DENVER RAY WILLIAMS V. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED : MARCH 24, 2011
TO BE PUBLISHED
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DENVER RAY WILLIAMS
ON REVIEW FROM COURT OF APPEALS
CASE NO . 2008-CA-001162-MR
HARDIN CIRCUIT COURT NO . 03-CR-00613
COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
Denver Ray Williams was arrested for trafficking in a controlled
substance based upon nineteen grams of suspected cocaine found during a
controlled drug buy in a car that Williams occupied as a passenger . The police
searched Williams at the scene and placed him in a police cruiser. For this
incident, Williams was ultimately indicted for trafficking` in cocaine.
En route to the police station in the back of the cruiser, Williams
attempted to swallow a plastic bag containing 4 .8 grams of suspected cocaine .
Williams was ultimately indicted for a second count of trafficking in a
controlled substance, as well as tampering with physical evidence, based upon
his unsuccessful attempt to swallow the second quantity of cocaine .
We granted discretionary review in this case to consider whether
Williams may properly be charged with two counts of trafficking in a controlled
substance for possessing one quantity of cocaine in a vehicle and another
quantity on his person shortly thereafter .' Under the facts presented in this
case, we conclude that the evidence supported two trafficking charges because
Williams possessed two discrete amounts of cocaine in two discrete locations .
The Court of Appeals reached the same conclusion, so we affirm their holding.
I. FACTUAL AND PROCEDURAL HISTORY.
Williams pleaded guilty in the trial court to the two trafficking charges
and the tampering with physical evidence charge. He received a cumulative
twenty-one year sentence, with one year to serve' and service of the remaining
twenty years suspended while Williams was placed on probation.
After Williams's probation was revoked, he filed a motion for postconviction relief under Kentucky Rules of Criminal Procedure (RCr) 11 .42,
mainly claiming that the dual trafficking convictions constituted double
jeopardy and that his attorney was ineffective for failing to object on double
jeopardy grounds . After holding a hearing, the trial court denied Williams
relief; and the Court of Appeals affirmed.
The actual amount of additional time that Williams would be incarcerated was
vastly reduced, if not eliminated entirely, by the fact that the final judgment of
conviction gave Williams credit for 305 days of jail-time credit .
Williams raises two main arguments. His first main argument is that the
two trafficking charges violate his right to be free from double jeopardy. As a
part of that argument, he further contends that his counsel was ineffective for
failing to object to the second trafficking charge on double jeopardy grounds.
His second main argument is that his trial counsel was ineffective for failing to
conduct an adequate investigation of the case. We conclude that Williams is
not entitled to relief on either ground.
A. No Double Jeopardy Based on Two Trafficking Charges.
Section 13 of the Kentucky Constitution provides, in relevant part, that
"[n]o person shall, for the same offense, be twice put in jeopardy of his life or
limb . . . ." This section of our state Constitution is known as the Double
Jeopardy Clause . 2 The statutory enactment aimed at fleshing out the
constitutional provision of the Double Jeopardy Clause is KRS 505 .020 . As it
pertains to the case at hand, subsection one of that statute provides, in
pertinent part, as follows:
When a single course of conduct of a defendant may establish the
commission of more than one (1) offense, he may be prosecuted for
each such offense. He may not, however, be convicted of more
than one (1) offense when . . . [t]he offense is designed to prohibit a
continuing course of conduct and the defendant's course of
conduct was uninterrupted by legal process, unless the law
expressly provides that specific periods of such conduct constitute
2 See also U.S . Const . Amend . V.
Williams contends that the two trafficking charges "arise from a single course
of conduct, namely a foiled drug sale ." So Williams argues that his "possession
of the cocaine was therefore a continuing course of conduct" and that his
arrest "did not fully interrupt his possession of the quantity of cocaine." We
We agree that, generally, "[c]ontinued possession of contraband is a
single course of conduct that gives rise to a single offense." 3 But, in the case at
hand, Williams possessed two discrete quantities of cocaine - the quantity
found in the car and the quantity that he tried to swallow while in the back of
the cruiser. And precedent requires that the same contraband must be
continually possessed -- without an interruption in the form of legal process in order for only one offense to have occurred .4 Even if we assumed, solely for
the sake of argument, that the cocaine that Williams tried to swallow was part
of the same stash of cocaine as that found in the vehicle - each portion of
cocaine assumed to be part of a single quantity of contraband - Williams is
still not entitled to relief because his possession of the cocaine that he tried to
swallow came after the interruption of the legal process, his arrest.5
Stewart v. Commonwealth, 306 S.W.3d 502, 506 (Ky. 2010) .
Fulcher v. Commonwealth, 149 S.W.3d 363, 376 (Ky. 2004) ("other jurisdictions
have held that uninterrupted possession of the same contraband over a period of
time is but one offense constituting a continuing course of conduct, precluding
convictions of multiple offenses for possession of the same contraband on different
dates") (emphasis added) . In Stewart, we construed our reference in Fulcher to the
holdings of other jurisdictions regarding continuous possession of the same
contraband constituting only one offense to have been an approval of those other
jurisdictions' holdings . See 306 S.W.3d at 506 .
We reject as speculation Williams's assertion that if the police "had conducted a
proper pat-down search of Mr. Williams prior to placing him in the back of the
We have held at least twice in recent years that an arrest constitutes
legal process sufficient to interrupt the possession of contraband (i.e.,
cocaine) .6 Williams acknowledges that it "seem[s] obvious" that his arrest
constitutes legal process but contends that his case is factually
distinguishable . Essentially, Williams contends that his case is distinguishable
because he was not asked whether he possessed any more contraband after
being arrested, meaning that his continued possession of the second quantity
of cocaine after being arrested was not the result of a new impulse to commit a
drug-related offense . Williams's argument is a request for us to return to the
police car, they likely would have found the additional bag of cocaine . . . ."
Obviously, such a conclusion is speculative . And it is beyond dispute that illegal
drugs are not infrequently concealed in the most private areas of the human body.
So discovery of those drugs during a routine search or pat-down in the field may
not inevitably occur, nor would a failure to find those well-hidden drugs in the field
necessarily signal sloppy or inefficient police work. Instead, drugs hidden in the
private areas of the human body may sometimes only be discovered by an invasive
search . We decline to hold that police must always discover all drugs concealed on
a defendant's person via a quick field search because such a holding would be
tantamount to creating an unreasonable requirement that the authorities must
conduct a full-blown, invasive body search in the field immediately after arresting a
See, e.g., Stewart, 306 S .W.3d at 506 ("A quantity of cocaine was discovered in a
small bag in the vehicle before Stewart arrived at the detention facility. A second
quantity of cocaine was ultimately found on his person following his arrest. His
arrest constitutes `legal process' such as to interrupt his possession of
cocaine . . . ...) ; Fulcher, 149 S .W .3d at 377 ("Under our statute, the continuing
course of conduct can only be carved into separate offenses if it has been
interrupted by legal process. `Legal process' would include an arrest warrant, an
indictment, or an arraignment . We conclude that Appellant's arrest for use or
possession of drug paraphernalia on July 24, 2001, was a legal process that
interrupted his possession of the aluminum foil `boat' so that his subsequent
possession of the same paraphernalia (if it was the same) would constitute a
separate offense . Thus, if he was twice convicted of possessing the same aluminum
foil `boat,' those convictions did not constitute double jeopardy .") (citation omitted) .
single impulse test, which we have definitely jettisoned and which we decline to
We also disagree with Williams's assertion that we should follow the
rationale in Rashad v. Burt, a decision from the United States Court of Appeals
for the Sixth Circuit .8 In Rashad, police found one stash of cocaine in a
defendant's home and another stash of cocaine when they later searched the
defendant's vehicle, which had been impounded following the defendant's
arrest. The defendant ultimately filed a habeas corpus action, and the Sixth
Circuit held that the defendant should not have been subjected to two separate
charges because his "possession of both quantities occurred at the same time
and place, and displayed a single intent and goal . . . ... - that of distribution.9
Rashad has been criticized for reasoning "inconsistent with a wealth of
Supreme Court authority . . . ."la And, as it pertains to the specific facts of the
case at hand, Rashad does not discuss whether the defendant's arrest could
have been construed as legal process sufficient to interrupt the continuous
possession . By contrast, we remain convinced that our precedent holding that
a defendant may properly be charged with multiple offenses based on
Commonwealth v. Burge, 947 S .W.2d 805, 811 (Ky. 1996) ("we now depart from the
`same conduct' test . . . and the `single impulse' test . . . and declare that double
jeopardy issues arising out of multiple prosecutions henceforth will be analyzed in
accordance with the principles set forth in Blockburger v. United States, supra, and
KRS 505 .020 .") . See also Dixon v. Commonwealth, 263 S .W.3d 583, 588 (Ky. 2008)
("Although we once departed from using the Blockburger test, the resulting
confusion moved us to state emphatically [in Burge] that we would `henceforth' rely
upon Blockburger to resolve double jeopardy claims.") .
