Opinion
NO. 2012-CA-001000-MR
12-21-2012
JAVONNA BUFORD APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Javonna Buford, pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Jeanne Anderson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN R. GRISE, JUDGE
ACTION NO. 10-CR-00132
OPINION
AFFIRMING
BEFORE: COMBS, KELLER, AND LAMBERT, JUDGES. COMBS, JUDGE: Javonna Buford appeals the order of the Warren Circuit Court denying his motion to vacate his conviction pursuant to Kentucky Rule[s] of Criminal Procedure (RCr) 11.42. After our review, we affirm.
In February 2010, Buford sold ecstasy and cocaine to a confidential informant in recorded transactions. The police later found multiple baggies of marijuana and cocaine in Buford's home. As a result, Buford was indicted on six counts of trafficking in a controlled substance and one count of being a persistent felony offender. On August 9, 2010, he pled guilty to two charges of trafficking in a controlled substance in the first degree (second offense). Buford received a sentence of thirty-years' incarceration. On September 29, 2011, Buford filed a motion seeking to have the judgment vacated pursuant to RCr 11.42. The court denied the motion on May 22, 2012. This appeal follows.
Our standard of review of a motion filed under RCr 11.42 is governed by rules set forth by the Supreme Court of the United States. It has prescribed a two-pronged test setting forth the defendant's burden of proof:
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 (1984), adopted in Kentucky by Gall v. Commonwealth, 702 S.W.2d 37, 39-40 (Ky. 1985). Both criteria of deficient performance by counsel and of prejudice to the defendant must be met in order for the test to be satisfied. The Strickland Court emphasized that reviewing courts must assess the effectiveness of counsel in the light of the totality of the evidence presented at trial and the fundamental fairness of the challenged proceeding. Id. at 695-96.
The Supreme Court refined the Strickland test in the context of guilty pleas in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366 (1985), in which it held that "in order to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59.
Buford alleges that his counsel provided ineffective assistance because she failed to file a motion to suppress the recordings of the drug transactions. He claims that the recordings violated the Fourth Amendment because the police did not obtain a warrant. Buford argues that he was essentially the victim of criminal eavesdropping.
The Supreme Court of the United States held many years ago that no warrant is necessary for consenting informants to secretly record drug transactions or conversations. U.S. v. White, 401 U.S. 745, 91 S.Ct. 1122 (1971). This holding has been reiterated by the Supreme Court of Kentucky. Carrier v. Commonwealth, 607 S.W.2d 115 (Ky. 1980). We also note that Kentucky's General Assembly has provided the following definition for the word eavesdrop: "to overhear, record, amplify or transmit any part of a wire or oral communication of others without the consent of at least one (1) party thereto by means of any electronic, mechanical or other device." Kentucky Revised Statute[s] (KRS) 526.010. In this case, the confidential informant had consented to recording her transactions with Buford. Therefore, there were no grounds upon which Buford's trial counsel in good faith could have asked the court to suppress the recordings.
This court has reviewed Buford's guilty plea. The trial court was thorough in its discussion with Buford. Buford acknowledged that he understood the rights that he was waiving by entering a guilty plea. He told the court that he was very satisfied with the representation which his attorney had provided. Buford further voluntarily informed the court that he took full responsibility for his actions. We also note that Buford faced a possible life sentence if he had gone to trial and that his counsel succeeded in negotiating a thirty-year sentence. Therefore, we cannot conclude that the trial court committed error when it denied his motion to vacate the judgment of guilty.
We affirm the order of the Warren Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Javonna Buford, pro se
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Jeanne Anderson
Assistant Attorney General
Frankfort, Kentucky