SCOTT (RALPH) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: DECEMBER 31, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 02-CR-00070
COMMONWEALTH OF KENTUCKY
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BEFORE: CAPERTON AND VANMETER, JUDGES; GUIDUGLI,1 SENIOR
CAPERTON, JUDGE: Ralph Scott (Scott) brings this appeal from a May 4, 2007,
order of the McCracken Circuit Court denying his Kentucky Rules of Criminal
Procedure (RCr) 11.42 motion without an evidentiary hearing. For the reasons
below, we affirm.
Senior Judge Daniel T. Guidugli sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
The underlying facts of this case were summarized by the Supreme
Court in its opinion affirming Scott’s conviction as follows:
On December 25, 2001, the Paducah Police
Department issued a dispatch describing a van that was
suspected of being used in a criminal incident in
McCracken County. Officer James Davis who was on
patrol located a van matching the description parked in
the lot of a Shell Mart. He observed a woman in the
driver’s seat and Appellant, Ralph Scott, in the passenger
seat. As Officer Davis approached the van, Scott put his
right hand in his pocket. Scott failed to comply when
Davis requested that he remove his hand from his pocket.
Davis drew his weapon and walked toward the passenger
side of the van. As he did so, he observed Scott
withdraw his hand and pitch something over his left
shoulder into the back seat. Davis directed Scott to exit
the van, handcuffed him and conducted a pat-down
search. He then flashed a light in the vehicle and saw
what was ultimately determined to be about twenty
grams of crack cocaine in the floorboard behind the
driver’s seat. Scott was arrested and during a search
incident to arrest, Officer Davis discovered $1,352.00 in
small bills in Scott’s pants pockets.
Scott was charged and convicted, upon a jury
verdict, of first-degree trafficking in a controlled
substance, second offense and of being a persistent
felony offender (PFO) in the second degree. He was
sentenced to twenty years imprisonment on the
trafficking conviction which was enhanced to thirty years
by the PFO conviction.2
After his conviction and sentencing, Scott appealed to the Supreme
Court of Kentucky arguing that his right to a speedy trial was violated and that he
was deprived a fair trial due to prosecutorial misconduct. The Kentucky Supreme
Court rendered a unanimous opinion affirming the Scott’s conviction and sentence.
Scott then filed a pro se RCr 11.42 motion seeking to have his sentence set aside,
Appeal number 2005-SC-00100-MR
vacated, or corrected. The McCracken Circuit Court denied Scott’s RCr 11.42
post-conviction challenge without first conducting an evidentiary hearing. Scott
now appeals this decision by the circuit court.
Scott next argues that he, in fact, received ineffective assistance of
counsel. Scott must satisfy a two prong test to establish an ineffective assistance of
counsel claim under RCr 11.42. He must show both that his defense counsel’s
performance was deficient and that the deficiency caused actual prejudice resulting
in a proceeding that was fundamentally unfair and a result that was unreliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d
In order to satisfy the first prong of the Strickland test, appellant must
prove that counsel’s performance was deficient by showing that it, “fell below an
objective standard of reasonableness.” Strickland, 466 U.S. at 688. Second, in
showing that counsel’s deficiency resulted in actual prejudice, the appellant must
demonstrate with reasonable probability that the deficiency of counsel likely
affected the outcome of his case. Strickland, 466 U.S. at 684.
To support his ineffective counsel claim, Scott alleges that deficient
performance in the failure to perform appropriate investigation; to properly consult
with Scott prior to trial, and to call the driver of the van to testify at trial, but offers
speculation regarding the potential testimony of the female who was driving the
van. This witness was not called to testify by either the prosecution or defense in
Scott’s criminal trial. Scott does not specify the content of this proposed witness’s
testimony and fails to persuade us that the outcome would have been different had
the witness testified at trial. In his appellate brief, Scott argues that had the driver
been called to testify, he could have fully asserted the defense that the drugs did
not belong to him and that a time period occurred during which the van, where the
drugs were discovered, was not in his control.
Scott’s argument assumes that the driver would testify to these facts,
that the jury would have believed her testimony, and that this new information
would have changed the outcome of the case. Scott’s argument is purely
speculative and fails to account for the possibility that the witness’s testimony
could have been harmful to his case, by eliminating the potential theory that the
drugs belonged to her instead of Scott.
Counsel’s decision not to subpoena the driver must be viewed under
the highly deferential standard of Strickland, 466 U.S. at 689. The court should
look at the reasonableness of the counsel’s decision not to call this particular
witness to testify, while applying heavy deference to counsel’s judgment
Strickland, 466 U.S. at 691. Given all the circumstances of this case, the defense
attorney was the best position to make the final determination of whether to
subpoena the driver.
Scott also argues that he received ineffective assistance because
counsel failed to thoroughly investigate the laboratory analysis of the drug
evidence in his case. Scott suggests that defense counsel did not adequately attack
the drug evidence in court. Specifically, he argues that counsel should have
challenged the chain of custody for the drug evidence, and that had the drug
evidence been properly challenged, the jury would have had “reasonable doubt”
about his guilt. However, even if defense counsel actually erred in failing to
investigate and question the drug evidence presented in this case, Scott has not
convinced the court that the outcome of his criminal trial would have been
We thus conclude that Scott has failed to overcome the strong
presumption that his counsel was effective. Strickland, 466 U.S. at 690. Scott
failed to demonstrate that counsel’s representation fell below an objective standard
of reasonableness and that actual prejudice resulted from the alleged deficiency.
Strickland, 466 U.S. at 688. Even if all of the Scott’s allegations of counsel’s
deficiencies were true, he has failed to persuade us, either alone or cumulatively,
that the errors resulted in actual prejudice to his case.
Finally, Scott argues that the trial court erred in denying his 11.42
motion without first conducting an evidentiary hearing. An evidentiary hearing is
only required if “a material issue of fact ... cannot be conclusively resolved, i.e.,
conclusively proved or disproved, by an examination of the record.” Fraser v.
Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001); see also Newsome v.
Commonwealth, 456 S.W.2d 686, 687 (Ky. 1970) (evidentiary hearing unnecessary
if allegations can be resolved by the record or are insufficient to invalidate
conviction). Thus, hearings are unnecessary when the issues raised can be
determined entirely by an examination of the record. As noted, because all of
Scott’s contentions are resolved on the basis of the record alone, the trial court did
not err in denying his motion without a hearing.
The McCracken Circuit Court’s order is affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ralph Scott, Pro Se
Attorney General of Kentucky
Wm. Robert Long, Jr.
Assistant Attorney General