Opinion
NO. 2013-CA-000265-MR
05-23-2014
DAVID BENNETT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: David A. Bennett, Pro Se Central City, Kentucky BRIEF APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM TODD CIRCUIT COURT
HONORABLE TYLER L. GILL, JUDGE
ACTION NO. 09-CR-00069
OPINION
AFFIRMING
BEFORE: CAPERTON, TAYLOR, AND THOMPSON, JUDGES. TAYLOR, JUDGE: David Bennett brings this pro se appeal from a September 10, 2012, Order of the Todd Circuit Court denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion without an evidentiary hearing. We affirm.
Bennett was convicted by a jury of manufacturing methamphetamine, possession of methamphetamine precursor, possession of drug paraphernalia, and with being a second-degree persistent felony offender. By judgment entered April 7, 2010, the circuit court sentenced Bennett to a total of fifty-five years' imprisonment. Thereafter, on September 22, 2011, the Supreme Court affirmed Bennett's conviction and sentence of imprisonment in Appeal No. 2010-SC-000255.
Bennett then filed the underlying pro se RCr 11.42 motion claiming ineffective assistance of trial counsel and of appellate counsel. By a September 10, 2012, order, the circuit court denied the RCr 11.42 motion without conducting an evidentiary hearing. This appeal follows.
Bennett initially asserts that the circuit court erred by denying his request for "records of evidence from the Commonwealth's Attorneys Office of witnesses that testified before the Grand Jury proceedings" and for "records . . . of the Grand Jury video tapes." Bennett's Brief at 3 - 4. Bennett only sought these records after his conviction and to assist in the filing of his RCr 11.42 motion. An RCr 11.42 motion constitutes a collateral attack upon the judgment of conviction for certain errors that occurred during trial. Tipton v. Commonwealth, 376 S.W.2d 290 (Ky. 1964). It is not available to attack alleged errors of the circuit court that occurred after entry of final judgment, nor is Bennett entitled to post-conviction discovery on matters that arose prior to the trial. See Wagner v. Commonwealth, 247 S.W.3d 540 (Ky. App. 2008). Hence, we decline to review any issues of error relating to entitlement of evidence or tapes from the grand jury proceedings.
Bennett also contends that trial counsel rendered ineffective assistance. Bennett's precise argument is difficult to discern, but it appears Bennett claims that trial counsel failed to adequately investigate and prepare a defense at trial. However, Bennett has failed to prove any prejudice as there is no showing that the result of his trial would have been different absent such errors. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We, thus, reject this contention of error.
Bennett next maintains that appellate counsel rendered ineffective assistance. Bennett alleges that he did not consent to the public advocate's filing of a brief in his direct appeal to the Supreme Court and that appellate counsel failed to adequately investigate his case. Again, Bennett has failed to demonstrate prejudice. See Hollon v. Commonwealth, 334 S.W.3d 431 (Ky. 2010). There was no showing that the direct appeal would have been reversed absent the above alleged errors.
Bennett's remaining contentions as to the appointment of counsel and entitlement to an evidentiary hearing are rendered moot as the RCr 11.42 motion is without merit.
For the foregoing reasons, the Order of the Todd Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: David A. Bennett, Pro Se
Central City, Kentucky
BRIEF APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky