RENDERED: MARCH 22, 2024; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1373-MR
TIMOTHY WATKINS APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE A. C. MCKAY CHAUVIN, JUDGE
ACTION NO. 19-CR-000355
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND CALDWELL, JUDGES.
THOMPSON, CHIEF JUDGE: Timothy Watkins, pro se, appeals from an order of
the Jefferson Circuit Court which denied 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
In 2019, Appellant was indicted for multiple crimes relating to child
pornography. On October 23, 2019, Appellant pleaded guilty to some of these
charges and was sentenced to twenty years in prison. On October 5, 2022,
Appellant filed the underlying RCr 11.42 motion in which he raised numerous
allegations of ineffective assistance of counsel. The trial court denied the motion
without holding a hearing and this appeal followed.
STANDARD OF REVIEW
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
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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.
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.
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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 2065-66 (citations omitted).
Where the trial court does not hold an evidentiary
hearing on an RCr 11.42 motion, appellate review is
limited to “whether the motion on its face states grounds
that are not conclusively refuted by the record and which,
if true, would invalidate the conviction.” An evidentiary
hearing is only required “if there is a material issue of
fact that cannot be conclusively resolved, i.e.,
conclusively proved or disproved, by an examination of
the record.”
Haley v. Commonwealth, 586 S.W.3d 744, 750 (Ky. App. 2019) (citations
omitted).
We must also consider that this case involves a guilty plea.
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 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
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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).
ANALYSIS
Appellant’s first argument on appeal is that he was denied effective
assistance when his trial counsel was unprepared for trial. Appellant’s trial was
scheduled for October 21, 2019. When Appellant and his counsel appeared on that
day, trial counsel indicated that he was not prepared because he believed this was
the final pretrial date and not the day of trial.
Appellant suffered no prejudice here. Defense counsel informed the
trial court that there was a tentative plea agreement and that Appellant wanted to
discuss the agreement with his wife. Defense counsel also stated that he could be
ready for trial by the next week if the plea agreement was not accepted. The trial
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court continued the case for two days so the plea could be either accepted or
declined. The court then went on to say that if no agreement was reached a new
trial date could be scheduled. Appellant went on to accept the plea agreement. As
the case was continued and a new trial date was available, there was no prejudice
to Appellant.
Appellant also argues that defense counsel was ineffective because he
failed to investigate the case. He raises multiple issue regarding the failure to
investigate and we will address each one in turn. First, he claims that counsel
failed to investigate false statements a detective made to the grand jury. Appellant
claims some of the pictures and videos described by the detective to the grand jury
did not exist.
“[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.
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2001), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151
(Ky. 2009) (citations omitted).
Appellant believes trial counsel did not investigate this issue because
the case file provided to Appellant by his counsel did not contain any notes
regarding it. We do not believe this allegation is sufficient to support this
argument. “In seeking post-conviction relief, the movant must aver facts with
sufficient specificity to generate a basis for relief.” Lucas v. Commonwealth, 465
S.W.2d 267, 268 (Ky. 1971).
In addition, an email contained in the record from defense counsel
indicates that it would be the jury’s job to determine what pictures and videos
constituted child pornography. We believe this indicates that defense counsel
knew that challenging the evidence would be the best trial strategy. Furthermore,
as the Commonwealth points out in its brief, the appropriate place to challenge the
detective’s prior testimony would be at trial. Trial counsel was not ineffective
here.
Appellant next claims that trial counsel did not investigate the fact
that Appellant lived a nudist lifestyle, which would have indicated the pictures
found in Appellant’s possession were not sexual in nature. This argument is
without merit. The email from defense counsel mentioned above also described
how counsel had contacted the American Association for Nude Recreation and
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sought information from that group. This shows that defense counsel did
investigate Appellant’s nudist lifestyle.
Next, Appellant argues that trial counsel did not investigate the fact
that the other party with whom Appellant was exchanging pictures, was the one
who initiated contact with Appellant. Appellant was allegedly contacted by
another person, referred to as Sandra, over the internet. Appellant claims that if
counsel had reviewed their conversations, he would have discovered that Sandra
initiated contact and that Appellant turned down Sandra’s requests to photograph
his children.
We also believe this argument is without merit. Appellant does not
indicate why he believes defense counsel did not consider investigating Sandra.
Appellant states in his brief that, after he entered the plea agreement, he was
supplied with the messages between Sandra and himself. He does not indicate if
these messages came from the Commonwealth, defense counsel, or some other
source. In addition, regardless of Sandra’s involvement, the fact remains that
Appellant received and kept images that authorities believed to be child
pornography. Sandra’s involvement here is mostly irrelevant to Appellant’s case.
