GRAY (JOEY HOWARD) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: SEPTEMBER 26, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
JOEY HOWARD GRAY
APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE C. DAVID JERNIGAN, JUDGE
ACTION NO. 04-CR-00117
COMMONWEALTH OF KENTUCKY
** ** ** ** **
BEFORE: NICKELL, MOORE AND STUMBO, JUDGES.
NICKELL, JUDGE: Joey Howard Gray (“Gray”), pro se, has appealed from an
order entered by the Muhlenberg Circuit Court on November 14, 2007, which,
without holding an evidentiary hearing, denied his pro se motions for appointment
of counsel and to vacate, set aside, or correct the trial court’s final judgment and
sentence of imprisonment pursuant to RCr1 11.42. Having concluded the trial
Kentucky Rules of Criminal Procedure.
court did not err in denying Gray’s claims of ineffective assistance of counsel
without holding an evidentiary hearing, we affirm.
Gray directly appealed his twenty-year sentence for possession of
drug paraphernalia2 and first-degree possession of a controlled substance3
enhanced by his conviction of being a persistent felony offender4 to the Supreme
Court of Kentucky.5 We quote the pertinent facts of this case from that opinion as
Appellant was in his home on the morning of July 17,
2004, when Cameron Laycock, Appellant's parole
officer, accompanied by two police officers, arrived at
7:00 a.m. Also in Appellant's home were four other
people, a white man, two black men, and a white woman.
The white man was lying on the couch, one of the black
men was in the master bedroom, and the other black man
and the white woman were in the smaller bedroom. One
of the men was later identified as Dennis Barnes and one
of the black men as “Big Pond.”
Appellant gave the officers permission to search his
home. The search turned up multiple syringes, a crack
pipe with cocaine residue, an unlabeled prescription
bottle, and plastic bags with controlled substance
(cocaine) residue. Appellant appeared to Laycock, the
parole officer, to be under the influence of drugs or
intoxicants, and his arms showed signs of needle tracks.
Appellant was arrested, taken into custody, indicted and
Kentucky Revised Statutes (KRS) 218A.500, a Class A misdemeanor.
KRS 218A.1415, a Class D felony.
Gray v. Commonwealth, 2006-SC-000072-MR, (rendered April 20, 2006) (not-to-bepublished)
A judgment and final sentence was entered on December 29, 2004,
fixing Gray’s punishment at the sentences recommended by the jury. The Supreme
Court’s opinion affirming Gray’s conviction became final on May 11, 2007. On
November 2, 2007, Gray filed a pro se “motion to vacate judgment pursuant to
RCr 11.42” along with a memorandum in support thereof, “motion for a full blown
evidentiary hearing,” motion to proceed in forma pauperis, and motion for
appointment of counsel. Gray raised twelve separate allegations of prosecutorial
misconduct, ineffectiveness of his trial counsel, and other prejudicial errors in the
RCr 11.42 motion. On November 14, 2007, without holding a hearing, the circuit
court entered an order overruling all of Gray’s motions. This appeal followed.
On appeal, Gray contends the trial court erred in failing to set aside
his conviction “due to Ineffective Assistance of Counsel was more than flagrantly
established;” abused its discretion in failing to vacate the conviction based upon
his allegation of prosecutorial misconduct; and showed bias and abused its
discretion “since the record does not support the findings of fact and conclusion of
law adduced by the Circuit Court.”
In addition to challenging the trial court’s rejection of his various
claims, Gray contends that the trial court erred in failing to conduct an evidentiary
hearing on his RCr 11.42 motion. A movant is not automatically entitled to an
evidentiary hearing on an RCr 11.42 motion; there must be an issue of fact which
cannot be determined on the face of the record. Stanford v. Commonwealth, 854
S.W.2d 742 (Ky. 1993). “Where the movant’s allegations are refuted on the face
of the record as a whole, no evidentiary hearing is required.” Sparks v.
Commonwealth, 721 S.W.2d 726, 727 (Ky.App. 1986) (citing Hopewell v.
Commonwealth, 687 S.W.2d 153, 154 (Ky.App. 1985)). Our review indicates all
of Gray’s allegations are clearly refuted on the face of the record, and thus the trial
court did not err in refusing to hold an evidentiary hearing.
