LESTER KNOX COLEMAN v. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: JANUARY 6, 2006; 10:00
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
LESTER KNOX COLEMAN
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
ACTION NO. 99-CR-00995
COMMONWEALTH OF KENTUCKY
** ** ** ** **
BARBER, BUCKINGHAM, AND JOHNSON, JUDGES.
Lester Knox Coleman, 1 pro se, has appealed 2 from
the May 28, 2004, order of the Fayette Circuit Court which
denied his motion to vacate his sentence pursuant to RCr 3 11.42. 4
The record indicates that Coleman had the following aliases during this time
period: Thomas Leavy, Thomas O’Leavy, and Lex Coleman.
Coleman has a second appeal pending before this Court regarding a separate
order in the same case, Case No. 2005-CA-000557-MR.
Kentucky Rules of Criminal Procedure.
RCr 11.42 states, in relevant part, that “[a] prisoner in custody under
sentence or a defendant on probation, parole or conditional discharge who
claims a right to be released on the ground that the sentence is subject to
collateral attack may at any time proceed directly by motion in the court
that imposed the sentence to vacate, set aside or correct it.”
Having concluded that the trial court did not err in setting the
terms of Coleman’s sentence and in finding that he received the
effective assistance of counsel, we affirm.
On September 28, 1999, Coleman was indicted on 42
counts of criminal possession of a forged instrument in the
second degree, 5 and on one count of being a persistent felony
offender in the second degree (PFO II). 6
all counts on October 1, 1999.
He pled not guilty to
The charges against Coleman
arose from his attempt to pass forged checks in the total amount
of approximately $7,300.00, allegedly drawn on overseas banks,
and his use of various forged documents of identification, such
as Social Security numbers, passports, driver’s licenses, and
credit cards. 7
A jury trial was held on March 13 through 16,
The jury found Coleman guilty on 36 counts of criminal
possession of a forged instrument in the second degree. 8
jury recommended a sentence of four years each on two of the
convictions and one year each on the remaining 28 convictions,
all to run concurrently for a total prison sentence of four
Kentucky Revised Statutes (KRS) 516.060.
These facts were set out in this Court’s unpublished opinion of Coleman’s
first appeal, Case No. 2000-CA-001158-MR.
Six counts of criminal possession of a forged instrument in the second
degree, as well as the PFO II charge, were dismissed.
Final sentencing was conducted on April 10, 2000.
trial court upheld the recommended length of the sentences that
the jury placed on each conviction.
However, the trial court
did not follow the jury’s recommendation of concurrent
sentencing on all convictions, but instead ordered Coleman’s two
four-year sentences, and two of his one-year sentences to run
consecutively with each other, and the one-year sentences on the
remaining 32 counts to run concurrently with all other
sentences, for a total sentence of ten years in prison.
trial court then suspended imposition of Coleman’s ten-year
prison sentence and granted him probation for five years. 9
Coleman directly appealed his convictions to this Court on May
10, 2000; 10 however, he did not raise in his appeal claims that
the trial court abused its discretion in refusing to follow the
jury’s recommendation of concurrent sentencing, or that he
received ineffective assistance of counsel regarding his
On June 11, 2002, the office of probation and parole
filed an affidavit stating that Coleman had violated the terms
Under Coleman’s probation restrictions he was required, among other things,
to maintain good behavior, submit to physical examinations, and not to leave
the state without permission.
A panel of this Court affirmed Coleman’s direct appeal on August 2, 2002,
in Case No. 2000-CA-001158-MR. The Supreme Court of Kentucky denied
discretionary review of the case on September 3, 2002, in Case No. 2002-SC000701.
of his probation. 11
Following several delays in serving a bench
warrant on Coleman for the probation violation, 12 the trial court
held a probation revocation hearing on May 23, 2003.
was entered on May 29, 2003, revoking Coleman’s probation and
formally sentencing him to serve ten years in prison. 13
On September 5, 2003, 14 Coleman filed a motion to
vacate his sentence pursuant to RCr 11.42. 15
that he was denied his statutory right to a “jury fixed”
The June 11, 2002, affidavit to revoke Coleman’s probation stated grounds
as follows: “On May 14, 2002 the probationer was sent a letter instructing
him to report to the Probation Office at Lexington on June 4, 2002 at 11:00
AM. The probationer failed to report at that time. On June 6, 2002 this
officer talked with probationer by telephone. It was agreed that the
probationer would visit in person in the Probation Office at Lexington on
June 7, 2002 at 1:00 PM. The probationer again failed to report.” The
August 14, 2002, addendum to the affidavit to revoke probation states
additional grounds as follows: “1. On or about March 13, 2002 probationer
left Garrard County, Kentucky and relocated to Fort Campbell, Kentucky where
he did not have permission to be. 2. On July 19, 2002 in open Court the
probationer’s Attorney advised that the probationer was in Saudi Arabia,
where he did not have permission to be.”
