JEFFREY CURTIS v. COMMONWEALTH OF KENTUCKY
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RENDERED: APRIL 6, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2005-CA-001367-MR
AND
NO. 2006-CA-000041-MR
JEFFREY CURTIS
v.
APPELLANT
APPEAL FROM CALLOWAY CIRCUIT COURT
HONORABLE DENNIS R. FOUST, JUDGE
ACTION NO. 02-CR-00128
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON AND VANMETER, JUDGES; PAISLEY,1 SENIOR JUDGE.
THOMPSON, JUDGE: Jeffrey Curtis, pro se, appeals from two orders of the Calloway
Circuit Court denying post-conviction relief without holding evidentiary hearings.
Finding no error, we affirm.
A Calloway County grand jury indicted Curtis on July 26, 2002, charging
him with manufacturing methamphetamine by “possessing equipment and materials for
1
Senior Judge Lewis G. Paisley sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
manufacturing methamphetamine with the intent to manufacture methamphetamine;”
trafficking in a controlled substance (cocaine), first-degree; possession of drug
paraphernalia; and receiving stolen property over $300. On October 28, 2002, Curtis,
appearing with counsel, entered into a plea agreement to the offenses specified in the
indictment. In exchange for his guilty plea, the Commonwealth recommended that Curtis
be sentenced to a total of ten (10) years. In addition, his ten-year sentence would be
served concurrently with his sentence in an unrelated case. Following a plea colloquy
with Curtis, the trial court accepted the plea after finding that Curtis' guilty plea was
made knowingly, intelligently, and voluntarily. On December 9, 2002, pursuant to the
plea agreement, the trial court sentenced Curtis to ten years' imprisonment and ordered
that the sentence be served concurrent to the unrelated case.
On April 8, 2005, Curtis filed a pro se motion for relief pursuant to CR
59.01 alleging that, as a consequence of our Supreme Court's decision in Kotila v.
Commonwealth, 114 S.W.3d 226 (Ky. 2003), his conviction should be amended from
manufacturing methamphetamine to first-degree possession of a controlled substance.
On June 10, 2005, treating Curtis' CR 59.01 motion as a CR 60.02 motion, the trial court
denied the motion.
On November 3, 2005, Curtis filed a motion to vacate the judgment
pursuant to RCr 11.42. In his motion, Curtis contended that his guilty plea was not
intelligently and voluntarily entered because he was deprived of effective assistance of
counsel. On November 30, 2005, the Calloway Circuit Court denied Curtis' motion
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without an evidentiary hearing. Curtis appeals both orders, and his appeals have been
consolidated and will be disposed of by this opinion.
First, Curtis argues that the trial court erred by overruling his CR 60.02
motion to amend his judgment of conviction. Curtis argues that the Kotila decision,
decided after his conviction, has resulted in his continued imprisonment for actions that
do not constitute a crime. In Kotila, the court held that a conviction under KRS
218A.1432(1)(b), the manufacturing methamphetamine statute, requires proof that the
defendant possessed all of the chemicals or equipment necessary to manufacture
methamphetamine. Following a search of his residence, Curtis was found in possession
of several items used in the manufacturing of methamphetamine but not enough items to
be convicted under Kotila (i.e., he did not possess all the chemicals or all the equipment
necessary to manufacture methamphetamine). Thus, Curtis seeks an amendment of his
judgment of conviction.
However, notwithstanding Curtis' argument, we hold that he is procedurally
barred from proceeding with his CR 60.02 motion. In Gross v. Commonwealth, 648
S.W.2d 853, 857 (Ky. 1983), the Court held that:
a defendant is required to avail himself of RCr 11.42 while in
custody under sentence or on probation, parole or conditional
discharge, as to any ground of which he is aware, or should
be aware, during the period when this remedy is available to
him. Final disposition of that motion, or waiver of the
opportunity to make it, shall include all issues that reasonably
could have been presented in that proceeding. The language
of RCr 11.42 forecloses the defendant from raising any
questions under CR 60.02 which are “issues that could
reasonably have been presented” by RCr 11.42 proceedings.
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In this case, Curtis filed a CR 59.02 motion, which was treated as a CR 60.02 motion, on
April 8, 2005. He then filed a RCr 11.42 motion on November 3, 2005. Since Curtis had
not filed his RCr 11.42 prior to filing his CR 60.02, the trial court did not err in denying
his CR 60.02 motion.
In regard to his RCr.11.42 motion, Curtis raises five grounds for relief: (1)
he was denied the effective assistance of counsel when his defense counsel gave him
deficient advice at the time it was given; (2) his plea was not made intelligently and
voluntarily because he did not understand the nature of the charge against him; (3) the
trial court erred by ruling that he had waived his right to challenge the sufficiency of the
evidence because he had entered into a plea agreement; (4) he was denied the effective
assistance of counsel when his defense counsel failed to file a pretrial motion to suppress
evidence obtained during the search of his residence; and (5) the trial court failed to
conduct an evidentiary hearing. We will address each of the issues in turn.
