RENDERED: SEPTEMBER 2, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0554-MR
DAVID SMITH APPELLANT
APPEAL FROM PERRY CIRCUIT COURT
v. HONORABLE ALISON C. WELLS, JUDGE
ACTION NO. 18-CR-00079
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: TAYLOR, K. THOMPSON, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: David Smith appeals from an order of the Perry Circuit
Court which denied his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion
alleging ineffective assistance of counsel. Appellant argues that he received
ineffective assistance of counsel because his trial counsel failed to conduct an
investigation which would have revealed an exculpatory witness and because he
was not informed of certain collateral consequences of his pleading guilty. We
find no error and affirm.
FACTS AND PROCEDURAL HISTORY
On October 1, 2017, Appellant was staying at the Daniel Boone Inn in
Hazard, Kentucky. Also staying at the inn was Christine Maloney. Ms. Maloney
alleged that sometime during the night, Appellant took her car without permission
and damaged it. On May 21, 2018, Appellant was indicted and charged with theft
by unlawful taking of property that is worth more than $500 but less than $10,000,1
and criminal mischief in the second degree.2 Appellant maintained his innocence;
however, he entered into a plea agreement with the Commonwealth where he
would plead guilty to both charges and the Commonwealth would recommend a
four-year prison sentence, but it would be probated. Appellant was sentenced in
accordance with the plea agreement on January 7, 2019.
On September 17, 2020, Appellant filed an RCr 11.42 motion alleging
ineffective assistance of counsel and requesting a hearing. Appellant alleged that
counsel failed to investigate his case and find an exculpatory witness that had
recently come forward. Appellant also alleged that he was not informed that his
1
Kentucky Revised Statutes (KRS) 514.030(2)(d). This statute has since been amended and the
subsection is now numbered KRS 514.030(2)(e).
2
KRS 512.030.
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license would be suspended for a year once he pleaded guilty and that he would
have to undergo weekly drug testing as part of his probation.
On February 5, 2021, the trial court held an evidentiary hearing. Two
Department of Public Advocacy (DPA) attorneys who represented Appellant at
trial testified. Also testifying were a DPA investigator, Appellant, and the alleged
exculpatory witness, Austin Taylor. Appellant’s trial counsel testified that they
could not remember many specifics regarding Appellant’s case, but they described
their usual trial tactics and what would be involved in accepting a plea agreement.
The DPA investigator testified about contacting and speaking with Mr. Taylor.
The investigator also spoke with the owner of the Daniel Boone Inn in an attempt
to locate guest records for the night the car was stolen but was informed those
records are destroyed after six months. Mr. Taylor testified that he randomly met
Appellant at the Probation and Parole Office, began talking with him, and realized
he was present at the Daniel Boone Inn on the day the vehicle was stolen. He
stated that he had a room at the inn and socialized with Ms. Maloney and her
boyfriend the night of October 1, 2017. He also testified that he did not think
Appellant could have stolen the car because Ms. Maloney and her boyfriend gave
him a ride from the Daniel Boone Inn in Ms. Maloney’s car the morning after the
car was supposedly stolen.
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The trial court ultimately denied Appellant’s motion. The court found
that Mr. Taylor’s testimony was not credible and that the license suspension and
drug testing arguments were without merit. This appeal followed.
ANALYSIS
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, 2064, 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
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.
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Id. 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. 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. at 694, 104 S.
Ct. at 2068.
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
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.
Id. at 689, 104 S. Ct. at 2065 (citations omitted). “Appellant is not guaranteed
errorless counsel or counsel that can be judged ineffective only by hindsight, but
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rather counsel rendering reasonably effective assistance at the time of trial.”
Parrish v. Commonwealth, 272 S.W.3d 161, 168 (Ky. 2008) (citations omitted).
At the trial court level, “[t]he burden is upon
the accused to establish convincingly that he was
deprived of some substantial right which would justify
the extraordinary relief afforded by . . . RCr 11.42.” On
appeal, the reviewing court looks de novo at counsel’s
performance and any potential deficiency caused by
counsel’s performance.
And even though, both parts of
the Strickland test for ineffective assistance of counsel
involve mixed questions of law and fact, the reviewing
court must defer to the determination of facts and
credibility made by the trial court. Ultimately however,
if the findings of the trial judge are clearly erroneous, the
reviewing court may set aside those fact determinations.
[Kentucky Rule of Civil Procedure] CR
52.01 (“[f]indings of fact shall not be set aside unless
clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of
the witness.”) The test for a clearly erroneous
determination is whether that determination is supported
by substantial evidence. This does not mean the finding
must include undisputed evidence, but both parties must
present adequate evidence to support their position.
Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008) (citations omitted).
Furthermore, because this case involved a guilty plea, we must take
additional issues under consideration.
A showing that counsel’s assistance was
ineffective in enabling a defendant to intelligently weigh
his legal alternatives in deciding to plead guilty has two
components: (1) that counsel made errors so serious that
counsel’s performance fell outside the wide range of
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professionally competent assistance; and (2) that the
deficient performance so seriously affected the outcome
of the plea process that, but for the errors of counsel,
there is a reasonable probability that the defendant would
not have pleaded guilty, but would have insisted on going
to trial.
Evaluating the totality of the circumstances
surrounding the guilty plea is an inherently factual
inquiry which requires consideration of “the accused’s
demeanor, background and experience, and whether the
record reveals that the plea was voluntarily made.”