8 108 F.3d 677 (6th Cir. 1997) .
9 Id. at 681 .
10 United States v. Williams, 155 F.3d 418, 421 (4th Cir. 1998) .
possession of the same contraband if the possession is interrupted by legal
process - such as an arrest in the case at hand - is a correct exposition of
the law and is applicable to this case.
Moreover, Rashad appears to be in conflict with current Kentucky
In Simpson, the defendant was found in a car with marijuana on
his person . The defendant was arrested and charged with misdemeanor
trafficking in marijuana, and the car was impounded . A few days later, the car
was searched under a search warrant, and more marijuana was discovered .
The defendant was charged with felony trafficking in marijuana based upon the
marijuana found in the car. The defendant pleaded guilty to possession of
marijuana based upon the marijuana found on his person and then argued
that double jeopardy prevented him from being subjected to a separate charge
for the marijuana found in the car. The Court of Appeals disagreed, correctly
holding that "[t]he difference in time between the patdown and the search of
the car bolster[ed] our belief that Simpson's charges did not spring from the
same incident." 12 The Court of Appeals also rejected Simpson's argument that
the police erred by failing to conduct a search of the car incident to the initial
arrest for misdemeanor trafficking in marijuana, instead holding that it did
"not find fault with the officers' actions in choosing to secure the car and
obtain a search warrant before conducting a search of Simpson's car." 1 3
Simpson v. Commonwealth, 159 S.W.3d 824 (Ky.App. 2005) .
Id. at 828 .
Although Simpson does not discuss Rashad, it appears to us that the
holdings are in conflict. Obviously, the facts of the case at hand are different
from both Rashad and Simpson. In the case at hand, the later charge was
based upon a quantity of drugs found on Williams's person after Williams's
initial arrest, and - unlike Simpson and Rashad --- there were no drugs later
found in a vehicle impounded pursuant to a defendant's drug-related arrest.
Neither Rashad nor Simpson, therefore, is directly controlling in the case at
hand, although we construe Simpson as being in general accord with Kentucky
double jeopardy precedent. So to the extent that Rashad (which is factually
distinguishable from the case at hand because there is no indication in Rashad
that the defendant continued knowingly to possess a quantity of cocaine after
being arrested) 14 may be construed as leading to a different conclusion, we
respectfully decline to follow its reasoning.
In sum, therefore, we conclude that Williams was properly charged with
two separate trafficking offenses . 15 Consequently, any objection based on
double jeopardy grounds lodged by Williams's trial counsel perforce would have
lacked merit . An attorney cannot be ineffective for failing to raise a nonmeritorious claim. 16 Accordingly, we reject Williams's contention that his
To the contrary, the Sixth Circuit repeatedly emphasized in Rashad that the
defendant possessed the different stashes of cocaine "at the same time and
place . . . ." 108 F .3d at 680, 681 .
is Williams does not argue that either quantity of cocaine was insufficient to support a
charge of trafficking in a controlled substance.
16 See, e.g., Bowling v. Commonwealth, 80 S.W.3d 405, 415 (Ky. 2002) ("It is not
ineffective assistance of counsel to fail to perform a futile act."); Clemens v.
Armontrout, 921 F.2d 187, 191 (8th Cir. 1990) ("Since the double jeopardy
attorney was ineffective for failing to object on double jeopardy grounds to the
two trafficking charges.
B. No Ineffective Assistance of Counsel Based Upon Trial Counsel's
Allegedly Inadequate Investigation. .
Williams's second main argument is that his trial counsel was ineffective
for failing to conduct an adequate investigation of Williams's case. More
specifically, Williams contends that his trial counsel, who was employed by the
public defender's office, stated at the hearing on Williams's RCr 11 .42 motion
that he had not investigated the facts of Williams's case because he had an
excessively burdensome caseload. Trial counsel further testified in the
RCr 11 .42 hearing that he did not believe an investigation was necessary
because Williams wanted the case resolved as quickly as possible . Williams
contends his attorney's lack of investigation caused him to suffer prejudice
because the attorney negotiated a plea agreement without talking to witnesses
and without having obtained a general understanding of the strength - or
weakness - of the Commonwealth's case against Williams.
