CHRISTOPHER MCFARLAND v. COMMONWEALTH OF KENTUCKY
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RENDERED:
SEPTEMBER 29, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-002177-MR
CHRISTOPHER MCFARLAND
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN R. GRISE, JUDGE
ACTION NO. 01-CR-00110-002
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JUDGE.
ABRAMSON AND GUIDUGLI, JUDGES; BUCKINGHAM,1 SENIOR
GUIDUGLI, JUDGE:
Christopher McFarland appeals from an order of
the Warren Circuit Court denying his motion for RCr 11.42
relief.
McFarland argues that the trial court erred in failing
to grant an evidentiary hearing on the motion.
For the reasons
stated below, we affirm the order on appeal.
On February 21, 2001, McFarland was indicted by the
Warren County grand jury on one count each of receiving stolen
1
Senior Judge David C. Buckingham, sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
property valued over $300 and for being a second-degree
persistent felony offender.
It was alleged that McFarland stole
a vehicle in Bowling Green, Kentucky, and fled on foot after
being pulled over by police.
McFarland’s step-brother, Ralph
Glass, was an occupant in the vehicle.
He originally told the
police that a third party had been driving the stolen vehicle,
but later changed his testimony to identify the driver as
McFarland.
The matter proceeded to trial, whereupon the jury
returned a guilty verdict on the charge of receiving stolen
property over $300.
At the conclusion of the penalty phase, the
jury found McFarland to be a persistent felony offender in the
second degree, and recommended a total sentence of 10 years in
prison.
On February 15, 2002, the Circuit Court sentenced
McFarland in accordance with the jury’s recommendation.
McFarland appealed his conviction, arguing that the
trial court improperly admitted hearsay evidence and failed to
allow McFarland the right to confront the witnesses against him.2
A panel of this Court affirmed the judgment of conviction on
April 18, 2003.
The Kentucky Supreme Court denied discretionary
review on March 10, 2004.
On July 8, 2005, McFarland filed a pro se RCr 11.42
motion, which forms the basis of the instant appeal.
2
Appeal No. 2002-CA-000427-MR.
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The
circuit court granted McFarland’s request to proceed in forma
pauperis and appointed the Department of Public Advocacy to
represent him.
The order also stated that “an evidentiary
hearing shall be assigned upon proper motion of either party’s
attorney, or if the Court determines one is necessary.”
On August 18, 2005, the Commonwealth filed a brief
arguing that McFarland’s motion for RCr 11.42 relief failed to
recite facts sufficient to comply with RCr 11.42(2).
In
response, a supervisor for the Department of Public Advocacy
moved for an extension of time to assign an attorney and
supplement the RCr 11.42 motion.
On September 6, 2005, the
Circuit Court granted the motion for an extension of time,
allowing the Department an additional 90 days to supplement the
original motion.
Less than one month later, the circuit court
entered an order denying McFarland’s motion for RCr 11.42 relief
on the grounds that McFarland failed to allege facts sufficient
to comply with RCr 11.42(2).
This appeal followed.
McFarland now argues that the trial court committed
reversible error when it failed to grant an evidentiary hearing
on his motion for relief.
Subsumed in this argument is his
contention that the court abused its discretion when it disposed
of his motion prior to the expiration of the 90-day period it
had granted for supplementation of the motion.
He argues that
the motion set forth facts which, if true, warranted relief,
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that counsel’s performance was deficient and prejudicial under
Strickland,3 and that the allegations raised in the motion could
not be resolved by reference to the record.
In sum, he seeks an
order reversing the order on appeal and remanding the matter for
an evidentiary hearing.
We have examined the record, the written arguments and
the law, and find no basis for reversing the order denying
McFarland’s RCr 11.42 motion.
On the first issue, whether
McFarland’s pro se motion failed to allege facts to support his
claim of ineffective assistance, the circuit court properly
answered this question in the affirmative.
RCr 11.42(2) states,
the “motion shall . . . state specifically the grounds on which
the sentence is being challenged and the facts on which the
movant relies in support of such grounds.
Failure to comply
with this section shall warrant a summary dismissal of the
motion.”
Each of McFarland’s claims of ineffective assistance
either fails to state the facts on which he relies, or is
refuted by the record.
For example, McFarland’s claim that
counsel was ineffective for failing to call McFarland’s wife as
an alibi witness does not reveal what his wife would have
testified to, or whether counsel was made aware of her alleged
alibi statement.
Decisions relating to witness selection are
3
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 647
(1984).
-4-
left to trial counsel’s discretion and “will not be secondguessed by hindsight.”4
Similarly, McFarland claimed that trial
counsel should have impeached the testimony of the
Commonwealth’s witness, Betty Glass, who is McFarland’s mother,
and also contends that counsel should have called an expert
witness.
Again, McFarland does not identify the basis for
Glass’s impeachment, the identity of the expert, or what the
expert would have testified to.
McFarland’s also contends that the Circuit Court erred
in failing to conduct an evidentiary hearing.
on this issue.
We find no error
Because the court properly found that
McFarland’s motion failed to allege facts sufficient to support
his claim of ineffective assistance, no additional inquiry was
merited.
Lastly, McFarland argues that his trial counsel’s
performance was deficient and resulted in prejudice under
Strickland.
As the parties are well aware, McFarland’s claims
of ineffective assistance would merit vacating and setting aside
the judgment only if McFarland 1) identified specific errors by
counsel, 2) demonstrated that counsel’s errors were objectively
unreasonable at the time of trial, 3) rebutted the strong
presumption that counsel’s actions were the result of trial
strategy, and 4) demonstrated that the errors prejudiced his
4
Foley v. Commonwealth, 17 S.W.3d 878, 885 (Ky. 2000).
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right to a fair trial to such a degree that a reasonable
probability exists that he would have been found not guilty but
for the errors.5
McFarland’s argument on this issue is misplaced, as
the Circuit Court’s summary dismissal of his motion precluded
the court from entering into a Strickland analysis.
Having
disposed of the motion for failure to allege the specific facts
on which McFarland relied in support of his claim, the court was
never availed of the opportunity to apply the facts at bar to
Strickland.
Accordingly, we find no error on this issue.
For the foregoing reasons, we affirm the order of the
Warren Circuit Court denying McFarland’s motion for RCr 11.42
relief.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Linda Roberts Horsman
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Ian G. Sonego
Assistant Attorney General
Frankfort, Kentucky
5
Strickland, 466 U.S. 668.
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