MCKELLER (CALVIN GLEN) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: MARCH 5, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-001180-MR
CALVIN GLENN MCKELLER
APPELLANT
ON REMAND FROM SUPREME COURT OF KENTUCKY
2008-SC-000452-DG
v.
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE A. C. MCKAY CHAUVIN, JUDGE
ACTION NO. 00-CR-001671
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON AND STUMBO, JUDGES; GRAVES,1 SENIOR JUDGE.
STUMBO, JUDGE: This appeal is before us on Remand from the Kentucky
Supreme Court for consideration of an order of the Jefferson Circuit Court denying
Calvin Glenn McKeller’s motion for RCr 11.42 relief from a criminal judgment.
Senior Judge John W. Graves sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
1
McKeller also contends that he was entitled to an evidentiary hearing on the
motion. For the reasons stated below, we affirm the Order on appeal.
On January 12, 2000, McKeller was involved in an altercation with
two individuals in front of a Jefferson County, Kentucky residence. During the
confrontation, McKeller fired a pistol at them, striking each of them.
Thereafter, McKeller was indicted by the Jefferson County grand jury
on two counts of first-degree assault. By way of a separate indictment, McKeller
was charged with one count of possession of a handgun by a convicted felon, and
with being a persistent felony offender in the first-degree.
The matter proceeded to trial, resulting in a jury verdict of guilty on
two counts of assault in the fourth-degree and one count of possession of a
handgun by a convicted felon. McKeller was also found to be a persistent felony
offender in the second-degree. The jury recommended a sentence of twelve
months in prison on the assault charges and ten years on the firearm possession
charge. The sentence was enhanced by the PFO conviction for a total sentence of
20 years in prison.
McKeller prosecuted a direct appeal to the Kentucky Supreme Court.
The sole issue raised therein was McKeller’s claim that KRS 527.040, which
prohibits the possession of a handgun by a convicted felon, violated Section 1(7) of
the Kentucky Constitution which provides that all men have the “right to bear arms
in defense of themselves and of the State.” The Kentucky Supreme Court
summarily affirmed, noting that the issue had been previously raised and rejected
in Eary v. Commonwealth, 659 S.W.2d 198 (Ky. 1983). The opinion was rendered
on April 25, 2002.
Thereafter, McKeller filed a pro se CR 60.02 motion in Jefferson
Circuit Court. He argued therein that the Commonwealth improperly failed to
provide exculpatory evidence contained in a 911 recording, and that this evidence
was newly discovered and justified CR 60.02 relief. On November 12, 2002, the
circuit court rendered an Order denying the motion. The court found that the 911
recording was not newly discovered, evidenced by the fact that the trial judge
excluded its admission into evidence on August 12, 2001.2
McKeller filed a “Motion for Findings of Fact and Conclusions” on
November 20, 2002, in which he claimed that the November 12, 2002 Order
mistakenly referenced another proceeding. The trial judge responded with an
Order on January 3, 2003, wherein he acknowledged “confusing this case with
another CR 60.02 case that was filed” and setting a hearing on McKeller’s CR
60.02 motion. McKeller then received appointed counsel from the Department of
Public Advocacy, and after a series of delays, the Commonwealth tendered a
responsive memorandum on May 22, 2003. In addressing McKeller’s CR 60.02
motion, the Commonwealth noted that he was contending that 1) the
Commonwealth committed fraud by withholding a 911 tape supporting McKeller’s
choice of evils defense, and 2) that the PFO conviction was improper because the
same felony convictions were presented to prove the possession of a handgun by a
This motion, and the order denying it, were not originally contained in the appellate record.
McKeller was allowed to supplement the record by way of an order rendered on October 9, 2007.
2
convicted felon charge. The Commonwealth maintained that McKeller’s motion
was time barred, and the issues raised should have been addressed - if at all - on
direct appeal to the Kentucky Supreme Court. On November 10, 2003, McKeller
moved for an evidentiary hearing on the motion.
On April 8, 2004, McKeller, through counsel, moved to convert his
pro se CR 60.02 motion to an RCr 11.42 motion. The corpus of this motion was
the allegation that McKeller’s trial counsel failed to call a witness, Antron Journey,
who would have corroborated McKeller’s claim that one of the victims had
previously threatened McKeller with a handgun. McKeller argued that if the
witness had been called and had so testified, that testimony would have bolstered
McKeller’s claim that he was forced to “choose the evil” of arming himself (as a
convicted felon) over the evil of being defenseless.
The circuit court never ruled on McKeller’s motion to convert the CR
60.02 motion to an RCr 11.42 motion. On May 5, 2004, the court rendered an
order apparently denying RCr 11.42 relief.3 It stated,
1. Defendant’s argument with regard to the propriety of
the PFO II conviction is a matter reserved for direct
appeal and, accordingly, is improperly raised under RCr
11.42.
2. Purported newly discovered evidence cannot be
considered pursuant to RCr 11.42.
3. Movant received effective assistance of counsel in
accordance with the applicable standards set out in
The order might also be interpreted as denying McKeller’s motion to convert his CR 60.02
motion to an RCr 11.42 motion.
3
Strickland v. Washington, 446 U.S. 668 (1984), and the
Defendant’s claims to the contrary are without sufficient
factual basis or legal merit.
4. No hearing on the matter is required insofar as there
are no material issues of fact which cannot be determined
on the record.
After the entry of the May 5, 2004, motion denying McKeller’s claim
of entitlement to RCr 11.42 relief, McKeller, through counsel, filed a motion on
April 29, 2005, for an evidentiary hearing or ruling on his original motion. It
appears from the record that McKeller’s counsel was not aware of the May 5,
2004, order when he filed the April 29, 2005, motion. The Commonwealth
responded on May 5, 2005, noting that the original motion had been ruled upon
one year earlier.