We disagree with Williams's assertion that he is entitled to postconviction relief. But before addressing the rationale underlying our decision,
we must set forth the proper standards that guide our review .
argument is meritless, there can be no claim of ineffective assistance for counsel's
failure to point it out.") .
"Before deciding whether to plead guilty, a defendant is entitled to the
effective assistance of competent counsel." 17 In order to determine if counsel
was effective, a court must "first determine whether counsel's representation
`fell below an objective standard of reasonableness ."" 8 Although a court is not
bound by them, standards and norms of practice set forth by organizations
such as the American Bar Association can be useful tools in determining
whether an attorney's performance fell below the "practice and expectations of
the legal community . . .
The second query a court must engage in to determine if counsel was
ineffective is "whether there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different." 20
This inquiry is aimed at determining whether counsel's allegedly ineffective
performance prejudiced a criminal defendant. In the context of a guilty plea,
such as in the case at hand, "to obtain relief . . . a petitioner must convince the
court that a decision to reject the plea bargain would have been rational under
the circumstances . "21
A post-conviction petitioner's burden is heavy because "[s)urmounting
Strickland's high bar is never an easy task."22 Indeed, a reviewing court
U.S ._, 130 S .Ct. 1473, 1480-81 (2009) (internal quotation
marks omitted) .
Id. at 1482, quoting Strickland v. Washington, 466 U .S. 668, 688 (1984) .
Padilla, 130 S.Ct. at 1482.
Id. (internal quotation marks omitted) .
Id. at 1485 .
Padilla v. Kentucky,
"should, therefore, presume that counsel satisfied their obligation to render
competent advice at the time their clients considered pleading guilty ." 2 3
Williams heavily relies upon guidelines from organizations such as the
National Legal Aid and Defender Association to claim that counsel should
conduct an investigation of a case, regardless of a defendant-client's desire to
enter a guilty plea. We decline to be bound by the guidelines relied upon by
Williams or, for that matter, any other similar guidelines promulgated by any
legal organization or association . Although we are sympathetic to the high
volume of cases public defenders often must carry, we accept, as a general
rule, that an effective attorney'
regardless of a high caseload - would
conduct at least some investigation into the client's case.24 But we need not
determine whether Williams's attorney's investigation was adequate because
Williams fails to demonstrate prejudice resulting from his counsel's allegedly
deficient performance .25
Haight v. Commonwealth, 41 S .W.3d 436, 446 (Ky. 2001) ("This Court has
recognized the necessity for complete investigation by defense counsel . We must
agree with the view expressed by the United States Supreme Court in Strickland,
supra, to the effect that counsel has a duty to make reasonable investigation or to
make a reasonable decision that makes particular investigation unnecessary under
all the circumstances and applying a heavy measure of deference to the judgment of
counsel . A reasonable investigation is not an investigation that the best criminal
defense lawyer in the world, blessed not only with unlimited time and resources,
but also with the benefit of hindsight, would conduct. Thomas v. Gilmore, 144 F.3d
513 (7th Cir.1998) . The investigation must be reasonable under all the
circumstances .") .
Haight was overruled on other grounds by Leonard v. Commonwealth, 279 S .W.3d
151, 159 (Ky. 2009) .
Strickland, 466 U.S. at 697 ("Although we have discussed the performance
component of an ineffectiveness claim prior to the prejudice component, there is no
reason for a court deciding an ineffective assistance claim to approach the inquiry
To demonstrate prejudice, Williams argues that his attorney negotiated
plea agreement with the Commonwealth without first adequately investigating
Williams's case. Even if we assume, solely for the sake of argument, that the
attorney failed to conduct an adequate investigation26 (i.e., we assume deficient
performance), Williams has not shown demonstrable prejudice as a result of
that deficient performance . First, the plea agreement negotiated by Williams's
attorney is highly favorable to Williams . In other words, since the terms of the
plea agreement are quite favorable to Williams2 7 and because the plea
agreement enabled Williams to achieve his goal of resolving the case and being
free from custody, Williams has failed to show that the allegedly inadequate
in the same order or even to address both components of the inquiry if the
defendant makes an insufficient showing on one. In particular, a court need not
determine whether counsel's performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged deficiencies . The
object of an ineffectiveness claim is not to grade counsel's performance . If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed .") .
