RENDERED: JULY 16, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1351-MR
SAMUEL L. GAMBREL APPELLANT
APPEAL FROM KNOX CIRCUIT COURT
v. HONORABLE GREGORY A. LAY, JUDGE
ACTION NO. 16-CR-00233
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: COMBS, KRAMER, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Samuel Gambrel appeals the denial of his Kentucky
Rules of Criminal Procedure (RCr) 11.42 motion in which he alleged ineffective
assistance of trial counsel. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
Two confidential informants, Kenny Hoskins and
Michelle Philpot, were working with the Kentucky State
Police to buy illegal drugs. Hoskins, a paid informant,
contacted Gambrel and arranged to purchase two
oxycodone pills. Det. Tyson Lawson searched Hoskins
and Philpot, wired Hoskins with a video camera, and
gave Hoskins $115 to make the buy.
Gambrel picked up the informants at their home and
drove them to Flat Lick, Kentucky, stopping for gas
along the way. After a short drive, Gambrel pulled into a
driveway where a camper was parked. Hoskins gave
Gambrel the buy money, Gambrel exited the vehicle and
walked to the camper. A few minutes later, Gambrel
returned to the vehicle with two and one-half oxycodone
pills and a syringe. Gambrel gave two of the pills to
Hoskins. While sitting in the vehicle, Gambrel crushed
the remaining one-half pill, prepared a syringe in which
he placed the crushed pill, and injected himself. Using a
smartphone, Gambrel confirmed the authenticity of the
pills when Hoskins questioned what he had just bought.
Gambrel then drove the informants back to their home,
and Hoskins and Philpot delivered the two oxycodone
pills to Det. Lawson.
Gambrel was indicted on a single count of first-degree
trafficking in a controlled substance, second or
subsequent offense.[1] At a one-day jury trial convened
on April 18, 2017, a video of the drug buy was
introduced through Hoskins. Jurors saw Gambrel
approach the camper, step to the camper’s open door,
return with drugs for Hoskins, and prepare a syringe and
inject himself with oxycodone. Jurors were instructed on
trafficking and possession.
Gambrel v. Commonwealth, No. 2017-CA-000946-MR, 2018 WL 3491858, at *1
(Ky. App. Jul. 20, 2018).
1
Kentucky Revised Statute (KRS) 218A.1412, a class C felony.
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The jury found him guilty of the trafficking charge and sentenced him
to ten years in prison. Gambrel then appealed to another panel of this Court, which
affirmed the conviction. On March 22, 2019, Gambrel filed a pro se RCr 11.42
motion alleging multiple instances of ineffective assistance of counsel. On July
17, 2019, the trial court entered an order denying the motion without a hearing.
This appeal followed.
ANALYSIS
Before the trial court, Gambrel raised multiple issues regarding
ineffective assistance of counsel; however, he only raises one issue on appeal.
Gambrel argues that trial counsel was ineffective for failing to request a jury
instruction for criminal facilitation. KRS 506.080 states:
(1) A person is guilty of criminal facilitation when,
acting with knowledge that another person is committing
or intends to commit a crime, he engages in conduct
which knowingly provides such person with means or
opportunity for the commission of the crime and which in
fact aids such person to commit the crime.
(2) Criminal facilitation is a:
(a) Class D felony when the crime facilitated is a
Class A or Class B felony or capital offense;
(b) Class A misdemeanor when the crime
facilitated is a Class C or Class D felony;
(c) Class B misdemeanor when the crime
facilitated is a misdemeanor.
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Gambrel was charged with a class C felony, but facilitation of a
criminal offense in this case would be a class A misdemeanor. The trial court held
that trial counsel chose to argue that Gambrel merely possessed the oxycodone and
did not sell it. The trial court held that this was a sound trial strategy and not
seeking a facilitation instruction was part of that strategy. The trial court also held
that, based on the evidence presented at trial, Gambrel was not entitled to a
criminal facilitation instruction.
To prevail on a claim of ineffective assistance of counsel, Appellant
must show two things:
First, the defendant must show that counsel’s
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense.
This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). “[T]he proper standard for attorney performance is that of reasonably
effective assistance.” Id.
An error by counsel, even if professionally
unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error had no
effect on the judgment. The purpose of the Sixth
Amendment guarantee of counsel is to ensure that a
defendant has the assistance necessary to justify reliance
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on the outcome of the proceeding. Accordingly, any
deficiencies in counsel’s performance must be prejudicial
to the defense in order to constitute ineffective assistance
under the Constitution.
Id., 466 U.S. at 691-92, 104 S. Ct. at 2066-67 (citations omitted). “It is not enough
for the defendant to show that the errors had some conceivable effect on the
outcome of the proceeding.” Id., 466 U.S. at 693, 104 S. Ct. at 2067. “The
defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id., 466 U.S. at 694, 104 S. Ct. at 2068. Additionally, “a hearing is
required only if there is an issue of fact which cannot be determined on the face of
the record.” Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993).
Judicial scrutiny of counsel’s performance must be
highly deferential. It is all too tempting for a defendant
to second-guess counsel’s assistance after conviction or
adverse sentence, and it is all too easy for a court,
examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omission
of counsel was unreasonable. A fair assessment of
attorney performance requires that every effort be made
to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s
perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must indulge a
strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that,
under the circumstances, the challenged action “might be
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considered sound trial strategy.” There are countless
ways to provide effective assistance in any given case.
Even the best criminal defense attorneys would not
defend a particular client in the same way.
Strickland, 466 U.S. at 689-90, 104 S. Ct. at 2065 (citations omitted).
We conclude that the trial court did not err in denying Gambrel’s RCr
11.42 motion. We agree with the trial court that Gambrel would not have been
entitled to a facilitation instruction; therefore, Gambrel’s trial counsel was not
ineffective for failing to request such an instruction. “A court generally is required
to instruct a jury on all offenses that are supported by the evidence. But a trial
court does not need to give an instruction on a lesser-included offense if there is no
evidentiary foundation for the instruction.” Commonwealth v. Swift, 237 S.W.3d
193, 195 (Ky. 2007) (footnotes and citations omitted).
To traffic in a controlled substance means to “manufacture, distribute,
dispense, sell, transfer, or possess with intent to manufacture, distribute, dispense,
or sell a controlled substance[.]” KRS 218A.010(56). On the other hand,
“[f]acilitation reflects the mental state of one who is ‘wholly indifferent’ to the
actual completion of the crime.” Springfield v. Commonwealth, 410 S.W.3d 589,
595-96 (Ky. 2013) (citations omitted). Here, Gambrel “was fully aware that he
was in fact obtaining and selling drugs. He did not provide another person the
‘means or opportunity’ to commit a crime; he, instead, committed a crime
himself.” Id. at 596. Gambrel was not wholly indifferent to the completion of the
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crime; he participated at every step. He drove the confidential informants to the
location of the drugs, used their money to buy the drugs, and distributed the drugs
to them.
CONCLUSION
Based on the foregoing, we affirm the judgment of the trial court. The
court did not err in denying Gambrel’s RCr 11.42 motion because he would not
have been entitled to a facilitation instruction based on the evidence presented at
trial.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Stephanie A. Trantham Daniel Cameron
Pineville, Kentucky Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky
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