CAUDILL (BILLY R.) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: OCTOBER 24, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
BILLY R. CAUDILL
APPEAL FROM BREATHITT CIRCUIT COURT
HONORABLE FRANK ALLEN FLETCHER, JUDGE
ACTION NO. 05-CR-00122
COMMONWEALTH OF KENTUCKY
** ** ** ** **
BEFORE: CAPERTON, KELLER, AND NICKELL, JUDGES.
KELLER, JUDGE: Billy R. Caudill has appealed from the Breathitt Circuit
Court’s August 13, 2007, order denying his Kentucky Rules of Criminal Procedure
(RCr) 11.42 motion to vacate a judgment of conviction entered pursuant to a guilty
plea. We affirm.
This criminal action is one in a line of many civil actions and criminal
complaints filed by neighboring residents of Jackson, Breathitt County, Kentucky,
arising from a property dispute dating back to the 1980s. See Caudill v. Crabtree,
appeal No. 1999-CA-002429-MR (rendered March 2, 2001); Caudill v. Crabtree,
appeal No. 1993-CA-001961-MR (rendered August 25, 1995). The present action
concerns an incident on May 22, 2005, when Caudill got into a dispute with
Randall Carpenter and Wayne Harvey over the driveway that has been the subject
of the long-standing property dispute.1 As a result of the incident, several criminal
complaints were filed by Caudill, Carpenter, and Harvey. Caudill filed criminal
complaints against Carpenter and Harvey for fourth-degree assault. (See Breathitt
District Court Action Nos. 05-M-00193 and 05-M-00194.) However, the grand
jury did not issue any indictments as a result of Caudill’s complaints. On the other
hand, the grand jury did return a two-count indictment against Caudill for FirstDegree Wanton Endangerment, a class D felony, based upon complaints filed by
Carpenter and Harvey. The indictment charged that Caudill pointed a gun at both
Carpenter and Harvey on May 22, 2005.
On August 11, 2006, Caudill moved to enter a guilty plea to amended
charges of Second-Degree Wanton Endangerment, and his plea was accepted by
Judge Larry Miller following a lengthy colloquy. The trial court then sentenced
Caudill to concurrent twelve-month sentences, suspended the sentences, and placed
him on supervised probation for two years with several conditions. The judgment
formally convicting and sentencing Caudill was entered the following day.
This same panel has also been assigned the companion civil case related to this incident, for
which Caudill is seeking a reversal of the Breathitt Circuit Court’s summary judgment
dismissing his suit against Carpenter and Harvey for the tort of assault and battery. Caudill v.
Carpenter, appeal No. 2007-CA-002500-MR.
On October 28, 2006, less than three months later, Caudill,
represented by a new attorney, filed an RCr 11.42 motion to vacate and set aside
the judgment, and to allow him to withdraw his guilty plea. In his motion, he
claimed that his trial counsel was ineffective as she coerced him into accepting the
guilty plea and gave him incorrect advice as to the effect his guilty plea would
have on his pending civil suit. Caudill also argued that the trial court failed to
ensure that he understood the ramifications of his decision to plead guilty. In its
response, the Commonwealth pointed out that the videotape of the guilty plea
hearing reveals that the trial court made the proper inquiries of Caudill while he
was under oath. The Commonwealth also asserted that the “statements” quoted at
length in Caudill’s motion were unsworn and self-serving.
The motion was heard by the newly seated Judge Frank A. Fletcher on
July 20, 2007. At that time, the attorneys informed the trial court of the history of
the action, and the trial court requested memoranda from both sides within ten
days. However, the trial court apparently denied the motion with a handwritten
docket order entered the following day. Caudill moved the trial court to set aside
that order, due to its instruction that the parties file additional briefs. Caudill also
indicated that the only issue was whether the trial attorney properly advised him
that his guilty plea would have no effect on his civil case. In support of this
argument, Caudill stated that his guilty plea collaterally estopped him from
pursuing his civil action. Caudill also attached an affidavit in which he stated that
his trial attorney told him he would go to jail unless he entered a guilty plea and
that his guilty plea would have no effect on his civil suit. On August 13, 2007, the
trial court entered an order again denying Caudill’s RCr 11.42 motion. The trial
court found that his guilty plea was knowingly, voluntarily, and intelligently
entered and cited case law holding that a defendant’s lack of knowledge of the
range of sentences that could be imposed would not constitute grounds for the
withdrawal of a plea. This appeal followed.