On January 25, 2006, McKeller, through counsel, filed a CR 60.02
motion to relieve him of the May 5, 2004, order. As a basis for the request,
McKeller’s counsel filed an affidavit stating that neither McKeller nor counsel
received a copy of the May 5, 2004, order and were unaware of it. Counsel stated
that but for this lack of notice, he would have filed an appeal from the May 5,
2004, order. Counsel did not request that the court amend the May 5, 2004 Order;
rather, he sought the entry of a new Order so that McKeller could prosecute an
appeal in conformity with the civil rules.
On May 3, 2006, the Jefferson Circuit Court rendered an Order
denying McKeller’s motion for CR 60.02 relief. Unlike the May 5, 2004, Order
which McKeller did not receive, the April 12, 2006 Order did not address
McKeller’s April 8, 2004, request to convert the CR 60.02 motion to an RCr 11.42
motion.
Finally, on June 2, 2006, McKeller filed a Motion for Belated Appeal
of the Jefferson Circuit Court’s Order denying his motion for RCr 11.42 relief. As
a basis for the motion, McKeller claimed that he did not receive an Order denying
his motion for relief. The Commonwealth did not object to the motion, and on July
18, 2006, a panel of this Court held the matter in abeyance pending finality of
Douglas Hawkins v. Commonwealth, 2004-SC-000552 and Steven Moore v.
Commonwealth, 2004-SC-000550. When those cases became final, this appeal
followed.
When this appeal was first before us, we rendered an Opinion
affirming the circuit court’s denial of McKeller’s CR 60.02 motion. We addressed
the CR 60.02 issue because 1) the sole issue raised in McKeller’s Notice of Appeal
was the denial of his CR 60.02 motion; 2) the circuit court never sustained
McKeller’s motion to convert the CR 60.02 motion to an RCr 11.42 motion; and 3)
McKeller stated in his appellate brief that, “It is from the denial of the CR 60.02
that Calvin now appeals.”
McKeller then appealed to the Kentucky Supreme Court, where he
apparently argued that this Court improperly failed to address the RCr 11.42 issue.
That Court found his argument persuasive, and remanded the matter to this Court
for consideration.
McKeller now argues that he received ineffective assistance of
counsel when his trial counsel failed to interview, investigate and call an
exculpatory witness, Antron Journey, to testify on McKeller’s behalf. He
maintains that Journey could have testified that he witnessed a third party threaten
McKeller with a gun about a week prior to the January 12, 2000 incident, thus
presenting McKeller with the choice of evils of either 1) possessing a gun for selfdefense (thus making him a felon in possession of a firearm) or 2) being unable to
protect himself against the threats of the armed third party. McKeller contends that
his counsel improperly failed to call and elicit Journey’s testimony on this issue,
thus rendering counsel’s assistance ineffective, and that resolution of the issue
required a hearing because it was not justiciable by reference to the record.
We have closely studied the written argument, the record and the law
on this issue, and find no error. We must first note that neither of the two cases
cited in the July 18, 2006 Order granting a belated appeal are dispositive of
McKeller’s claim of error. Discretionary review was denied by the Kentucky
Supreme Court in Douglas Hawkins v. Commonwealth, 2004-SC-000552, and in
Steven Moore v. Commonwealth, 2004-SC-000550, the Court held that a pro se
defendant whose post-conviction claim of error could be resolved without an
evidentiary hearing was not entitled to belated appeal from the denial of the
motion.
More to the point, and as the parties are well aware, the standard for
addressing a claim of ineffective assistance of counsel is set out in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed. 2d 674 (1984). In order to be
found ineffective, counsel’s performance must be below the objective standard of
reasonableness and must be so prejudicial as to deprive the defendant of a fair trial
and a reasonable result. Id. In considering ineffective assistance, the reviewing
court must focus on the totality of evidence before the lower court and assess the
overall performance of counsel throughout the case in order to determine whether
the identified acts or omissions overcome the presumption that counsel rendered
reasonable professional assistance. Kimmelman v. Morrison, 477 U.S. 365, 106
S.Ct. 2574, 91 L.Ed.2d 305 (1986).
In the matter at bar, when focusing on the totality of the evidence
before the circuit court and assessing the overall performance of counsel
throughout the case, we cannot conclude that McKeller has identified acts or
omissions sufficient to overcome the strong presumption that counsel rendered
reasonable professional assistance. McKeller’s argument on this issue centers on
his claim that his trial counsel was ineffective in failing to call Journey as a
witness. The calling of witnesses falls within the realm of trial strategy and
“[d]ecisions relating to witness selection are normally left to counsel’s judgment
and this judgment will not be second-guessed by hindsight.” Foley v.
Commonwealth, 17 S.W.3d 878, 885 (Ky. 2000), overruled on other grounds by
Stopher v. Conliffe, 170 S.W.3d 307 (Ky. 2005). Moreover, there is no basis for
concluding that the outcome would have been any different had Journey been
called as a rebuttal witness. The Commonwealth presented evidence that McKeller
was a felon and was in possession of a firearm on January 12, 2000, thus satisfying
the statutory elements of the offense upon which he was found guilty. Irrespective
of this, McKeller’s trial counsel benefits from the presumption of competence,
Kimmelman, supra, and McKeller has not overcome this presumption. Further,
since this matter was subject to resolution by reference to the record, no hearing
was required and the circuit court did not err in so ruling.
For the foregoing reasons, we affirm the Order of the Jefferson Circuit
Court denying McKeller’s motion for RCr 11.42 relief from judgment.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Amy Robinson Staples
Assistant Public Advocate
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
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