Coleman was arrested on May 16, 2003.
Coleman filed a motion for sentence modification which the trial court
denied by order entered on July 3, 2003. Then, on July 24, 2003, Coleman
filed a motion for shock probation, which was denied by the trial court by
order entered on September 4, 2003.
Coleman filed a motion for shock probation reconsideration on October 29,
2003, which was denied by the trial court on October 30, 2003. He then filed
another motion for shock probation reconsideration on December 19, 2003, and
a motion rehearing-shock probation on December 29, 2003, both of which the
trial court denied by order entered on December 31, 2003. Coleman filed
another motion to vacate probation revocation on January 12, 2004, which was
denied by the trial court by order entered on January 26, 2004. Coleman then
filed a notice of appeal in this Court on January 26, 2004, Case No. 2004-CA000201-MR, which was dismissed on September 10, 2004, for failure to file a
brief. The order was final on October 27, 2004.
The motion was filed pro se but Coleman was appointed counsel on October
17, 2003. Prior to the appointment, Coleman filed a letter on September 15,
2003, with the RCr 11.42 motion that he filed pro se. Counsel was granted
leave to file Coleman’s pro se memorandum in support of his RCr 11.42 motion
and the memorandum was filed on March 5, 2004.
sentence because the trial court ran his sentences
consecutively, rather than concurrently as recommended by the
Coleman further claimed that counsel was ineffective for
failing to object to the trial court’s failure to follow his
“jury fixed” sentence.
The Commonwealth filed its reply on
April 19, 2004, arguing that Coleman had confused the jury’s
role in recommending sentencing with the trial court’s ultimate
authority under KRS 532.110 16 to run multiple sentences
concurrently or consecutively, and counsel had no reason to
object based on the trial court’s statutory authority.
trial court entered an order on May 28, 2004, denying Coleman’s
RCr 11.42 motion, and this appeal followed. 17
Coleman argues that the trial court abused its
discretion by increasing his sentence to a consecutive, ten-year
sentence, despite a recommendation by the jury of a four-year,
It is well-established that under
KRS 532.110(1) states as follows:
When multiple sentences of imprisonment
are imposed on a defendant for more than one
(1) crime, including a crime for which a
previous sentence of probation or conditional
discharge has been revoked, the multiple
sentences shall run concurrently or
consecutively as the court shall determine at
the time of sentence[.]
Although Coleman’s claims would have been more appropriately addressed in
his direct appeal rather than in this collateral proceeding under RCr 11.42,
since the Commonwealth has not raised the issue we have chosen to address the
merits of the appeal. See Sanborn v. Commonwealth, 975 S.W.2d 905 (Ky. 1998)
(noting that an RCr 11.42 motion is limited to issues that were not raised
and could not have been raised in a direct appeal).
Kentucky’s bifurcated sentencing procedure, the jury determines
the maximum number of years for a sentence for each conviction. 18
The trial judge, thereafter, has the power only to reduce the
sentence pursuant to KRS 532.110, and to determine whether
multiple sentences will be run concurrently or consecutively.
In Dotson v. Commonwealth, 19 our Supreme Court distinguished the
roles of the judge and the jury in the sentencing process by
stating as follows:
KRS 532.055(2) provides in part that the
jury will determine punishment. Such
determination relates to the initial
establishment of a sentence and not to how
or in what manner the sentence is to be
served. . . . The trial judge always has
the power to reduce a sentence and not to
increase one. . . . There is no statutory
provision for the jury to fix the manner of
serving a sentence. 20
Under the interpretation of the sentencing statutes in Dotson,
the trial court in this case simply chose not to accept the
jury’s recommendation as to the manner in which Coleman’s
sentences were to be served.
KRS 532.055(2) states that “[u]pon return of a verdict of guilty or guilty
but mentally ill against a defendant, the court shall conduct a sentencing
hearing before the jury, if such case was tried before a jury. In the
hearing the jury will determine the punishment to be imposed within the range
provided elsewhere by law. The jury shall recommend whether the sentences
shall be served concurrently or consecutively” [emphasis added].
740 S.W.2d 930, 931 (Ky. 1987).
Dotson, 740 S.W.2d at 931-32.
Coleman refers this Court to the United States Supreme
Court case of Blakely v. Washington, 21 for the proposition that a
trial court cannot set aside a jury-declared penalty or add on
additional time to a sentence without first consulting the jury.
However, Coleman’s citation to Blakely is misplaced because
Blakely entered a guilty plea and was sentenced by the trial
The trial court violated Blakely’s constitutional rights
by exceeding the statutory maximum penalty for his crime based
on a factual finding the trial court had no authority to make.
Blakely does not apply to the case before us, where Coleman was
found guilty by a jury based on facts in evidence and had a
sentence established by a jury within the statutory
Further, Coleman cites Tamme v. Commonwealth, 22
and Grooms v. Commonwealth, 23 which refer to the use of the word
“recommend” in reference to a jury’s responsibility during
Again, Coleman has misinterpreted the law because
those cases only refer to the word “recommend” as utilized in
capital punishment, or death penalty, cases.
Actually, Coleman has cited no relevant legal
authority in support of his argument.
While it is unclear from
our review of the record what the trial court’s reasoning was in
542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
759 S.W.2d 51 (Ky. 1988).
756 S.W.2d 131 (Ky. 1988).
running Coleman’s sentences consecutively rather than
concurrently, we note that Coleman did not raise the issue until
after his probation had been revoked.
An abuse of discretion
only occurs when a trial judge’s decision is arbitrary,
unreasonable, unfair, or unsupported by sound legal principles. 24
Because the trial court was well-within its statutory authority
when it sentenced Coleman, it properly denied his RCr 11.42
Coleman’s only other argument references his trial
counsel’s alleged ineffectiveness for failing to object to the
trial court’s running his sentences consecutively rather than
concurrently in accordance with the jury’s recommendation.
order to establish ineffective assistance of counsel, a person
must satisfy a two-part test showing both that counsel’s
performance was deficient and that the deficiency caused actual
prejudice resulting in a proceeding that was fundamentally
unfair and unreliable. 25
The burden is on the defendant to
overcome a strong presumption that counsel’s assistance was
constitutionally sufficient or that under the circumstances
See Lester v. Commonwealth, 132 S.W.3d 857, 863 (Ky. 2004) (citing Goodyear
Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000)).
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984); Commonwealth v. Tamme, 83 S.W.3d 465, 469 (Ky. 2002); Foley v.
Commonwealth, 17 S.W.3d 878, 884 (Ky. 2000).
counsel’s action might be considered “trial strategy.” 26
must be highly deferential in reviewing defense counsel’s
performance and should avoid second-guessing counsel’s actions
based on hindsight. 27
In assessing counsel’s performance, the
standard is whether the alleged acts or omissions were outside
the wide range of prevailing professional norms based on an
objective standard of reasonableness. 28
“‘A defendant is not
guaranteed errorless counsel, or counsel adjudged ineffective by
hindsight, but counsel reasonably likely to render and rendering
reasonably effective assistance.’” 29
“A fair assessment of
attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsel's challenged conduct and to
evaluate the conduct from counsel's perspective at the time. . .
There are countless ways to provide effective assistance in
any given case. Even the best criminal defense attorneys would
not defend a particular client in the same way.” 30
Strickland, 466 U.S. at 689; Moore v. Commonwealth, 983 S.W.2d 479, 482
(Ky. 1998); Sanborn, 975 S.W.2d at 912.
Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky. 2001); Harper v.
Commonwealth, 978 S.W.2d 311, 315 (Ky. 1998).
Strickland, 466 U.S. at 688-89; Tamme, 83 S.W.3d at 470; Commonwealth v.
Pelfrey, 998 S.W.2d 460, 463 (Ky. 1999).
Sanborn, 975 S.W.2d at 911 (quoting McQueen v. Commonwealth, 949 S.W.2d 70
Hodge v. Commonwealth, 116 S.W.3d 463, 469 (Ky. 2003).
In order to establish actual prejudice, a defendant
must show a reasonable probability that the outcome of the
proceeding would have been different or was rendered
fundamentally unfair and unreliable. 31
Where the movant is
convicted in a trial, a reasonable probability is a probability
sufficient to undermine confidence in the outcome of the
proceeding considering the totality of the evidence before the
Trial counsel’s alleged failure to object at
sentencing fails to satisfy either prong of Strickland.
objection by counsel to Coleman’s being sentenced consecutively
would have been meritless, because it was within the trial
court’s authority to do so as stated in KRS 532.110(1).
result, counsel was effective and Coleman’s constitutional
rights were not violated.
For the foregoing reasons, the order of the Fayette
Circuit Court is affirmed.
Strickland, 466 U.S. at 694; Bowling v. Commonwealth, Ky., 80 S.W.3d 405,
Strickland, 466 U.S. at 694-95.
Foley, 17 S.W.3d at 884.
See also Bowling, 80 S.W.3d at 412; and
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Lester K. Coleman, Pro Se
Central City, Kentucky
Gregory D. Stumbo
Susan R. Lenz
Assistant Attorney General