In his brief, Caudill argues that his trial attorney rendered ineffective
assistance in that she coerced him into accepting the plea agreement and provided
him with incorrect advice. He also argues that the entry of the guilty plea
precluded him from maintaining his civil action by operation of the doctrine of
collateral estoppel. The Commonwealth maintains the trial court properly denied
Caudill’s motion for relief as the record does not support his allegations and his
trial attorney’s alleged failure to accurately advise him as to the impact of his
guilty plea on his civil action would not render his plea involuntary.2
The standard of review in RCr 11.42 post-conviction actions is well
settled in the Commonwealth. Generally, a movant must meet the requirements of
a two-prong test to establish a claim for ineffective assistance of counsel by
proving that: 1) counsel’s performance was deficient and 2) the deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984); accord Gall v. Commonwealth, 702 S.W.2d
In a prefatory note, the Commonwealth asks this Court to disregard Caudill’s factual recitation,
as it is based upon unsupported, unsworn statements by Caudill. We decline to reconsider the
Commonwealth’s previously denied motion to strike, but note that Caudill’s references to his
unsworn statements and to facts outside of the record will not affect our ultimate holding.
37 (Ky. 1985), cert. denied, 478 U.S. 1010, 106 S. Ct. 3311, 92 L. Ed. 2d 724
(1986). Pursuant to Strickland, the standard for attorney performance is
reasonable, effective assistance. A movant must show that his counsel’s
representation fell below an objective standard of reasonableness and the movant
bears the burden of proof. In doing so, a movant must overcome a strong
presumption that his counsel’s performance was adequate. Jordan v.
Commonwealth, 445 S.W.2d 878 (Ky. 1969); McKinney v. Commonwealth, 445
S.W.2d 874 (Ky. 1969).
If an evidentiary hearing is not held, as in this case, our review is
limited to “whether the motion on its face states grounds that are not conclusively
refuted by the record and which, if true, would invalidate the conviction.” Lewis v.
Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967). See also Sparks v.
Commonwealth, 721 S.W.2d 726, 727 (Ky. App. 1986).
In Sparks, this Court addressed the validity of guilty pleas:
The test for determining the validity of a guilty plea is
whether the plea represents a voluntary and intelligent
choice among the alternative courses of action open to
the defendant. North Carolina v. Alford, 400 U.S. 25, 91
S.Ct. 160, 164, 27 L.Ed.2d 162 (1970). There must be an
affirmative showing in the record that the plea was
intelligently and voluntarily made. Boykin v. Alabama,
395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274
(1969). However, “the validity of a guilty plea is
determined not by reference to some magic incantation
recited at the time it is taken but from the totality of the
circumstances surrounding it.” Kotas v. Commonwealth,
Ky., 565 S.W.2d 445, 447 (1978), (citing Brady v.
United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 1469, 25
L.Ed.2d 747 (1970)).
721 S.W.2d at 727. The Sparks Court went on to address the two-part test used to
challenge a guilty plea based upon ineffective assistance of counsel:
A showing that counsel’s assistance was ineffective in
enabling a defendant to intelligently weigh his legal
alternatives in deciding to plead guilty has two
components: (1) that counsel made errors so serious that
counsel’s performance fell outside the wide range of
professionally competent assistance; and (2) that the
deficient performance so seriously affected the outcome
of the plea process that, but for the errors of counsel,
there is a reasonable probability that the defendant would
not have pleaded guilty, but would have insisted on going
to trial. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366,
370, 80 L.Ed.2d 203 (1985). Cf., Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984); McMann v. Richardson, 397 U.S. 759, 90
S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970).
Sparks, 721 S.W.2d at 727-28. See also Bronk v. Commonwealth, 58 S.W.3d 482
(Ky. 2001). With this standard in mind, we shall review Caudill’s appeal.
