Opinion
NO. 2008-CA-000249-MR
01-18-2013
WARREN WADLINGTON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Warren Wadlington, pro se Fredonia, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE JAMES C. BRANTLEY, JUDGE
ACTION NOS. 03-CR-00382 AND 05-CR-00004
OPINION
AFFIRMING
BEFORE: CLAYTON, KELLER, AND LAMBERT, JUDGES. CLAYTON, JUDGE: This is an appeal from the denial of a Kentucky Rules of Criminal Procedure ("RCr") 11.42 motion. Based upon the following, we affirm the decision of the trial court.
BACKGROUND INFORMATION
The Appellant, Warren Wadlington, pled guilty to two counts of Trafficking in Methamphetamine and of being a Persistent Felony Offender I ("PFO"). One count was based on charges against him in Case No. 03-CR-00382; the other information was based on Indictment No. 05-CR-00004. He was sentenced to five years' imprisonment on each of the trafficking charges, enhanced to ten years on the PFO charge, for a total prison term of ten years. Wadlington filed an RCr 11.42 motion contending that he had ineffective assistance of counsel. Wadlington's appeal was held in abeyance until October of 2012. Based upon the following, we affirm the decision of the trial court.
STANDARD OF REVIEW
We review the trial court's denial of an RCr 11.42 motion for an abuse of discretion. An RCr 11.42 "motion is limited to [the] issues that were not and could not be raised on direct appeal." Sanborn v. Commonwealth, 975 S.W.2d 905, 908-09 (Ky. 1998), overruled on other grounds.
In order to prevail on an ineffective assistance of counsel claim, a movant must show that his counsel's performance was deficient and that but for the deficiency, the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). With respect to a guilty plea, there is also a requirement that the movant show that counsel's performance so seriously affected the case, that but for the deficiency, the movant would not have pled guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985). Courts must also 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).
Pursuant to the holding in Strickland, supra, a "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." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
DISCUSSION
Wadlington first contends that his attorney was ineffective in failing to make an adequate investigation and that his attorney gave him poor advice in advising him to enter a guilty plea. Specifically, Wadlington contends that his counsel's advice was given without an investigation challenging the Commonwealth's evidence or any effort to prepare a defense. He asserts that the record reveals that his counsel allowed him to plead guilty by way of information in Indictment No. 05-CR-00004.
Wadlington makes the above assertion; however, he does not point to specifically how his counsel could have prepared differently. As for the information in Indictment No. 05-CR-00004, Wadlington received a benefit by combining this indictment with the charges for which he was about to go to trial. He received ten years in each case and the charges were run concurrently. Consequently, he benefited from the plea agreement.
Wadlington's trial counsel testified at the evidentiary hearing on his RCr 11.42 motion that he rejected the Commonwealth's first offer and that he accepted an agreement where Wadlington would serve all ten years because he wanted to avoid a possible twenty-year sentence. We agree with the trial court that Wadlington has not met either prong of the Strickland standard.
Next, Wadlington contends that he wanted to enter a conditional guilty plea and asked his counsel to appeal the ruling on his suppression motion. Wadlington had filed a pro se motion to suppress, but the trial court denied the motion. Wadlington was represented by counsel at the evidentiary hearing on the suppression motion.
When pleading guilty, Wadlington signed a Motion to Enter Guilty Plea in 03-CR-00382 and an Arraignment Order in 05-CR-00004. Both of these forms set forth Wadlington's rights and that in pleading guilty, he was waiving the right to appeal. The trial court conducted a plea colloquy wherein Wadlington stated that he had a college degree, that his attorney had provided services as asked, that he was pleased with his attorney, and that he had had time to consult with his attorney. He also admitted to trafficking in methamphetamine and to being a PFO.
Given the record and the proof surrounding Wadlington's guilty plea, we find the trial court was correct in denying his RCr 11.42 motion. Thus, we affirm the decision of the trial court.
ALL CONCUR. BRIEF FOR APPELLANT: Warren Wadlington, pro se
Fredonia, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky