SMITH (CHARLES DARWIN) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: OCTOBER 24, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
CHARLES DARWIN SMITH
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE C. DAVID HAGERMAN, JUDGE
ACTION NO. 02-CR-00061
COMMONWEALTH OF KENTUCKY
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BEFORE: NICKELL AND THOMPSON, JUDGES; ROSENBLUM, SPECIAL
THOMPSON, JUDGE: Charles Darwin Smith appeals from an order of the Boyd
Circuit Court denying his motion for post-conviction relief pursuant to Kentucky
Rules of Criminal Procedure (RCr) 11.42. For the reasons stated herein, we affirm.
On January 25, 2002, Smith and Steven Young entered a convenience
store and attempted to cash a forged check belonging to Erica Davis. The store
clerk testified that Smith and Young used Davis’ driver’s license as identification.
Knowing Davis since high school, the clerk informed her manager of the situation
and police were notified. After police arrived, the two men were arrested.
On March 28, 2002, Smith was indicted by a Boyd County grand jury
for criminal possession of a forged instrument in the second-degree and for being a
persistent felony offender in the first degree (PFO I). Following his jury trial, he
was found guilty of the criminal possession charge. During his PFO hearing, the
Commonwealth introduced Smith’s three prior convictions to prove the PFO I
His first conviction was in a federal case wherein Smith was
sentenced to eight-months’ imprisonment. His second conviction was a Fayette
Circuit Court case wherein he pled guilty to second-degree escape. The
certification page for this judgment was attached to the judgment in the federal
case. His third conviction was a Boyd Circuit Court case which the trial court
admitted without certification. Based on these “prior convictions,” the
Commonwealth asked the jury to find Smith guilty of being a PFO I. After the
jury agreed with the Commonwealth, the trial court sentenced Smith to eighteenyears’ imprisonment in accordance with the jury’s recommendation.
This Court affirmed Smith’s conviction on direct appeal in Case No.
2002-CA-002460-MR. On October 17, 2006, Smith filed a motion pursuant to
RCr 11.42 alleging ineffective assistance of counsel. After an evidentiary hearing,
the trial court denied Smith’s motion for post-conviction relief. This appeal
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,
687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under this standard, the movant must
demonstrate the following: (1) that counsel made serious errors resulting in a
performance outside the range of professionally competent assistance guaranteed
by the Sixth Amendment; and (2) that the deficient performance prejudiced the
defense so seriously that there is a reasonable likelihood that the outcome of the
trial would have been different absent the errors. MacLaughlin v. Commonwealth,
717 S.W.2d 506, 507 (Ky.App. 1986).
On review of a denied motion for post-conviction relief, we are
required to defer to the trial court’s findings of fact and determinations regarding
the credibility of witnesses. Commonwealth v. Bussell, 226 S.W.3d 96, 99 (Ky.
2007). These findings and determinations will be conclusive if they are supported
by substantial evidence. Rigdon v. Commonwealth, 144 S.W.3d 283, 288
(Ky.App. 2004). Findings of fact are supported by substantial evidence when the
evidence is sufficient to affirm the findings in the minds of reasonable people.
Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003).
Smith contends that he received ineffective assistance of counsel
when his counsel failed to propose instructions on the lesser included offenses of
facilitation, conspiracy, and attempted forgery. Contending that the evidence at
trial supported these instructions, Smith argues that he suffered a constitutional
deprivation when his counsel failed to ensure their submission to the jury. We
During the evidentiary hearing, Smith’s counsel testified that he
discussed the possibility of proposing instructions for lesser included offenses to
forgery. Counsel testified that Smith informed him that he did not want other
instructions submitted to the jury but desired an “all or nothing” strategy. Counsel
accepted Smith’s wishes and did not offer instructions on the lesser included
offenses. During his testimony, Smith stated that he did not recall discussing the
matter with his counsel.