First, Caudill argues that his trial attorney was ineffective in allegedly
misinforming him that his guilty plea would have no effect on his civil suit, which
misled him into accepting the Commonwealth’s offer. The crux of Caudill’s
argument is that the doctrine of collateral estoppel prevented him from bringing a
civil suit based upon the same set of circumstances.3 We disagree that this alleged
misadvice constituted ineffective assistance of counsel.
In Commonwealth v. Fuartado, 170 S.W.3d 384, 385 (Ky. 2005), the
Supreme Court of Kentucky recognized that “it is undisputed that there is no
constitutional requirement for trial courts to advise criminal defendants regarding
collateral consequences that may result from a conviction before accepting a guilty
plea. . . .” It further held that “the Sixth Amendment requires representation
encompassing only the criminal prosecution itself and the direct consequences
thereof.” Id. at 386. In so holding, the Court stated,
[t]he constitutional requirement of effective assistance of
counsel, therefore, extends to and encompasses only
those activities which tend to protect a criminal
defendant’s right to a fair and intelligent determination of
guilt or innocence[,]
and that “[t]he existence of collateral consequences is irrelevant to the
determination of a defendant’s guilt or innocence and completely outside the
authority or control of the trial court.” Id. The Fuartado case dealt with the
collateral consequence of deportation after the entry of a guilty plea, when the
defendant’s trial attorney did not inform him of potential immigration
In support of this argument, Caudill includes a lengthy quotation from Koenigstein v. McKee,
appeal No. 2004-CA-002212-MR, a case that was depublished by operation of Kentucky Rules
of Civil Procedure (CR) 76.28(4)(a) when the Supreme Court granted discretionary review.
Therefore, that opinion is not available for citation to this Court. We note that CR 76.28(4)(c)
permits a party to cite for consideration Kentucky appellate decisions rendered after January 1,
2003, “if there is no published opinion that would adequately address the issue before the court.”
The Rule also requires a party citing such an opinion to tender the entire decision along with the
document in which it was cited, to both the court and the parties to the action. Caudill’s citation
to Koenigstein does not meet either requirement, as the doctrine of collateral estoppel has been
addressed in many published appellate decisions and a copy of the decision was not tendered
along with the brief.
consequences. The Supreme Court recently confirmed this “unequivocal holding”
in Commonwealth v. Padilla, 253 S.W.3d 482, 485 (Ky. 2008), holding that
“counsel’s failure to advise Appellee of such collateral issue or his act of advising
Appellee incorrectly provides no basis for relief.” Id.
For the reasons set forth in the companion case of Caudill v.
Carpenter, appeal No. 2007-CA-002500-MR, rendered today, the doctrine of
collateral estoppel does not apply to preclude Caudill from bringing a civil suit,
meaning that his trial counsel’s advice was correct. However, even if his counsel
had been incorrect and the doctrine did apply, we hold that such misadvice does
not constitute ineffective assistance under Fuartado or Padilla, as such advice
applied to a purely collateral consequence of the guilty plea.
Second, and finally, Caudill argues generally that his trial counsel’s
assistance was ineffective based upon the coercive scare tactics she used to
convince him to plead guilty.4 We agree with the Commonwealth that the record
of the guilty plea hearing conclusively establishes that Caudill entered his plea
knowingly, intelligently, and voluntarily; that he had been fully informed of his
constitutional rights; and that he understood the plea agreement. Caudill stated
under oath he had all the time he needed to consult with his attorney, he had no
complaints, and he was satisfied with her services. Therefore, we hold that Caudill
has failed to establish his trial attorney’s performance was deficient, and he is not
entitled to RCr 11.42 relief.
In his affidavit, Caudill stated that his trial attorney told him that he would go to jail if he did
not plead guilty.
For the foregoing reasons, the order of the Breathitt Circuit Court
denying the motion for RCr 11.42 relief is affirmed.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Daniel F. Dotson
Attorney General of Kentucky
James C. Maxson
Assistant Attorney General