While “[s]olemn declarations in open court carry a strong
presumption of verity,” “the validity of a guilty plea is
not determined by reference to some magic incantation
recited at the time it is taken[.]” The trial court’s inquiry
into allegations of ineffective assistance of counsel
requires the court to determine whether counsel’s
performance was below professional standards and
“caused the defendant to lose what he otherwise would
probably have won” and “whether counsel was so
thoroughly ineffective that defeat was snatched from the
hands of probable victory.” Because “[a] multitude of
events occur in the course of a criminal proceeding which
might influence a defendant to plead guilty or stand
trial,” the trial court must evaluate whether errors by trial
counsel significantly influenced the defendant’s decision
to plead guilty in a manner which gives the trial court
reason to doubt the voluntariness and validity of the plea.
Bronk v. Commonwealth, 58 S.W.3d 482, 486-87 (Ky. 2001) (citations omitted).
With the above standard of review in mind, we now move on to
Appellant’s arguments. Appellant’s first argument on appeal is that he received
ineffective assistance of counsel when trial counsel failed to investigate the case,
thereby missing out on the opportunity to find Mr. Taylor. Appellant argues that
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trial counsel should have used a DPA investigator to inquire as to the guests at the
inn on the night in question and that this would have led to the discovery of Mr.
Taylor. Appellant claims that if he knew about Mr. Taylor’s existence, he would
not have pleaded guilty.
“[C]ounsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate must be directly
assessed for reasonableness in all the circumstances, applying a heavy measure of
deference to counsel’s judgments.” Strickland, 466 U.S. at 691, 104 S. Ct. at 2066.
“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. The investigation must be reasonable
under all the circumstances.” Haight v. Commonwealth, 41 S.W.3d 436, 446 (Ky.
2001), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151
(Ky. 2009) (citations omitted).
We do not believe Appellant was prejudiced by counsel’s failure to
investigate the other customers at the inn. During her testimony, the DPA
investigator stated that the owner of the inn only kept customer records for six
months before they were destroyed. The theft of the vehicle occurred on October
1, 2017, and Appellant was indicted on May 21, 2018. The time period between
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Mr. Taylor and Appellant staying at the inn and Appellant’s indictment is over six
months; therefore, it is unlikely that trial counsel would have discovered Mr.
Taylor’s existence prior to the trial date as any customer records would have
already been destroyed. If there was no information on Mr. Taylor to find at the
inn, Appellant could not have been prejudiced by trial counsel’s failure to find him.
Appellant’s other argument on appeal is that his trial counsel was
ineffective for failing to inform him that his driver’s license would be temporarily
suspended upon him pleading guilty and that he would have to take drugs tests
every week. He claims that had he been told about the license suspension and
frequent drug tests, he would not have pleaded guilty.
KRS 186.560(1)(a)4. mandates that anyone convicted of a felony
involving a motor vehicle is to have his or her license suspended. Appellant’s
license was suspended for one year pursuant to KRS 186.560(5). As for the drug
testing, Appellant alleged he was told he would only have to be tested for drugs
once a month, instead of the once a week testing which actually occurred. He
claims that his trial counsel failed to inform him of these collateral consequences.
In support of this argument, Appellant cites to Padilla v. Kentucky,
559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), and Commonwealth v.
Pridham, 394 S.W.3d 867 (Ky. 2012). In Padilla, the United States Supreme
Court held that trial counsel’s performance was deficient for purposes of an
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ineffective assistance claim when counsel failed to inform a defendant that he was
subject to deportation if he pleaded guilty to drug distribution charges. Padilla,
559 U.S. at 368-69, 130 S. Ct. at 1483. In Pridham, the Kentucky Supreme Court
held that incorrect parole eligibility information could also be deemed ineffective
assistance of counsel. Pridham, 394 S.W.3d at 879. The defendant in Pridham
accepted a guilty plea and was sentenced to thirty years in prison. Prior to
accepting the plea agreement, trial counsel informed the defendant that he would
be eligible for parole after six years. Instead, he was not eligible for parole for
twenty years. We must also mention Commonwealth v. Thompson, 548 S.W.3d
881 (Ky. 2018), where the Kentucky Supreme Court held that the failure to inform
a defendant that he would have to register as a sex offender was such deficient
performance that it required an ineffective assistance of counsel hearing to
determine prejudice.
Turning to the issue at hand,
guilty pleas will be entered without awareness of a
collateral consequence of genuine significance to a
particular defendant. We are not prepared to say, and we
do not believe the Supreme Court has mandated, that in
all or even many of those cases the attorney’s assistance
is, for that reason, to be deemed incompetent under the
Sixth Amendment.
Pridham, 394 S.W.3d at 883.
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Here, we do not believe the temporary suspension of a driver’s license
and more frequent drug testing is as severe as deportation,3 registering as a sex
offender,4 or severely overestimating parole eligibility.5 While these consequences
may have caused a hardship on Appellant, counsel’s failure to inform Appellant of
them was not so deficient as to be declared professionally unreasonable.
CONCLUSION
Based on the foregoing, we conclude that Appellant’s trial counsel
was sufficiently effective. The judgment of the trial court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Samuel N. Potter Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Thomas A. Van De Rostyne
Assistant Attorney General
Frankfort, Kentucky
3
See Padilla, 559 U.S. at 365, 130 S. Ct. at 1480, where it states that “deportation is a
particularly severe penalty[.]” (Internal quotation marks and citation omitted.)
4
See Thompson, 548 S.W.3d at 891, where it states that registering as a sex offender has “serious
and lifelong consequences[.]”
5
See Pridham, 394 S.W.3d at 878, where it states that a “sharply extended period of parole
ineligibility is a serious enough and certain enough detriment that a person pleading guilty is
entitled to know about it.”
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