Opinion
NO. 2012-CA-000296-MR
02-22-2013
DONNIE MCNEAR APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Melinda Brooke Buchanan Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE RODNEY BURRESS, JUDGE
ACTION NO. 10-CR-00252
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; CAPERTON AND NICKELL, JUDGES. ACREE, CHIEF JUDGE: Appellant, Donnie McNear, appeals from an order denying his motion for post-conviction relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 following an evidentiary hearing. He argues that trial counsel was ineffective for failing to investigate the facts surrounding the victim's injury prior to advising him to plead guilty. We affirm.
McNear and Don Hutchings shared a residence in Bullitt County, Kentucky. On November 24, 2009, following a disagreement, McNear choked Hutchings and threw him into a chair or table, which gave way causing Hutchings to fall onto the kitchen floor. Hutchings's caretaker, Betty Tincher, and her granddaughter, Markie Smith, witnessed the incident. Hutchings, Tincher, and Smith testified before the Bullitt County Grand Jury. On June 29, 2010, McNear was indicted for second-degree assault and for being a second-degree persistent felony offender (PFO II). The basis for the second-degree assault charge was that McNear intentionally caused serious physical injury to Hutchings during the November 24, 2009 altercation. Kentucky Revised Statutes (KRS) 508.020(1)(a).
McNear and the Commonwealth negotiated an agreement under which the Commonwealth agreed to dismiss the PFO II charge if McNear pleaded guilty to second-degree assault. The Bullitt Circuit Court conducted a plea colloquy and entered judgment upon McNear's guilty plea. In accordance with the plea agreement, the circuit court sentenced McNear to six years imprisonment.
Subsequently, McNear filed a motion for post-conviction relief pursuant to RCr 11.42 alleging that his trial counsel was ineffective for failing to investigate the facts surrounding the victim's injury before advising him to plead guilty. The trial court conducted an evidentiary hearing at which trial counsel testified. Following the hearing, the trial court denied the motion in an order entered on December 19, 2011. This appeal followed.
McNear argues that trial counsel was ineffective for failing to investigate the facts surrounding the victim's injuries prior to advising him to plead guilty. McNear further alleges that the extent of the victim's injuries would only support a charge of fourth-degree assault, and that he would not have pleaded guilty had he been accurately informed.
To prevail on a claim of ineffective assistance of counsel following a guilty plea, the defendant must demonstrate: (1) that trial counsel's performance was deficient in that it fell outside the 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 pleaded guilty, but would have insisted on going to trial." Sparks v. Commonwealth, 721 S.W.2d 726, 727-28 (Ky. App. 1986). When an evidentiary hearing is held in an RCr 11.42 proceeding, RCr 11.42(6) requires the trial court to make findings on the material issues of fact, which we review under a clearly erroneous standard. Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky. 2001) overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009); Kentucky Rules of Civil Procedure (CR) 52.01.
Trial counsel "has a duty to make reasonable investigation or to make a reasonable decision that makes particular investigation unnecessary under all the circumstances[.]" Haight, 41 S.W.3d at 446. "A reasonable investigation is not an investigation that the best criminal defense lawyer in the world, blessed not only with unlimited time and resources, but also with the benefit of hindsight, would conduct." Id. Upon review, appellate courts apply "a heavy measure of deference to the judgment of counsel." Id.
During the evidentiary hearing, trial counsel testified that she believed that Hutchings's grand-jury testimony that he suffered continuing pain and headaches and that he had to use a walker after the incident, taken alone, was sufficient proof of serious physical injury as required by KRS 508.020(1)(a). She further stated that the testimony of the two eyewitnesses was consistent with Hutchings's account, and supported a finding of serious physical injury because the witnesses claimed that Hutchings lost the use of his left arm following the altercation. Trial counsel also considered that the Commonwealth could have made the alternative argument that McNear caused physical injury by means of a dangerous instrumentality under KRS 508.020(1)(b) when McNear slammed Hutchings so forcefully into a chair that it broke causing Hutchings to hit his head against the floor. Trial counsel testified that McNear did not request that she obtain Hutchings's medical records prior to the incident. She stated that she discussed with McNear the potential impact that an elderly victim would have upon a jury. The trial court found that McNear's testimony was not credible because he admitted to lying to the court during his plea colloquy. Additionally, McNear was facing a possible sentence of ten years imprisonment on the assault charge, enhanced to twenty years by the PFO charge, had the case gone to trial.
Under the totality of the circumstances, we are convinced that trial counsel conducted a reasonable investigation into the facts surrounding the victim's injuries. The seriousness of injuries is a question of fact for the jury. Rowe v. Commonwealth, 50 S.W.3d 216, 220-21 (Ky. 2001). Based upon the testimony of the victim and the eyewitnesses, there was sufficient evidence to support a charge of second-degree assault. The decision to recommend a guilty plea was reasonable. Further, there is no indication that trial counsel failed to undertake any action requested by McNear.
Accordingly, the December 19, 2011 order of the Bullitt Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Melinda Brooke Buchanan
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky