
twelve or thirteen when he first had intercourse with her, he
asserts that an investigation of the facts of his case would
have revealed that he actually committed the crime of seconddegree rape, 24 a Class C felony.
This is simply a reiteration
22
Thompson, 697 S.W.2d at 145.
23
Bowling v. Commonwealth, 80 S.W.3d 405, 415 (Ky. 2002).
24
See KRS 510.050, which states as follows:
(1)
A person is guilty of rape in the second-degree
when:
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of his previous argument and rests on his premise that the
victim was not under the age of twelve when the sexual
intercourse first occurred.
Again, this is really another
insufficiency of the evidence claim.
As such, Leffler waived
this claim with his guilty plea to the charge of first-degree
rape. 25
Even if the claim were preserved, it would fail for
the same reason as his previous ineffective counsel claim:
there was enough potential evidence to prove that Leffler had
sex with the victim when she was younger than twelve for a
submissible jury issue.
So arguing that Leffler could not be
charged with first-degree rape of a child would have been
another futile act on the part of Leffler’s trial counsel.
2.
Claim that Counsel’s Plea Recommendation was Deficient.
Finally, Leffler maintains that his trial counsel was
deficient in recommending that he accept the plea agreement,
which he now asserts was not in his best interest.
This
argument rests on the faulty assumptions that the charge of
first-degree rape as a Class A felony was improper both because
(a) Being eighteen (18) years old or more, he
engages in sexual intercourse with another
person less than fourteen (14) years
old . . . .
(2)
25
Rape in the second degree is a Class C felony.
See Taylor, 724 S.W.2d at 225.
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the indictment was amended illegally and because there was
insufficient evidence that the victim was younger than twelve
when Leffler first had sex with her.
Advising a client to plead guilty is not, in and of
itself, evidence of any degree of ineffective assistance of
counsel. 26
Leffler was charged with one Class A Felony 27 (20-
50 years, or life), three Class C felonies 28 (5-10 years each),
and two Class D felonies 29 (1-5 years each).
If convicted of all
charges and sentenced to serve consecutive sentences, he could
have been sentenced to life imprisonment. 30
As a result of the
very favorable terms of the plea agreement, he received a
maximum sentence of 20 years, which is the minimum sentence he
would have received if convicted only of the Class A felony.
At his sentencing hearing, Leffler’s counsel addressed
another legitimate motive for Leffler to enter a guilty plea.
She noted that Leffler had voluntarily sought counseling for his
sexual abuse of the victim before he was ever charged with any
26
Beecham v. Commonwealth, 657 S.W.2d 234, 236-237 (Ky. 1983).
27
First-degree rape, KRS 510.040.
28
Second-degree rape, KRS 510.050, and two counts of second-degree
sodomy, KRS 510.080.
29
Third-degree rape, KRS 510.060, and first-degree sexual abuse,
KRS 510.110.
30
See Bedell v. Commonwealth, 870 S.W.2d 779, 783 (Ky. 1993) (holding
that a court cannot run a sentence consecutively with a life
sentence).
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crime and had participated faithfully in his counseling for two
and a half years.
She stated that Leffler “is deeply remorseful
and deeply regrets all the damage that he’s done to [the victim]
and this family and again take[s] complete and full
responsibility” as a reason why he was willing to enter the
guilty plea so as to “not put [the victim] through a trial” even
though it would require him to plead guilty to a Class A felony.
Leffler does not dispute these facts.
Based on these facts, it was reasonable for Leffler’s
counsel to advise him to accept the Commonwealth’s favorable
plea offer.
The fact that Leffler did not want further to harm
his adopted daughter or the rest of his family by forcing them
to endure a trial only strengthened the reasonableness of
counsel’s advice.
We cannot say that that Leffler’s trial
counsel’s performance in recommending that Leffler enter into
the plea agreement was deficient.
Because Leffler has failed to establish that his trial
counsel’s performance fell below the standard of a reasonably
competent attorney in any respect, we need not examine the
prejudice prong of the Strickland test.
III. DISPOSITION.
We affirm the circuit court’s order denying Leffler’s
motion for RCr 11.42 relief.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Juliette Stewart House
Louisville, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
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