Opinion
NO. 2015-CA-001759-MR
06-09-2017
BRETT D. WHITTAKER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Aaron Reed Baker Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LINCOLN CIRCUIT COURT
HONORABLE JEFFREY T. BURDETTE, JUDGE
ACTION NO. 10-CR-00049 OPINION
AFFIRMING
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BEFORE: CLAYTON, DIXON AND THOMPSON, JUDGES. DIXON, JUDGE: Brett D. Whittaker appeals from an order of the Lincoln Circuit Court denying his Motion to Vacate, Set Aside or Correct Sentence brought pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42. We affirm.
On July 9, 2010, while traveling northbound on U.S. 27 in his truck, Whittaker crossed the center line and struck a southbound vehicle killing the driver and passenger. Upon investigation, the police discovered evidence of alcohol in his truck and a blood analysis indicated a blood alcohol level of approximately 0.166. In August 2010, Whittaker was indicted on two counts of wanton murder (Kentucky Revised Statute (KRS) 507.020) and two counts of being a persistent felony offender in the second degree (KRS 532.080) (PFO II). On July 19, 2011, Whittaker entered a plea of guilty to the two counts of wanton murder in exchange for the Commonwealth's recommendation for a sentence of twenty years on each count to run concurrently with each other but consecutive to a prior conviction, and dismissal of the PFO II counts. On August 30, 2011, the circuit court sentenced Whittaker consistent with the recommendation.
On May 2, 2014, Whittaker filed an RCr 11.42 Motion to Vacate Sentence and Motion for an Evidentiary Hearing based on ineffective assistance of counsel alleging that counsel failed to conduct an adequate investigation of the case and his alleged failure to properly advise him as to the possible lesser-included offense of manslaughter in the second degree (Manslaughter II). Whittaker requested that his conviction and sentences for wanton murder be vacated or in the alternative, his conviction be amended to guilty for Manslaughter II with sentences of ten years on each count. The Commonwealth filed a response to the motion to vacate and Whittaker subsequently filed a supplement to his motion. On September 25, 2015, the circuit court entered an order denying the RCr 11.42 motion and motion for an evidentiary hearing. This appeal followed.
The standard of review for ineffective assistance of counsel involves a two-prong test requiring the defendant to show: (1) deficient performance by counsel and (2) resulting prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985). With respect to a guilty plea, the standard requires the defendant to establish: (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 pled guilty, but would have insisted on going to trial. Bronk v. Commonwealth, 58 S.W.23d 482, 486-87 (Ky. 2001). See also Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Commonwealth v. Pridham, 394 S.W.3d 867, 875 (Ky. 2012); Embry v. Commonwealth, 476 S.W.23d 264, 268 (Ky. App. 2015) (citing Strickland, 466 U.S. at 689, 104 S.Ct. at 2065). The court must consider the totality of the circumstances surrounding the plea and juxtapose the presumption of voluntariness inherent in a proper plea colloquy with the inquiry into the performance of counsel. Commonwealth v. Rank, 494 S.W.3d 476, 481 (Ky. 2016) (citing Bronk, 58 S.W.3d at 486). The evidence of guilt and the potential sentence if convicted at trial compared to the consequences of a guilty plea are factors to be considered. Padilla v. Commonwealth, 381 S.W.3d at 322, 329(Ky App. 2012). See also Stiger, 381 S.W.3d at 237 (The movant must allege facts that would support a conclusion that a decision to reject the plea bargain and go to trial would have been rational in light of the valid defenses and the realistic potential for a lower sentence.).
Whittaker contends that defense counsel failed to conduct a sufficient investigation and failed to adequately advise him on the possibility of obtaining a lower sentence at trial based on the lesser-included offense of Manslaughter II. He argues that the facts in his case supported at worst a conviction for Manslaughter II, rather than wanton murder because the latter required a separate aggravating factor in addition to intoxication in order to rise to the level of "circumstances manifesting extreme indifference to human life." Thus, Whittaker claims that if counsel had adequately advised him, he would not have accepted the Commonwealth's offer and would have proceeded to trial where the outcome would have been more favorable than the plea bargain.
A person may be convicted for Manslaughter II if he acted without intent to kill but with awareness and conscious disregard of substantial and unjustifiable risk that his action would result in the victim's death. Saylor v. Commonwealth, 144 S.W.3d 812 (Ky. 2004).
First, we note that Whittaker acknowledges that counsel did briefly tell him that a jury could return a verdict for Manslaughter II, but he alleges that counsel failed to more fully advise him on the elements of that offense and how it could apply to his situation. Whittaker also states that counsel did communicate the terms of the Commonwealth's offer of concurrent twenty-year sentences on wanton murder with dismissal of the two PFO II counts in relation to the fact that he was subject to possibly a life sentence upon conviction of the original counts. The sentencing range on each of the wanton murder counts, which were capital offenses, was not less than twenty years, nor more than fifty years, or life imprisonment. KRS 507.020(1)(b) and KRS 532.030(1). Under KRS 532.110(1)(c), the maximum term for multiple sentences of wanton murder was life imprisonment or a term of seventy years. Under the plea agreement, Whittaker received the minimum sentence on each of the two wanton murder counts with the sentences to run concurrently for a total of twenty years. Meanwhile, the sentencing range for the offense of Manslaughter II, a Class C felony, is not less than five years, nor more than ten years. KRS 507.040 and KRS 532.060(2)(c). Under KRS 532.080(5), the sentences on each Manslaughter II count could have been enhanced because of the PFO II charges to not less than ten years, nor more than twenty years. These sentences would be subject to a possible total sentence of forty years by virtue of being run consecutively under KRS 532.110(1)(c). Whittaker would have been eligible for parole after serving approximately eight years under a maximum Manslaughter II conviction, see 501 KAR 1:030 Section 3(2)(c), or seventeen years under the wanton murder conviction, see KRS 439.3401 and 501 KAR 1:030 Section 3(e)(4)(a), or twenty years for conviction on a life sentence, id.
Kentucky Administrative Rules.
Whittaker's arguments, however, are fundamentally flawed for several reasons. A review of the record indicates that there was sufficient evidence to support a conviction for wanton murder. For instance, a witness to the accident called the police to report the incident shortly after it occurred and told the dispatcher that he was getting ready to report Whittaker as a possible drunk driver just before the crash. Also, during its investigation, the police interviewed witnesses who had observed Whittaker's truck weaving back and forth across the center line prior to the accident. Beer cans were found inside and outside of Whittaker's truck at the crash scene. Testing of Whittaker's blood alcohol level around one hour and forty-five minutes after the accident showed a relatively high level of approximately 0.166. Other factors that would have influenced the sentence or term of imprisonment upon conviction include the multiple deaths involved and Whittaker's prior criminal history as reflected in the PFO II charges, his several prior driving under the influence violations, and the fact that he was on probation for assault in the second-degree at the time of the accident. These factors suggest that had Whittaker rejected the plea agreement, it was unlikely that he would have received a more favorable outcome than he received under the plea agreement. Without deciding whether defense counsel was deficient, we are not persuaded that on an objective basis, had he been more fully advised of the elements of a manslaughter offense, there is a reasonable probability that a person in Whittaker's position would have rejected the plea bargain and insisted on going to trial. Therefore, Whittaker has failed to show sufficient actual prejudice to establish ineffective assistance of counsel.
For the foregoing reasons, we affirm the order of the Lincoln Circuit Court.
THOMPSON, JUDGE, CONCURS.
CLAYTON, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Aaron Reed Baker
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky