Opinion
NO. 2013-CA-002067-MR
03-27-2015
CHRISTOPHER HARWELL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Christopher Harwell, Pro Se Pineville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Jeanne Anderson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE FREDERIC COWAN, JUDGE
ACTION NO. 10-CR-003972
OPINION
AFFIRMING
BEFORE: D. LAMBERT, J. LAMBERT, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Christopher Harwell brings this pro se appeal from a November 4, 2013, order of the Jefferson Circuit Court denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion without an evidentiary hearing. We affirm.
Harwell was indicted by a Jefferson County Grand Jury on December 8, 2010, upon the following: Count One - trafficking in a controlled substance in the first degree (Schedule I - heroin), Count Two - trafficking in a controlled substance in the first degree (Schedule II - cocaine), Count Three - possession of drug paraphernalia, and Count Four - possession of a controlled substance (Schedule I - hallucinogen marijuana). Harwell was represented by retained counsel and subsequently entered into a plea agreement with the Commonwealth. The plea agreement reflected that Count Two of the indictment, trafficking in a controlled substance in the first degree (Schedule II - cocaine), was amended to trafficking in a controlled substance in the first degree (Schedule I - heroin); the other three counts were not amended. Harwell entered a guilty plea to the amended charges. By final judgment of conviction and sentence entered August 13, 2012, Harwell was sentenced to a total of eighteen-years' imprisonment.
After laboratory analysis, the substance originally believed to be cocaine was confirmed to be heroin. The indictment was amended to accurately reflect that the substance was heroin and not cocaine.
Harwell subsequently filed an RCr 11.42 motion alleging ineffective assistance of trial counsel. By order entered November 4, 2013, the circuit court denied Harwell's RCr 11.42 motion without an evidentiary hearing. This appeal follows.
Harwell contends the circuit court erred by denying his RCr 11.42 motion without an evidentiary hearing. To prevail upon a claim of ineffective assistance of trial counsel, appellant must demonstrate that counsel's performance was deficient and that such deficiency resulted in prejudicial error. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To prove prejudicial error, appellant must demonstrate that but for trial counsel's deficient performance there exists a reasonable probability that he would not have entered a guilty plea. Id. And, an evidentiary hearing is only required where movant's allegations cannot be resolved upon the face of the record. Fraser v. Com., 59 S.W.3d 448 (Ky. 2001).
Specifically, Harwell argues that trial counsel was ineffective for advising him to accept the plea agreement with the Commonwealth and plead guilty. Harwell maintains that trial counsel should have investigated "other strong defenses to fight this case." Harwell's Brief at 5. Harwell asserts that trial counsel should have explored possible defense strategies instead of recommending that Harwell enter a guilty plea. Harwell specifically complains that trial counsel should have secured "an independent tester to test the alleged drugs" discovered during the search of his residence. Harwell's Brief at 5.
In his argument, Harwell fails to specify how trial counsel's performance was deficient for failing to secure independent drug testing or how such error would have affected the outcome of his proceedings. In the Commonwealth's Offer on Guilty Plea, it was clearly set forth that the indicted offense of trafficking in a controlled substance (cocaine) was amended to trafficking in a controlled substance (heroin). And, Harwell plainly signed this document before entering his guilty plea. Hence, we do not believe Harwell has demonstrated that trial counsel rendered deficient performance.
Harwell next maintains that trial counsel erred by failing to challenge the Commonwealth's use of "inaccurate evidence to gain an indictment against [him]." Harwell's Brief at 6. Essentially, Harwell contends that the Commonwealth presented "false" testimony to the grand jury as Count Two of the indictment averred that he was trafficking in heroin. The record plainly reveals that the indictment was amended after laboratory testing identified the substance as heroin rather than cocaine as charged in Count Two of the indictment. Thus, we are unable to conclude that trial counsel rendered ineffective assistance in this regard.
Harwell further asserts that trial counsel was ineffective for advising him to enter a guilty plea to two counts of trafficking in a controlled substance due to violation of the constitutional prohibition against double jeopardy. By amending Count Two of the indictment, Harwell asserts that he was indicted upon two counts of first-degree trafficking in heroin and that both counts arose from "a single seizure of evidence [and] should not be split up to make two different felony offenses and two different conviction[s]." Harwell's Brief at 7. Under the terms of his guilty plea, Harwell points out that he was sentenced to ten years and to eight years upon each respective charge of trafficking in heroin and that these sentences were ordered to run consecutively for a total sentence of eighteen-year's imprisonment. Harwell claims that if he had known that double jeopardy barred one of the two counts of trafficking, he would not have entered the guilty plea but would have insisted upon a jury trial. We believe Harwell's claim is refuted upon the face of the record.
In the Commonwealth's Offer on Plea of Guilty, the underlying facts are set forth as follows:
In Jeff. Co., KY, on or about the 8th day of December, 2010, Defendant [Christopher Harwell] sold heroin to another person and also possessed additional heroin (approximately 7 grams) with the intent to sell. Defendant possessed during paraphernalia and marijuana.Therefore, the two counts of trafficking were based upon: (1) the actual sale of heroin to a third party and, (2) the possession of seven grams of heroin with the intent to sell. Under these facts, we believe Harwell may be properly charged with two counts of trafficking in a controlled substance (heroin) without offending double jeopardy. Double jeopardy is not a bar to the multiple charges of trafficking in heroin because Harwell possessed and sold two distinct quantities of heroin - the heroin he sold to a third party and the heroin he possessed with intent to sell. See Williams v. Com., 336 S.W.3d 42 (Ky. 2011). For this reason, we cannot say that trial counsel rendered deficient performance by advising him to accept the plea agreement and enter the guilty plea.
In sum, we believe that Harwell's allegations of error were refuted upon the face of the record and that the circuit court properly denied Harwell's RCr 11.42 motion without an evidentiary hearing. See Fraser, 59 S.W.3d 448.
For the foregoing reasons, the order of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Christopher Harwell, Pro Se
Pineville, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Jeanne Anderson
Assistant Attorney General
Frankfort, Kentucky