There are no specific facts to suggest defense counsel was ineffective here.
Appellant also argues that defense counsel was ineffective for not
investigating Sandra to determine if this was a case of entrapment. Again, this
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argument is without merit. There are no facts or even inuendo which suggest
Sandra was an agent of law enforcement.
Appellant also claims that counsel was ineffective because he did not
investigate whether the images that were alleged to be child pornography actually
depicted images of a minor in a sexual performance. Kentucky’s child
pornography laws revolve around sexual performance of minors. See Kentucky
Revised Statutes (KRS) 531.300 et seq. Appellant argues that the pictures in
question did show nude minors, but the pictures were not sexual in nature. This
argument is also without merit. As previously stated, the record indicates that
defense counsel knew that challenging the pictures was going to be the main
defense in this case. There is no evidence that counsel did not review the pictures.
Appellant’s final claim revolving around a lack of investigation is that
counsel generally failed to investigate the case and understand that Appellant lived
a nudist lifestyle and was sent pictures he did not request. This issue lacks any
specificity or supporting facts; therefore, we decline to address it. Lucas, supra.
Appellant next argues that counsel was ineffective for failing to raise
an argument of double jeopardy. Appellant was charged with promoting a sexual
performance of a minor, KRS 531.320, and the distribution of matter portraying a
sexual performance by a minor, KRS 531.340. He claims that because these
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charges arose out of the same course of conduct, he was subject to double
jeopardy.
We conclude there was no double jeopardy violation here.
[W]here the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to
be applied to determine whether there are two offenses or
only one, is whether each provision requires proof of a
fact which the other does not. Pursuant to this test, [a]
defendant is put in double jeopardy when he is convicted
of two crimes with identical elements, or where one is
simply a lesser-included offense of the other.
Johnson v. Commonwealth, 553 S.W.3d 213, 218 (Ky. 2018) (internal quotation
marks and citations omitted).
KRS 531.320(1) states: “A person is guilty of promoting a sexual
performance by a minor when, knowing the character and content thereof, he
produces, directs or promotes any performance which includes sexual conduct by a
minor.” KRS 531.340 states in relevant part:
(1) A person is guilty of distribution of matter portraying
a sexual performance by a minor when, having
knowledge of its content and character, he or she:
(a) Sends or causes to be sent into this state for sale or
distribution; or
(b) Brings or causes to be brought into this state for
sale or distribution; or
(c) In this state, he or she:
1. Exhibits for profit or gain; or
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2. Distributes; or
3. Offers to distribute; or
4. Has in his or her possession with intent to
distribute, exhibit for profit or gain or offer to
distribute, any matter portraying a sexual
performance by a minor.
(2) Any person who has in his or her possession more
than one (1) unit of material coming within the provision
of KRS 531.300(2) shall be rebuttably presumed to have
such material in his or her possession with the intent to
distribute it.
Here, both statutes have different elements and neither is a lesser-included offense
of the other; therefore, there was no double jeopardy violation.
Appellant next argues that he received ineffective assistance of
counsel when counsel did not accurately present a plea offer to him. Appellant
alleges that he was offered an eleven-year sentence and would have to serve 85%
before being eligible for parole; however, he then claims that 4 days later that plea
offer was withdrawn and he was offered a new plea agreement with a twenty-year
sentence that would require him serve 20% before he was eligible for parole.
Again, this argument lacks facts to support it. Lucas, supra. There is no evidence
in the record showing an earlier plea offer and Appellant provides no information
surrounding the earlier plea offer or its withdrawal. Ultimately, Appellant agreed
to the twenty-year plea agreement and changed his plea to guilty in open court.
There is no evidence that trial counsel was ineffective here.
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Appellant’s final argument on appeal is that he was denied effective
assistance of counsel due to the cumulative effect of defense counsel’s errors. As
we have previously found no error on behalf of defense counsel, there can be no
cumulative error. McQueen v. Commonwealth, 721 S.W.2d 694, 701 (Ky. 1986).
CONCLUSION
Based on the foregoing, we conclude that Appellant received effective
assistance of counsel and affirm the judgment of the Jefferson Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Timothy Watkins, pro se Daniel Cameron
La Grange, Kentucky Attorney General of Kentucky
Jenny L. Sanders
Assistant Attorney General
Frankfort, Kentucky
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