WILDER (GARY WAYNE) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: AUGUST 8, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
GARY WAYNE WILDER
APPEAL FROM BELL CIRCUIT COURT
HONORABLE JAMES L. BOWLING, JR., JUDGE
ACTION NO. 02-CR-00164
COMMONWEALTH OF KENTUCKY
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BEFORE: COMBS, CHIEF JUDGE; ACREE AND THOMPSON, JUDGES.
THOMPSON, JUDGE: Gary Wayne Wilder appeals from the Bell Circuit
Court's denial of his motion for post-conviction relief pursuant to Kentucky Rules
of Criminal Procedure (RCr) 11.42. For the reasons stated herein, we affirm.
On November 27, 2002, Wilder was indicted for cultivating five or
more marijuana plants, first offense; and for being a second-degree persistent
felony offender (PFO II). Following a jury trial in which he was found guilty,
Wilder and the Commonwealth reached a plea agreement whereby Wilder pled
guilty and received a five-year sentence, enhanced to seven years by the PFO II,
for marijuana cultivation. He further agreed to plead guilty in another Bell County
case, No. 02-CR-00117, and to stipulate to a probation violation in a third Bell
County case, No. 97-CR-00020-3.
The agreement provided that he would accept a three-year sentence in
Bell County case 02-CR-00117 and would serve the five-year suspended sentence
for the Bell County probation revocation. These sentences would be served
consecutively with each other and consecutively with his marijuana cultivation
conviction for a total fifteen-year sentence. Under the agreement, these sentences
would be served consecutively with Wilder’s three-year sentence from Boone
County. Thus, Wilder agreed to an eighteen-year sentence in exchange for the
resolution of several criminal cases.
On September 19, 2003, the day after the trial, Wilder appeared before
the trial court to enter his guilty plea. After informing Wilder that it was setting
aside the jury’s guilty verdict based on the plea agreement, the trial court engaged
in a plea colloquy with Wilder in which he was informed of his constitutional
rights. The Commonwealth then recited the terms of the plea agreement in which
the three Bell County sentences would run consecutively with each other and
consecutively to the Boone County sentence.
Wilder then admitted guilt to his criminal charges and acknowledged
that his plea was made knowingly, voluntarily, and intelligently with the assistance
of competent counsel. At the conclusion of the hearing, the trial court accepted
Wilder’s plea. On September 29, 2003, Wilder was finally sentenced to fifteenyears’ imprisonment to be served consecutively to his Boone County sentence.
Subsequently, in the first half of 2004, Wilder filed two motions for
shock probation which were denied. On October 22, 2004, Wilder filed a pro se
motion with the trial court for the modification of his sentence to a five-year term.
This motion was denied. Thereafter, Wilder filed a motion for a belated appeal in
this Court in which he alleged that he had not waived his constitutional right of
direct appeal and that his trial counsel had failed to directly appeal his conviction
as counsel had promised.
On January 13, 2005, in Case No. 2004-CA-002212-MR, this Court
issued an order directing the trial court to conduct an evidentiary hearing as to
whether Wilder explicitly or implicitly waived his constitutional right of direct
appeal. At the evidentiary hearing, the video recording of Wilder’s plea colloquy
was played wherein Wilder specifically waived his right of direct appeal. Further,
his trial counsel testified that he informed Wilder that he was waiving his right of
direct appeal due to his plea. Wilder’s trial counsel further testified that he had
informed Wilder that he would not be preparing a direct appeal in his case.
After hearing this evidence, the trial court found that Wilder explicitly
waived his right of direct appeal, and this Court thereafter denied Wilder’s request
for a belated appeal. On March 15, 2007, Wilder filed a motion pursuant to RCr
11.42 to set aside his conviction on the basis that his trial counsel had rendered
ineffective assistance during his criminal proceedings. On May 14, 2007, the trial
court denied Wilder’s motion. This appeal follows.
On appellate review of a claim of ineffective assistance of counsel, we
are governed by the standard set out in Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, the two-prong test promulgated
in Strickland is modified when the ineffectiveness 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); See Shelton v. Commonwealth, 928 S.W.2d 817, 818 (Ky.App. 1996).
Pursuant to the modified test, as stated in Centers v. Commonwealth,
799 S.W.2d 51, 55 (Ky.App. 1990), the defendant must demonstrate the following:
(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 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.”