As an introductory matter, the standard employed on judicial review to
measure ineffective assistance of counsel has been set out in Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, the Strickland test is
modified when the ineffective assistance of counsel is alleged to have resulted in the
entering of a guilty plea. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203
(1985). Under the modified test, the movant must “show (1) that 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
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Sixth Amendment and (2) that the deficient performance prejudiced the defense by so
seriously affecting the process that there is a reasonable probability that the defendant
would not have pled guilty, and the outcome would have been different.” Centers v.
Commonwealth, 799 S.W.2d 51, 55 (Ky.App. 1990). “In determining whether the degree
of skill exercised by the attorney meets the proper standard of care, the attorney's
performance is judged by the degree of its departure from the quality of conduct
customarily provided by the legal profession.” Id.
Curtis first alleges that he was denied the effective assistance of counsel
when his defense counsel gave him deficient advice concerning his manufacturing
methamphetamine charge. More precisely, Curtis alleges that he was hurried and coerced
into accepting the plea agreement despite his counsel's awareness of a potentially helpful
pending Kentucky Supreme Court case.2 Curtis alleges that his defense counsel should
have petitioned the trial court for a delay pending the outcome of Kotila. He alleges that
he would not have been found guilty of manufacturing methamphetamine but for defense
counsel's failure to petition the trial court for a delay. Notwithstanding this argument,
Curtis was indicted on July 26, 2002, and his judgment of conviction was entered on
December 10, 2002. Kotila would not become final for another ten months.3 Although
2
Kotila v. Commonwealth, 114 S.W.3d 226 (Ky. 2003). In Kotila, the court held that KRS
218A.1432(1)(b), manufacturing methamphetamine, required the Commonwealth to prove that
the defendant possessed either all the chemicals or all the equipment necessary to manufacture
methamphetamine. Prior to Kotila, the Commonwealth could obtain a conviction against a
defendant who possessed either some of the chemicals or some of the equipment necessary to
manufacture methamphetamine.
3
Kotila became final after our Supreme Court denied rehearing on September 18, 2003. Kotila
has since been superseded by statute. In 2005, the legislature amended KRS 218A.1432(1)(b) to
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Curtis may contend otherwise, “[f]ailure to anticipate correctly a future ruling of the court
does not present an ineffective assistance claim.” Sanborn v. Commonwealth, 975
S.W.2d 905, 913 (Ky. 1998). There are many factors involved in advising a defendant to
accept a plea offer; therefore, “[j]udicial review of the performance of defense counsel
must be very deferential to counsel and to the circumstances under which they are
required to operate.” Hodge v. Commonwealth, 116 S.W.3d 463, 469 (Ky. 2003).
As a subpart to his first allegation, Curtis argues that he was not guilty of
manufacturing methamphetamine at the time of his conviction or after Kotila. While
challenging the sufficiency of the evidence is typically improper under RCr 11.42 as held
in Boles v. Commonwealth, 406 S.W.2d 853, 854-855 (Ky. 1966), if defense counsel's
performance fell outside the range of professionally competent assistance, the defendant
maintains the right to argue the sufficiency of the evidence to demonstrate prejudice in an
ineffective assistance of counsel claim. Centers v. Commonwealth, supra, at 55.
However, when he was arrested, Curtis possessed the following: a jar containing ether, a
plastic bottle containing suspected sulfuric acid and salt, and a generator. He further was
in possession of a plastic bag containing suspected methamphetamine. These are all
items used in the manufacturing of methamphetamine. Fulcher v. Commonwealth, 149
S.W.3d 363, 369 (Ky. 2004). Under the law at the time, KRS 218A.1432(1), enacted in
1998, provided:
permit a conviction for manufacturing methamphetamine when an individual possesses either
two or more of the chemicals or pieces of equipment necessary to manufacture
methamphetamine.
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A person is guilty of manufacturing methamphetamine when
he knowingly and unlawfully:
(a) Manufactures methamphetamine; or
(b) Possesses the chemicals or equipment for the manufacture
of methamphetamine with the intent to manufacture
methamphetamine.
From these facts, based on KRS 218A.1432(1) prior to Kotila's clarification of the
statute, there was a sufficient evidentiary basis to support Curtis' conviction.4
Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983) (if under the evidence as a whole
it would not be clearly unreasonable for the fact finder to find the defendant guilty then
the conviction will be upheld). Therefore, Curtis was not deprived of the effective
assistance of counsel when his counsel advised him to accept the Commonwealth's plea
offer.
Curtis next alleges that his plea was not made intelligently and voluntarily
because he did not understand the nature of the charges against him. Curtis asserts that
his defense counsel did not explain to him the nature of the charges that constituted his
plea agreement. However, during his plea colloquy, Curtis affirmed to the trial court that
his defense counsel had explained to him the nature of the charges, penalties, and
defenses in connection with his plea agreement. Curtis affirmed that he understood his
legal situation and was satisfied with his defense counsel's service. Finally, prior to
entering into his plea agreement, Curtis alleges that he informed his defense counsel
about the possible ramifications of Kotila in regards to his manufacturing of
4
While Kotila has no application to Curtis' appeal, in Matheney v. Commonwealth, 191 S.W.3d
599 (Ky. 2006), the Court overruled Kotila to the extent that a conviction under KRS 218A.1432
only requires possession of at least two chemicals or two pieces of equipment necessary to
manufacture methamphetamine.