Gray additionally contends the trial court erred in failing to appoint
counsel to represent him on his RCr 11.42 motion. “There is no constitutional
right to a post-conviction collateral attack on a criminal conviction or to be
represented by counsel at such a proceeding where it exists.” Fraser v.
Commonwealth, 59 S.W.3d 448, 451 (Ky. 2001) (citing Murray v. Giarratano, 492
U.S. 1, 8, 109 S.Ct. 2765, 2769, 106 L.Ed.2d 1 (1989); Pennsylvania v. Finley, 481
U.S. 551, 557, 107 S.Ct. 1990, 1994, 95 L.Ed.2d 539 (1987)). If an evidentiary
hearing is required, counsel must be appointed for the indigent movant if so
requested, but if no hearing is necessitated, then counsel need not be appointed.
Id. at 453. As we have determined no hearing was required, Gray was not entitled
to the appointment of counsel as he contends.
It appears Gray has abandoned the remaining issues raised in his RCr
11.42 motion before the trial court as they are not included in his brief to this
Court. Therefore, we will not discuss these other allegations of error as they are
not properly before us for review.
The standard of review for denial of an RCr 11.42 motion for postjudgment relief is well-settled. To establish ineffective assistance of counsel, a
person must satisfy a two-part test showing both that counsel’s performance was
deficient and that the deficiency caused actual prejudice resulting in a proceeding
that was fundamentally unfair and unreliable. Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Commonwealth v. Tamme, 83 S.W.3d
465, 469 (Ky. 2002); Foley v. Commonwealth, 17 S.W.3d 878, 884 (Ky. 2000).
The burden is on the defendant to overcome a strong presumption that counsel’s
assistance was constitutionally sufficient or that under the circumstances counsel’s
action might be considered “trial strategy.” Strickland, supra, 466 U.S. at 689;
Moore v. Commonwealth, 983 S.W.2d 479, 482 (Ky. 1998); Sanborn v.
Commonwealth, 975 S.W.2d 905, 912 (Ky. 1998). A court must be highly
deferential in reviewing defense counsel’s performance and should avoid secondguessing counsel’s actions based on hindsight. Haight v. Commonwealth, 41
S.W.3d 436, 442 (Ky. 2001); Harper v. Commonwealth, 978 S.W.2d 311, 315 (Ky.
1998). In assessing counsel’s performance the standard is whether the alleged acts
or omissions were outside the wide range of prevailing professional norms based
on an objective standard of reasonableness. Strickland, 466 U.S. at 688-89;
Tamme, 83 S.W.3d at 470; Commonwealth v. Pelfrey, 998 S.W.2d 460, 463 (Ky.
1999). “‘A defendant is not guaranteed errorless counsel, or counsel adjudged
ineffective by hindsight, but counsel reasonably likely to render and rendering
reasonably effective assistance.’” Sanborn, 975 S.W.2d at 991 (quoting McQueen
v. Commonwealth, 949 S.W.2d 70 (Ky. 1997). To establish actual prejudice, a
movant must show reasonable probability the outcome of the proceeding would
have been different or was rendered fundamentally unfair and unreliable.
Strickland, supra, 466 U.S. at 694; Bowling v. Commonwealth, 80 S.W.3d 405,
411-12 (Ky. 2002). Where the movant is convicted at trial, a reasonable
probability is one that undermines confidence in the outcome of the proceeding
upon consideration of the totality of the evidence before the jury. Strickland,
supra, 466 U.S. at 694-95. See also Bowling, 80 S.W.3d at 412; and Foley, 17
S.W.3d at 884. Finally, we review a trial court’s findings of fact under the clearly
erroneous standard of review. CR6 52.01.
Gray argues he received ineffective assistance of counsel, raising five
allegations of counsel’s deficient performance. Specifically, Gray supports his
claim by stating his counsel: “A. Had problems due to pregnant. B. Failed to
request for expert funding; thus created a one sided trial. C. The defendant had
numerous mental problems yet counsel failed to have the defendant evaluated
before trial. D. Failed to impeach the Commonwealth Witnesses even though they
were convicted felons. E. Allowed a tainted jury member to remain on the jury
panel.” However, Gray fails to point to any specific reference in the record
supporting any of his contentions. We are convinced no such support exists.
