LETTERLOUGH (EVERETT) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: SEPTEMBER 26, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001370-MR
EVERETT LETTERLOUGH
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE A. C. MCKAY CHAUVIN, JUDGE
ACTION NO. 03-CR-000809
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: MOORE, NICKELL, AND STUMBO, JUDGES.
STUMBO, JUDGE: Everett Letterlough, hereinafter Appellant, is appealing the
Jefferson County Circuit Court’s denial of his RCr 11.42 motion to Vacate, Set
Aside, or Correct the Judgment of his conviction. Appellant entered into a
conditional guilty plea to one count of first-degree trafficking in a controlled
substance, one count of possession of a firearm by a convicted felon, one count of
possession of drug paraphernalia while in possession of a firearm, one count of
possession of marijuana while in possession of a firearm, and one count of being a
persistent felony offender (PFO) in the first-degree. He received an enhanced
sentence of seventeen years in the penitentiary. Appellant argues that his sentence
was unlawfully enhanced twice, that he had ineffective assistance of counsel, and
that his plea was involuntary. The Commonwealth argues that the double
enhancement issue was not preserved for review, that Appellant received effective
assistance from his trial counsel, and that his guilty plea was voluntary.
On January 7, 2003, Detective Mike Brackett of the Jefferson County
Sheriff’s Office was told by a confidential informant, who he deemed to be
reliable, that Appellant was selling drugs from room 129 at the InTown Suites in
Louisville, Kentucky. The informant described the car Appellant would be
driving, but did not know the make or model of the vehicle. Detective Brackett
was aware that this motel was a common location for drug transactions.
After receiving this information, Detective Brackett performed a
criminal background check on Appellant which revealed past drug arrests with
“gun involvement.” Also, the check revealed Appellant had recently been paroled
on July 24, 2002.
Detective Brackett and four other officers went to the motel to
investigate the tip. Upon arriving, Detective Brackett allegedly verified from the
front desk that room 129 was registered to Appellant. The police officers then set
up surveillance of the room.
Approximately 20 minutes into the surveillance, a car matching the
informant’s description entered the parking lot and parked across from room 129.
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Detective Brackett had obtained a physical description of Appellant from the
background check. The driver of the car matched that description.
When Appellant exited the vehicle, Detective Brackett and Detective
Troy Pitcock approached him. At this point, there is some dispute as to what
occurred. Regardless, the officers performed a Terry stop1 and patted down
Appellant to make sure he was not carrying a weapon. The officers found a loaded
pistol in a holster under Appellant’s jacket. He was then placed under arrest for
being a convicted felon in possession of a firearm. He was then searched further
incident to the arrest. The officers found 11 pieces of crack cocaine, digital scales,
six pieces of individually wrapped crack cocaine, a small amount of marijuana, and
$1,875.
After Appellant was searched, his hotel room and car were searched.
Appellant argues that he never consented to these searches, but the Commonwealth
contends that he did, pointing to a signed consent form. During the search of the
room and car, the officers further found two crack pipes, several plastic baggies
with their corners removed2, another loaded gun, ammunition, and $80.
On March 20, 2003, Appellant was indicted for trafficking in a
controlled substance in the first-degree (cocaine) while in possession of a firearm,
possession of a firearm by a convicted felon, illegal use or possession of drug
paraphernalia while in possession of a firearm, illegal possession of a controlled
1
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
2
Detective Brackett stated this is a common method used by drug dealers to package crack
cocaine intended for sale.
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substance (marijuana) while in possession of a firearm, and being a PFO in the
first-degree.
Prior to trial, Appellant filed a motion to suppress all evidence
obtained from the search of his person, the motel room, and the car. The motion
was based on the warrantless and allegedly unconstitutional stop and seizure of
Appellant by detectives. This motion was denied.
Appellant then entered into a conditional guilty plea agreement with
the Commonwealth. Appellant was allowed to reserve his right to appeal the
denial of his motion to suppress. On March 16, 2004, a judgment was entered in
which the trial court convicted Appellant of trafficking in a controlled substance in
the first-degree (cocaine), possession of a firearm by a convicted felon, illegal
possession of a controlled substance (marijuana) while in possession of a firearm,
illegal possession of drug paraphernalia while in possession of a firearm, and PFO
in the first-degree. He was sentenced to serve seventeen years in prison.
On October 20, 2005, a previous panel of this Court affirmed the
denial of the motion to suppress holding that there was sufficient information to
support the reasonable suspicion of criminal activity to justify the Terry stop. In
April, 2006, Appellant filed the current RCr 11.42 motion, which was denied
without a hearing.
On appeal, Appellant only argues three of the issues presented in the
RCr 11.42 motion. We find that the double enhancement issue was not preserved
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for review and that the ineffective assistance of counsel and involuntary guilty plea
issues are without merit.
First, Appellant argues that his charges were enhanced twice, first by
the Controlled Substance Act (KRS 218A et seq.) and then again by his PFO
status. This issue was not raised in the trial court as part of his motion and is
therefore not preserved for our review. See Kennedy v. Commonwealth, 544
S.W.2d 219 (Ky. 1976).
Second, Appellant argues that his trial counsel was ineffective
because she failed to investigate or call as witnesses the manager of the motel and
the motel security staff. Appellant contends that these witnesses would have
testified that there was no unusual activity coming from Appellant’s room, that
Appellant argued with the officers that they did not have a warrant or consent for
their search, and that Appellant’s girlfriend, who was in the room when it was
searched, was only a guest and could not consent to the search of the room or car.
To prevail on a claim of ineffective assistance of counsel, Appellant
must show two things:
First, the defendant must show that counsel’s
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense.
This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.
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Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). “[T]he proper standard for attorney performance is that of reasonably
effective assistance.” Id.
An error by counsel, even if professionally unreasonable,
does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment.
The purpose of the Sixth Amendment guarantee of
counsel is to ensure that a defendant has the assistance
necessary to justify reliance on the outcome of the
proceeding. Accordingly, any deficiencies in counsel’s
performance must be prejudicial to the defense in order
to constitute ineffective assistance under the Constitution.
(Internal citation omitted).
Id. at 691-692. “It is not enough for the defendant to show that the errors had some
conceivable effect on the outcome of the proceeding.” Id. at 693. “The defendant
must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694. “In reviewing an ineffectiveness claim, the court must
consider the totality of the evidence before the judge or jury at trial 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
reasonably professional assistance.” Sanborn v. Commonwealth, 975 S.W.2d 905,
911 (Ky. 1998).
We affirm the trial court’s finding that Appellant’s trial counsel was
effective. As stated above, Appellant was indicted for trafficking in a controlled
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substance in the first-degree (cocaine) while in possession of a firearm, possession
of a firearm by a convicted felon, illegal use or possession of drug paraphernalia
while in possession of a firearm, illegal possession of a controlled substance
(marijuana) while in possession of a firearm, and being a PFO in the first-degree.
All of these offenses stem from the Terry stop, pat down, and subsequent search
incident to arrest. A previous panel of this Court found the Terry stop and pat
down legal. The Terry stop and pat down led to the discovery of the gun. This
then led to Appellant’s arrest for possession of a firearm by a convicted felon.
Finally, there was a search incident to an arrest, which is a search that does not
require consent or a warrant. Rainey v. Commonwealth, 197 S.W.3d 89, 92 (Ky.
2006).
Since all of the offenses Appellant was charged with came from the
initial search of his person, which was previously deemed legal by this Court, any
evidence that could have been obtained by these witnesses would have been
irrelevant. These witnesses could only have provided evidence regarding the
search of the room and car. Therefore, the performance of Appellant’s trial
counsel in regard to this matter was not deficient.
Finally, Appellant argues that his guilty plea was involuntary because
his counsel was not prepared or willing to go to trial. This allegation is directly
refuted by Appellant’s own statements during the guilty plea colloquy. When the
trial judge asked Appellant if he had any complaints about his counsel’s
representation of him he stated that he did not. He went on to further comment on
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how he wished his appointed counsel could have been his attorney from the
beginning3.
Also, during the plea colloquy, Appellant confirmed that he had read
and signed all the plea forms and that he had discussed them with his attorney; that
he understood he was giving up his right to a jury trial; and that he had no
reservations about pleading guilty. Appellant had multiple opportunities to inform
the trial court that he was unhappy about either his plea agreement or trial
counsel’s representation. If he did not wish to plead guilty he should have
informed the court. He did not. Accordingly, we find that his guilty plea was
voluntary.
For the foregoing reasons we affirm the circuit court’s denial of
Appellant’s RCr 11.42 motion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Everett Letterlough, pro se
Sandy Hook, Kentucky
Jack Conway
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
3
Appellant was briefly represented by privately retained counsel during the preliminary stages of
this case.
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