GARY JODY WEISS v. COMMONWEALTH OF KENTUCKY
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RENDERED:
AUGUST 11, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2005-CA-000550-MR
GARY JODY WEISS
v.
APPELLANT
APPEAL FROM CLINTON CIRCUIT COURT
HONORABLE EDDIE C. LOVELACE, JUDGE
ACTION NO. 99-CR-00026
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HENRY AND SCHRODER, JUDGES; EMBERTON,1 SENIOR JUDGE.
SCHRODER, JUDGE:
Gary Jody Weiss, pro se, appeals from an order
of the Clinton Circuit Court denying his RCr 11.42 motion.
We
agree with the trial court that defense counsel did not render
ineffective assistance.
Hence, we affirm.
In an indictment returned on August 26, 1999, Weiss,
along with Randall G. Hicks, was charged with murder.
The
indictment charged that on December 30, 1993, Weiss and Hicks
1
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
had intentionally caused the death of Dwight M. Lawrence.
In
October, 1999, the Commonwealth filed notice of intent to seek
the death penalty.
On March 19, 2001, pursuant to a plea agreement, Weiss
pled guilty to an amended charge of complicity to commit murder,
in exchange for the Commonwealth’s recommendation of a life
sentence under 1993 law, and Weiss’s agreement to testify at any
subsequent proceeding involving this matter.
The trial court
accepted the plea, and, on April 16, 2001, Weiss was sentenced
in accordance with the plea agreement.
On April 17, 2002, Weiss, pro se, filed an RCr ll.42
motion seeking to have his plea and sentence vacated.
In the
RCr 11.42 motion, Weiss claimed ineffective assistance of
counsel alleging that 1) a conflict of interest was created by
counsel’s hiring the ex-prosecutor as his assistant; 2) counsel
failed to challenge the death penalty; 3) counsel failed to
advise of possible defenses; and 4) counsel failed to inform
Weiss of what the plea entailed.
The court appointed counsel,
and an evidentiary hearing was held in June, 2004.
In an order
entered February 2, 2005, the trial court denied the RCr 11.42
motion.
This appeal followed.
Weiss’s brief fails in many regards to comply with the
requirements of CR 76.12, including the failure to provide any
citations to the record.
Weiss’s brief also merely “adopts” his
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memorandum to the trial court on the RCr 11.42 motion, which he
includes in the appendix to his brief, in lieu of presenting
these arguments in the brief.
In light of the leeway which is
afforded to pro se litigants, however, we will consider the
merits of Weiss’s appeal.
Beecham v. Commonwealth, 657 S.W.2d
234, 236 (Ky. 1983); Case v. Commonwealth, 467 S.W.2d 367, 368
(Ky. 1971).
Weiss argues that the trial court’s decision
overruling his RCr 11.42 motion was contrary to Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
Weiss first contends that the trial court considered
his claims under the wrong standard, alleging that it used the
“farce and mockery” standard, rather than the “reasonable
competence” standard in assessing counsel’s performance.
While
the court made the observation in its order denying the RCr
11.42 motion that Weiss’s action “represents a complete and
total waste of judicial resources and is a farce upon the legal
system”, the court cited to and applied the Strickland test when
considering Weiss’s claims of ineffective assistance of counsel.
Accordingly, we conclude this argument to be completely without
merit.
We next turn to the ineffective assistance of counsel
claims raised in the RCr 11.42 motion.
In order to prove
ineffective assistance of counsel on a guilty plea, the
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defendant must show (1) counsel made errors so serious that
counsel’s performance fell outside the wide range of
professionally competent assistance as the counsel was not
performing as counsel guaranteed by the Sixth Amendment and (2)
that the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984); Gall v. Commonwealth, 702 S.W.2d 37, 39 (Ky.
1985).
In order to satisfy the prejudice prong on a guilty
plea, 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.
Hill
v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203
(1985); Sparks v. Commonwealth, 721 S.W.2d 726, 728 (Ky.App.
1986).
In his RCr 11.42 motion, Weiss first argued that a
conflict of interest was created when his defense attorney,
Charlie Pharis, hired as his assistant, Tom Simmons, an exprosecutor who had built the case against him.
Weiss claimed
that he was convinced by Pharis, and Simmons, the ex-prosecutor,
that he would get the death penalty, which coerced him into
taking the plea.
The only evidence which we are aware was presented to
the trial court as to this allegation is the testimony of Pharis
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and Weiss.2
In its February, 2005, order denying the RCr 11.42
motion, the trial court stated that “Weiss [] attempted to
convince this Court that Thomas Simmons whom at one time was an
Assistant Commonwealth Attorney entered into the practice of law
with Pharis during this time frame, thus creating a conflict of
interest.”
The trial court’s order went on to state that
“Pharis testified that he did not become law partners with
Simmons until after Weiss’ guilty plea and that before becoming
law partners he (Pharis) occupied a building separate from
Simmons.
Pharis testified without equivocation that he and
Simmons were not law partners during the time that Pharis
represented Weiss.”