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methamphetamine charge. This fact gravely undermines Curtis' claim that his defense
counsel did not adequately apprise him of the nature of his charges. From these facts,
Curtis' allegation is refuted by the record, Harper v. Commonwealth, 978 S.W.2d 311,
314 (Ky. 1998).
Curtis next alleges that the trial court erred by ruling that his guilty plea
waived his right to challenge the sufficiency of the evidence supporting his
manufacturing of methamphetamine conviction. However, Curtis has not alleged how
his constitutional rights were deprived by the trial court's decision. Commonwealth v.
Basnight, 770 S.W.2d 231, 237 (Ky.App. 1989) The trial court ruled that “[a] guilty plea
waives any defenses, including the defense of insufficient evidence, that might be
raised.” We find this a correct recitation of the law and need not further address Curtis'
allegation. Johnson v. Commonwealth, 103 S.W.3d 687, 696 (Ky. 2003).
Curtis next alleges that he was denied the effective assistance of counsel
when his defense counsel failed to file a pre-trial motion to suppress evidence obtained
during the search of his residence. Curtis alleges that his residence was searched without
an arrest warrant or his consent. Curtis alleges that had his defense counsel filed a
suppression motion that evidence would have been suppressed and the charges pending
against him would have been dismissed.
When a defendant alleges that his counsel was ineffective, he must meet the
two-part test outlined in Strickland v. Washington, supra. If this ineffectiveness is
premised on his counsel's failure to competently litigate a Fourth Amendment claim, the
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defendant must also prove that his Fourth Amendment claim is meritorious. If this is
done, the defendant then has to prove actual prejudice by demonstrating a reasonable
probability that the verdict would have been different absent the excludable evidence.
Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 2583, 91 L.Ed.2d 305
(1986). Therefore, we must determine whether there was a reasonable probability that
the suppression motion would have been granted and if the absence of the excluded
evidence would have resulted in a dismissal of the charges.
From a view of the record, Curtis has not met his burden. First, Curtis' wife
executed a written consent to the search of their residence. Although Curtis asserts that
the written consent was given after the search, the two uniform citations make clear that
Curtis' wife's written consent was given prior to the search. In Commonwealth v.
Sebastian, 500 S.W.2d 417, 419 (Ky. 1973), the court held that a wife's voluntary consent
to a search of a home makes the evidence seized against her and her husband admissible
against both parties. Although Curtis cites Georgia v. Randolph, 547 U.S. ----, 126 S.Ct.
1515, 164 L.Ed.2d 208 (2006) for the proposition that his wife's consent was not a valid
consent as to him, the Randolph decision was decided several years after Curtis' sentence
became final and is not retroactive as to this collateral appeal.5
5
In Teague v. Lane, 489 U.S. 288, 310-13, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) in a
plurality opinion, the Court held that new constitutional rules of criminal procedure (e.g.,
evidentiary rules) will not be applicable to cases on collateral review unless they fall within one
of the two exceptions to this general rule. The first exception is that a new rule should be applied
retroactively if it places certain kinds of primary, private individual conduct beyond the power of
the criminal law-making authority to prohibit it. Id. At 311. The application of the third-party
consent doctrine does not provide constitutional protection to any primary activity whatsoever.
The second exception is that a new rule should be applied retroactively if it requires the
observance of procedures that are implicit in the concept of ordered liberty. Id. In Beard v.
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Curtis finally argues that the trial court failed to conduct an evidentiary
hearing. Curtis alleges that his defense counsel advised him to plead guilty before
receiving the discovery in the case. However, the record demonstrates that the
Commonwealth Attorney mailed Curtis' defense counsel its discovery on August 5, 2002,
which was over two months before Curtis accepted his guilty plea on October 28, 2002.
Finally, the court concludes that all of Curtis' allegations are without merit
and do not constitute sufficient grounds to invalidate his conviction. As explained above,
the record refutes every claim that the defendant has alleged. Thus, it was unnecessary to
grant an evidentiary hearing. Harper, supra.
For the foregoing reasons, the orders of the Calloway Circuit Court denying
Curtis' motions for post-conviction relief under CR 60.02 and RCr 11.42 are affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jeffrey Curtis, Pro se
Burgin, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Jeffrey A. Cross
Assistant Attorney General of Kentucky
Frankfort, Kentucky
Banks, 542 U.S. 406, 417, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004), the Court held that the
second Teague exception is limited in scope, and consequently, “...it should come as no surprise
that we have yet to find a new rule that falls under the second Teague exception.” Accordingly,
we conclude that the alleged infringement that Curtis seeks to remedy by invoking Randolph
does not destroy the concept of ordered liberty.
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