We are aware that the record reflects that Williams's attorney did communicate at
times with Williams about Williams's case and that Williams's attorney did conduct
at least some basic level of investigation because the attorney did speak to at least
one police officer . So it cannot be said that Williams's attorney totally ignored
Williams's case or failed to conduct any investigation whatsoever, and we do not
intend to so hold. To the contrary and in the interest of expediency and efficiency,
as envisioned by Strickland, we are merely assuming for purposes of argument that
the attorney's investigation was deficient because Williams has not demonstrated
any actual prejudice stemming from that purportedly inadequate investigation .
Williams was charged with two counts of first-degree trafficking in a controlled
substance (Class C felony offenses, as per the terms of the indictment), one count
of tampering with physical evidence (a Class D felony), and being a persistent
felony offender (PFO) in the first degree. Nonetheless, his plea agreement resulted
in his receiving a sentence that required him to serve only one year of
imprisonment (toward which he received at sentencing 305 days of jail-time credit),
after which he was placed on probation . Given the multiple felony charges,
including the PFO sentence aggravator, it is clear that the terms of the plea
agreement were favorable to Williams .
investigation and preparation by his attorney caused him to suffer
We also reject Williams's argument that because he was seemingly
acquitted by a jury on an unrelated trafficking charge, he suffered
demonstrable prejudice because of his trial counsel's alleged deficient
performance . The fact that Williams chose to go to trial on other charges does
not have any real bearing on whether he would have chosen to go to trial on
the charges at hand.
Similarly, Williams has not demonstrated prejudice from his attorney's
alleged failure to interview eight witnesses whom Williams wanted subpoenaed .
As the Commonwealth notes in its brief, "though Appellant [Williams]
proffers . . . a list of witnesses he wanted his counsel to interview, Appellant
fails to allege with specificity what evidence those witnesses would have given
to support a viable defense ." RCr 11 .42(2) provides that a petition brought
under that rule "shall state specifically the grounds on which the sentence is
being challenged and the facts on which the movant relies in support of such
grounds. Failure to comply with this section shall warrant a summary
dismissal of the motion." Williams's failure to specify precisely what
exculpatory or mitigating evidence these additional witnesses, many - if not
all - of whom are deceased, would have provided is fatal to his claim that he
was prejudiced by the ostensible lack of investigation by counsel of those
Finally, the record simply refutes any allegation that Williams was
improperly induced or coerced into pleading guilty, or that his guilty plea was
unknowing or otherwise involuntary. 28 It is undisputed that the trial court
conducted a properly thorough colloquy with Williams before accepting
Williams's guilty plea. "Solemn declarations in open court carry a strong
presumption of verity. The subsequent presentation of conclusory allegations
unsupported by specifics is subject to summary dismissal, as are contentions
that in the face of the record are wholly incredible ."29 In short, we reject
Williams's allegation that his attorney's alleged failure to investigate adequately
somehow caused Williams to enter his guilty plea without the assistance of
The opinion of the Court of Appeals affirming the trial court's order
denying Williams RCr 11 .42 relief is affirmed.
All sitting. Abramson, Cunningham, Schroder, Scott, and Venters, JJ.,
concur. Noble, J ., concurs in result only because Appellant possessed: two
different quantities of cocaine, which were sufficient to support two different
convictions without violating KRS 505 .020 or double jeopardy principles .
Although he did not have perfect recollection of the specifics of Williams's case,
Williams's allegedly ineffective attorney testified that his common practice was to
explain all the terms of a plea agreement to his clients as though his clients were in
the third or fourth grade. This practice, when taken together with the colloquy
between the trial court and Williams, invalidates Williams's contention that his
guilty plea was made without counsel and was not a voluntary and intelligent
Blackledge v. Allison, 431 U.S. 63, 74 (1977) .
COUNSEL FOR APPELLANT:
Alexander Phillip DeGrand
Amy Robinson Staples
Assistant Public Advocates
Department of Public Advocacy
100 Fair Oaks Lane, Suite 301
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Attorney General of Kentucky
Christian Kenneth Ray Miller
Assistant Attorney General
Office of Attorney General
Office of Criminal Appeals
1024 Capital Center Drive, Suite 200
Frankfort, Kentucky 40601