When a trial court conducts an evidentiary
hearing, a reviewing court must defer to the determination of
the facts and witness credibility made by the trial judge.
Sanborn v. Commonwealth, 975 S.W.2d 905, 909 (Ky. 1998).
Accordingly, we defer to the trial court’s findings on this
issue.
Id.
Weiss next argues that counsel was ineffective for
failing to challenge the death penalty.
Weiss contends that he
was not indicted for any of the aggravating factors set forth in
2
We are relying on the trial court’s order denying the RCr 11.42 motion,
which summarized the testimony presented at the evidentiary hearing. The
record does not contain a recording or transcript of the hearing. The record
contains an affidavit from the Clinton County Circuit Clerk’s office, which
states that the tape of the evidentiary hearing, as well as tapes of other
proceedings in this case, could not be located. Weiss does not raise this as
an issue on appeal.
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the Commonwealth’s notice to seek the death penalty.
Therefore,
he contends that the aggravating factors amounted to an illegal
broadening of the indictment, and that counsel was ineffective
for doing nothing to prevent this violation.
Aggravators are not required to be charged in the
indictment.
2005).
St. Clair v. Commonwealth, 174 S.W.3d 474, 485 (Ky.
KRS 532.025(1) only requires the Commonwealth to provide
written notice of aggravating circumstances prior to trial.
Id.; Wheeler v. Commonwealth, 121 S.W.3d 173, 175 (Ky. 2003).
On October 11, 1999, the Commonwealth filed a notice of intent
to seek the death penalty, giving as aggravating factors that
the offense of murder was committed for the purpose of receiving
money or any other thing of value, KRS 532.025(2)(a)(4), and
committed while engaged in the commission of Robbery in the
First Degree, KRS 532.025(2)(a)(2).
On October 12, 1999, the
Commonwealth filed an amended notice of intent to seek the death
penalty, giving as aggravating factors that the offense of
murder was committed for the purpose of receiving money or any
other thing of value, KRS 532.025(2)(a)(4), and committed while
engaged in the commission of Burglary in the First Degree, KRS
532.025(2)(a)(2).
As no error occurred, counsel cannot be said
to have been deficient in this regard.
Weiss’s third argument in the RCr 11.42 motion is that
counsel was ineffective for failing to advise him of possible
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defenses.
Weiss argued that he has only a sixth grade
education, is of low intellectual functioning, was a drug
abuser, and was highly intoxicated during the alleged offense.
Therefore, Weiss contends that counsel should have pursued an
intoxication defense or brought his incompetency to the
attention of the court.
As to Weiss’s claim that counsel was deficient for
failing to request a competency evaluation, according to the
trial court’s order, at the evidentiary hearing “Pharis . . .
testified that Weiss did not ask for an evaluation.
Pharis was
aware of Weiss’ intelligence level, knew Weiss and his family
because Weiss and his family had previously worked for Pharis’
parents cutting tobacco.
Pharis . . . testified that in his
opinion Weiss was scared, but not mentally ill.”
Weiss provides
no evidence, other than his bare allegations, which suggests he
is or was incompetent.
the trial court.
Accordingly, we defer to the findings of
Sanborn, 975 S.W.2d at 909; Ivey v.
Commonwealth, 655 S.W.2d 506, 509 (Ky.App. 1983).
As to his
argument that counsel should have pursued an intoxication
defense, he again provides absolutely no support for this claim.
Failure to provide factual support for a claim as required by
RCr 11.42 warrants summary dismissal thereof.
Sanders v.
Commonwealth, 89 S.W.3d 380, 390 (Ky. 2002); RCr 11.42(2).
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Finally, Weiss argues that his attorney failed to
advise him of what the plea entailed.
Weiss alleges that he was
told that, as part of the plea bargain, in exchange for his
testimony, he would be granted parole at the earliest parole
hearing.
Again, there is no support in the record for Weiss’s
allegation, which is refuted by the transcript of the plea
hearing which only refers to eligibility for parole.
At the
plea hearing, following the court’s review of the Commonwealth’s
recommendation, defense counsel told the court that Weiss
“wanted me to specify the reason that [the plea agreement]
states under the 1993 law is it will give him an eligibility for
parole earlier than the current law.”
(Emphasis added.)
Following counsel’s explanation, Weiss agreed that he wished the
court to accept the plea.
Also, when asked by the court if in
return for his plea, anyone had made any promises of any type,
Weiss answered no.
As to Weiss’s additional argument that he
was not made aware that there is no guarantee of parole, “[a]
guilty plea that is brought about by a person’s own free will is
not less valid because he did not know all possible consequences
of the plea and all possible alternative courses of action.”
Turner v. Commonwealth, 647 S.W.2d 500, 501 (Ky. 1982).
For the aforementioned reasons, we conclude the trial
court did not err in finding that Weiss’s counsel did not render
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ineffective assistance.
Accordingly, the order of the Clinton
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gary Jody Weiss, pro se
West Liberty, Kentucky
Gregory D. Stumbo
Attorney General
Susan Roncarti Lenz
Assistant Attorney General
Frankfort, Kentucky
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