The record indicates Gray’s counsel was, in fact, pregnant, but we are
unable to ascertain what medical problems Gray contends adversely affected her
performance. The only issue we have been able to locate is a single pre-trial
hearing at which counsel was not present due to unspecified medical reasons. That
Kentucky Rules of Civil Procedure.
hearing was rescheduled to a later date and counsel appeared at that later hearing.
Gray suffered no prejudice from this continuance as he remained free on bail.
Gray specifies nothing in the record indicating how counsel’s pregnancy hindered
her representation of Gray and we will not infer a constitutional violation from a
silent record. Hodge v. Commonwealth, 116 S.W.3d 463, 468 (Ky. 2003).
Similarly, Gray has failed to specify any support in the record for his
contention counsel was ineffective for failing to request funding for an expert
witness. Gray does not indicate what expert he needed or how such expert would
have aided in his defense. He does not indicate how he was prejudiced by this
alleged failure nor how counsel’s actions were objectively unreasonable. Mills v.
Commonwealth, 170 S.W.3d 310 (Ky. 2005). Thus, this contention is without
Gray has also failed to provide factual support for his allegation trial
counsel should have moved the court to order him to undergo a mental competency
examination prior to trial. He provides no indication he suffered from any mental
defects at the time of trial nor that he informed his counsel of the possible
existence of any such alleged issues. Failure to provide factual support for this
allegation is fatal to his claim. Sanders v. Commonwealth, 89 S.W.3d 380, 390
(Ky. 2002); RCr 11.42(2).
Gray’s contention his trial counsel was ineffective for failing to
impeach the Commonwealth’s witnesses as convicted felons is also devoid of
support from the record and is wholly without merit. Without naming names, Gray
merely claims some of the witnesses were convicted felons. The sole person he
mentions by name was not called as a witness for the Commonwealth or the
defense. The Commonwealth called a probation officer, three police officers, and
the state police crime laboratory examiner who tested the substances recovered
from Gray’s apartment. Nothing in the record indicates any of these witnesses had
been convicted of a felony. As the trial court succinctly noted in its order denying
relief, “[c]learly, Gray is conjuring up claims of ineffective assistance of counsel.”
Gray’s final allegation of ineffective assistance relates to a jury
member he claims was tainted. Although Gray specifies a member of his jury
panel, he does not indicate how this juror was tainted or biased, how he knew such
to be true, or how his counsel was made aware of the taint or bias. Once again,
bare assertions of error without a supporting factual basis warrant summary
dismissal of such claims. Sanders, supra.
It is abundantly clear to this Court that all of Gray’s allegations
regarding the ineffectiveness of his trial counsel are refuted on the face of the
record. The trial court’s findings of fact are clearly supported by substantial
evidence and we will not disturb them on appeal. CR 52.01. Therefore, no
evidentiary hearing was warranted, no appointment of counsel was required, and
the trial court correctly denied Gray the relief he requested.
Finally, Gray contends the trial court erred in failing to vacate his
conviction based upon alleged prosecutorial misconduct. This argument is a pure
fabrication. Gray again provides us with no references to the record. Further, after
a careful review of the record, we hold this issue has not been preserved for our
review as Gray did not argue this issue in his direct appeal. “It is an established
principle that this Court will not address as issue which has been raised in a direct
appeal or which should have been raised in a direct appeal.” Brown v.
Commonwealth, 788 S.W.2d 500, 501 (Ky. 1990). See also, Baze v.
Commonwealth, 23 S.W.3d 619, 626 (Ky. 2000). Additionally, RCr 11.42 motions
are “limited to the issues that were not and could not be raised on direct appeal.”
Hodge v. Commonwealth, 116 S.W.3d 463, 468 (Ky. 2003). As Gray could have,
but did not, raise the issue of prosecutorial misconduct on direct appeal, he is now
prohibited from attempting to litigate that issue in this post-conviction proceeding.
Therefore, for the foregoing reasons, the judgment of the Muhlenberg
Circuit Court is affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Joey Howard Gray, pro se
Attorney General of Kentucky
Assistant Attorney General