At the conclusion of a criminal trial, the trial court is required to give
every instruction supported to any extent by the testimony, including giving
instructions for lesser included offenses. Taylor v. Commonwealth, 995 S.W.2d
355, 360-62 (Ky. 1999). Despite this duty, trial courts are not required to provide
instructions on lesser included offenses if the defense declines this option due to its
trial strategy. McKinney v. Commonwealth, 60 S.W.3d 499, 507 (Ky. 2001). An
“all or nothing” strategy precludes the jury from reaching a compromise verdict on
a lesser included offense when the defendant believes he has established
reasonable doubt regarding the charged offense and will be acquitted.
The trial court’s finding that Smith made a conscious decision not to
submit lesser included instructions is supported by substantial evidence. Smith’s
counsel testified that the decision to forego instructions on the lesser included
offenses was trial strategy. Smith did not deny his counsel’s testimony but merely
stated that he did not recall their conversation. Therefore, although the decision to
pursue this strategy was unsuccessful, Smith’s counsel did not render ineffective
assistance when he made this strategic decision.
Smith next contends that he received ineffective assistance of counsel
when his counsel failed to challenge the convictions introduced to support his PFO
First, he contends that the use of his federal conviction was improper
because his sentence in the case was not for the requisite one or more years as
required in Kentucky Revised Statutes (KRS) 532.080(3)(a). Second, he contends
that the jury was confused and his case was prejudiced when the certification page
for his Fayette Circuit Court conviction was attached to his federal judgment.
Third, Smith contends that his Boyd and Fayette Circuit judgments of conviction
were not properly certified and should have been excluded. Smith contends that
these errors warrant the reversal of his PFO I conviction. We disagree.
While Smith correctly contends that the federal conviction could not
be used to support his PFO conviction because he did not receive at least a oneyear sentence as required by KRS 532.080(3), his two Kentucky convictions were
sufficient to support his PFO I conviction. Id. Regarding his contentions of
confusion and certification defects, the record forecloses the possibility that
Smith’s judgment of conviction was so fundamentally unfair as to deny him due
process of law. The attachment of the certification page of the Fayette Circuit
Court conviction to his federal case was not a constitutional error. Had his counsel
objected, the trial court could have permitted the attachment of the Fayette Circuit
certification page to the Fayette Circuit Court judgment of conviction.
Furthermore, the trial court could have granted a recess to
permit the circuit clerk to prepare a certification page for its judgment or to
personally testify to prove the Boyd Circuit Court conviction. Essentially, the
Commonwealth introduced two valid Kentucky felony convictions against Smith
during the PFO hearing. Consequently, Smith has failed to establish that his PFO I
conviction amounts to a denial of due process of law. Schooley v. Commonwealth,
556 S.W.2d 912, 917 (Ky.App. 1977).
Smith next contends that he received ineffective assistance of counsel
when his counsel failed to object to the Commonwealth’s erroneous assertion that
he had been previously convicted of being a PFO. During its closing, the
Commonwealth stated that Fayette County had already punished him as a
persistent felony offender. However, under the terms of the plea agreement in the
Fayette Circuit Court case, Smith pled guilty to escape and the PFO charge was
dismissed. Smith contends that this factual misstatement requires a reversal in this
case. We disagree.
It is well established that errors which would require reversal on direct
appeal do not necessarily justify reversal pursuant to post-conviction relief. Id. It
was error for the Commonwealth to make this assertion because Smith had not
been previously convicted of being a PFO in Fayette Circuit Court. However,
despite this error, the evidence of his guilt on the PFO I charge was sufficient, and
there can be no doubt that Smith received a fair trial and effective representation in
light of the entire record. Gall v. Commonwealth, 702 S.W.2d 37, 39-40 (Ky.
For the foregoing reasons, the order of the Boyd Circuit Court is
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Melanie L. Lowe
Assistant Public Advocate
Department of Public Advocacy
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General