SCHELL (JOHN L.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: SEPTEMBER 17, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001502-MR
JOHN L. SCHELL
v.
APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE JOHN KNOX MILLS, JUDGE
ACTION NO. 06-CR-00048
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: KELLER AND THOMPSON, JUDGES; HARRIS,1 SENIOR JUDGE.
HARRIS, SENIOR JUDGE: John Schell appeals from a Laurel Circuit Court
order, entered on July 16, 2009, denying his motion for post-conviction relief
under the Kentucky Rules of Criminal Procedure (RCr) 11.42. The sole issue for
1
Senior Judge William R. Harris sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
our review is whether a defense attorney revealing that his client is a convicted
felon during voir dire constitutes ineffective assistance of counsel. Apparently,
this is an issue of first impression in Kentucky. Based upon the totality of the
circumstances of this case, we conclude that defense counsel’s conduct does not
meet the high standards required for relief under RCr 11.42. Therefore, we affirm
the Laurel Circuit Court order.
On February 17, 2006, a Laurel County grand jury indicted Schell for
first-degree trafficking in a controlled substance and being a first-degree persistent
felony offender. The charges stemmed from a narcotics transaction that occurred
on January 18, 2006. On that date, Schell sold six oxycodone pills to an informant
working with the Laurel County Sheriff’s Department. The drug transaction was
recorded by both audio and video evidence.
During voir dire, defense counsel informed the venire that Schell was
a convicted felon. The record reflects that counsel specifically stated:
My last question to you today is that Mr. Schell has been
convicted of a felony previously. Does anyone have a
problem with that? Now this is not today’s case. You
have to prove where he did this crime. Does anybody
have a problem? I’m telling you that up front here and
letting you know the facts up front, that he had a felony
previously. Is there anyone here sitting unlikely to be
fair to him because he is a convicted felon? Either in the
guilt/innocence phase or maybe later on if you found him
guilty in the sentencing phase. Do you think that would
be a problem to anybody?
During the Commonwealth’s case in chief, the audio and video record
of the transaction was presented. Further, two witnesses testified that they had
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witnessed the transaction. Schell argued a defense of entrapment. Through his
counsel’s arguments and cross-examinations, Schell maintained that he had had an
affair with one of the Commonwealth’s witnesses, who had threatened to expose
the affair unless he did not sell drugs to her. Schell did not testify.
Schell was convicted on both counts. He was sentenced to ten years
for first-degree trafficking in a controlled substance, which was enhanced to
twenty years by the first-degree persistent felony offender conviction. Schell
appealed his conviction to the Kentucky Supreme Court. In an unpublished
opinion rendered on January 24, 2008, the Court affirmed the conviction.2
On January 26, 2008, Schell moved the trial court for post-conviction
relief under RCr 11.42. In his motion, Schell claimed that he received ineffective
assistance of counsel based upon defense counsel’s disclosure of his prior felony
conviction during voir dire. The court ordered an evidentiary hearing on the
motion.
During the hearing, defense counsel testified that the evidence against
Schell was overwhelming. Defense counsel believed that entrapment could only
be a viable defense if Schell took the stand. He claimed that during voir dire, he
was still unsure if Schell would testify. Because he believed that a guilty verdict
was inevitable, counsel claimed that he strategically revealed Schell’s prior felony
conviction in order to exclude any jurors who would treat Schell harshly during the
truth-in-sentencing portion of the trial. He testified that he had tried many cases
2
2006-SC-0662-MR.
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where the jury was informed of the defendant’s felony convictions during the guilt
phase, yet still found the defendant not guilty.
Schell also testified during the evidentiary hearing. He claimed that
defense counsel knew that he never intended to testify during the trial.
On July 16, 2009, the trial court entered an order denying Schell’s
RCr 11.42 motion for post-conviction relief. In the order, the trial court provided:
[Defense counsel]’s belief that the elimination of any
juror who had a tendency to weigh a prior felony heavily
against [Schell] prompted him to insure the best jury
panel not only for the trial phase, but also any possible
sentencing phase of [Schell]’s case. The Court finds
such a belief and the implementation of the strategy by
[Defense Counsel] was the best trial strategy [Schell]
could have asked for.
This appeal follows.
In order to receive post-conviction relief based upon ineffective
assistance of counsel, Schell must meet two requirements. First, Schell must show
that defense counsel’s performance was deficient. Strickland v. Washington, 466
U.S. 668, 687, 1045 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Deficient
representation is outside of the wide range of professionally competent assistance.
Id., 466 U.S. at 691, 104 S.Ct. at 2066. We must, therefore, examine counsel’s
conduct in light of professional norms based on a standard of reasonableness.
Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001). Second, Schell must
show that counsel’s deficient representation prejudiced his defense.
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Defense counsel’s voir dire questioning was risky. The strategy,
however, was neither unreasonable nor incompetent. His decision to reveal
Schell’s prior felony was planned and analyzed in light of the overwhelming
evidence of guilt which he knew was forthcoming. Because counsel was confident
that Schell would be convicted, he used the otherwise inadmissible information in
an effort at damage control.
We recognize that in Osborne v. Commonwealth, 867 S.W.2d 484
(Ky. App. 1993), our Court held that the introduction of prior and subsequent DUI
convictions during the trial of a vehicular manslaughter indictment violated the
defendant’s right to a fair trial. Id. at 492. In Osborne, we concluded that
counsel’s failure to object to evidence of the DUI convictions constituted error
requiring reversal. Id. But in the present case trial counsel’s disclosure of Schell’s
felony conviction was specifically intended as a means to ferret out those jurors
who might be particularly harsh at the sentencing phase, which he believed was
imminent.
Although criminal defendants are entitled to effective representation,
there is no right to perfect representation. Our Court will not undertake the task of
critiquing defense strategies. Despite the bold nature of counsel’s statements, we
decline to find that the statements amounted to deficient representation. We do not
reach the prejudice issue.
Accordingly, we affirm the July 16, 2009, order of the Laurel Circuit
Court.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Rachelle N. Howell
Assistant Public Advocate
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky
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