Wilder first contends that his trial counsel rendered ineffective
assistance when counsel misled him into believing that he was pleading to a shorter
sentence than the actual sentence imposed. Specifically, he contends that he was
led to believe that the sentence from his stipulated probation revocation would not
be applied to extend the sentence under his plea but rather would be set aside. We
Allegations contained in an RCr 11.42 motion that are refuted by the
record do not merit any post-conviction relief. Harper v. Commonwealth, 978
S.W.2d 311, 314 (Ky. 1998). The trial court and the prosecutor informed Wilder
in open court that the terms of his plea agreement required that he serve all of his
sentences consecutively. Further, during his plea colloquy, Wilder was specifically
informed that his reinstated sentence due to his probation revocation would be
served consecutively to his other sentences. Therefore, Wilder’s allegation was
refuted by the record.
Wilder next contends that his trial counsel rendered ineffective
assistance when counsel misled Wilder into believing that his guilty plea was not a
waiver of his constitutional right of direct appeal. Additionally, Wilder contends
that his trial counsel promised him that counsel would file a direct appeal of
Wilder’s conviction. Thus, he contends that he was entitled to post-conviction
relief. We disagree.
During an evidentiary hearing regarding the waiver of Wilder’s
constitutional rights, which was ordered by this Court in Case No. 2004-CA002212-MR, Wilder’s trial counsel testified that he specifically informed Wilder
that he was waiving his right of direct appeal as a result of his guilty plea. His trial
counsel further testified that he never informed Wilder that he would file a direct
appeal on Wilder’s behalf. Accordingly, Wilder’s allegation was refuted by the
Wilder next contends that his trial counsel rendered ineffective
assistance during his jury trial. Specifically, Wilder contends that his counsel
failed to call a necessary witness; failed to engage in meaningful cross-examination
of witnesses; failed to adequately investigate his case; improperly “opened the
door,” thereby permitting the admission of formerly suppressed evidence; and
impermissibly refused to permit him to testify in his own defense. We disagree.
Wilder contends that his counsel failed to interview and secure a
witness that would have testified that Wilder did not own the property on which
the marijuana was found. However, a defendant’s non-ownership of the property
where contraband is found does not preclude his conviction for his criminal
conduct associated with the contraband. Moreover, after his apprehension at the
conclusion of a foot pursuit, Wilder confessed his ownership of the marijuana
plants to the arresting officer. Accordingly, his trial counsel’s failure to interview
and secure a witness regarding the ownership of the situs of the crime did not
constitute ineffective assistance of counsel.
Wilder contends that his trial counsel failed to engage in meaningful
cross-examination of the Commonwealth’s witnesses and failed to investigate his
case. However, Wilder has not stated what beneficial evidence would have been
uncovered by a meaningful cross-examination or further investigation of his case.
Accordingly, Wilder’s general and vague allegations regarding counsel’s
ineffective performance without specific factual claims of error and prejudice did
not warrant post-conviction relief. Mills v. Commonwealth, 170 S.W.3d 310, 330
Wilder contends that his trial counsel’s actions “opened the door,”
thereby permitting the admission of his previously suppressed confession.
Specifically, he contends that the trial court ruled his unsigned written confession
inadmissible, but his counsel unwisely referred to the written confession several
times during his trial. Thus, he contends that this constituted ineffective assistance
However, while the record demonstrates that the written confession
was not admitted as a trial exhibit, the trial court did not preclude the officer from
testifying about his personal observations. The officer testified that he wrote
Wilder’s confession but Wilder refused to sign it. Therefore, we fail to see how
Wilder’s trial counsel could have opened a door that was never closed.
Wilder contends that his trial counsel impermissibly prevented him
from testifying in his own defense. While Wilder correctly states that a defendant
has a fundamental right to testify in his own defense as stated in Watkins v.
Commonwealth, 105 S.W.3d 449, 453 (Ky. 2003), he never expressed this desire
during his criminal proceedings and expressly waived the right to testify during his
plea colloquy. Therefore, Wilder’s allegation was refuted by the record.
Wilder next contends that his numerous ineffective assistance of
counsel contentions constitute cumulative error if not individual error. However,
these types of contentions have been consistently rejected. Epperson v.
Commonwealth, 197 S.W.3d 46, 65-66 (Ky. 2006). Moreover, after extensively
reviewing the record, we conclude that Wilder has simply not stated any claim that
would have legitimately caused him not to enter a guilty plea and that would have
beneficially changed the outcome of his case.
For the foregoing reasons, the Bell Circuit Court’s order denying
Wilder post-conviction relief is affirmed.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Gary Wayne Wilder, Pro Se
Sandy Hook, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
James C. Shackelford
Assistant Attorney General