Opinion
NO. 2012-CA-000409-MR
05-24-2013
CHARLES E. SMITH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Charles E. Smith, pro se St. Mary, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Jeffrey A. Cross Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM LINCOLN CIRCUIT COURT
HONORABLE JEFFREY T. BURDETTE, JUDGE
ACTION NO. 08-CR-00062-MR
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; LAMBERT AND STUMBO, JUDGES. STUMBO, JUDGE: The appellant, Charles Smith, appeals a decision of the Lincoln County Circuit Court denying his request for a hearing to determine if he received ineffective assistance of counsel and denying relief under Kentucky Rule of Criminal Procedure (RCr) 11.42 and Kentucky Rule of Civil Procedure (CR) 60.02(e). The circuit court determined that Smith was not denied his right to effective assistance of counsel and we affirm.
Although Smith cites to CR 60.02, and presented arguments pursuant to 60.02(e) below, his brief on appeal does not indicate which subsection of the rule entitles him to relief and he presents no arguments related to the rule. Thus, we focus on his RCr 11.42 motion.
In 2008, Smith was indicted on two counts of murder, two counts of attempted murder, two counts of robbery in the first degree, and one count of burglary in the first degree. Due to the nature of the offenses, the Commonwealth filed notice that it would seek the death penalty. Smith maintained that he was not actively involved in the commission of the crimes, but he had knowledge the principal actors intended to commit the crime and he knowingly gave them a ride to aid them in their commission.
Smith's attorneys were able to reach a plea deal that reduced the two counts of murder to two counts of facilitation to commit murder, with a recommendation of five years for each count; amended the two counts of robbery in the first degree to two counts of complicity to commit robbery in the first degree, with a recommendation of 20 years for each count; amended one count of burglary in the first degree to one count of complicity to commit burglary in the first degree, with a recommendation of 20 years; and dismissed the two counts of attempted murder. All of the recommended sentences would run concurrently for a total of 20 years, and would all run concurrently with a sentence he was serving from Madison County. In other words, the deal reduced the possibility of the death penalty to a twenty-year sentence to be served concurrently with a sentence Smith was already serving.
During the plea process and hearings, Smith was represented by counsel, confirmed that he acted voluntarily, and stated he was satisfied with his counsel's performance. The court accepted the plea and acknowledged that Smith was represented by competent counsel.
On August 22, 2011, Smith filed a pro se motion claiming ineffective assistance of counsel. Smith's motion set forth several grounds for complaint, but on appeal Smith relies on his counsel's failure to educate him as to the possibility of a lesser included offense instruction. In January 2012, the circuit court denied his motion and request for an evidentiary hearing. On appeal, Smith avers that had he known he would have been entitled to instructions on lesser included offenses, he would have proceeded to trial and not accepted the plea.
Our review of the circuit court's decision denying Smith's request for an evidentiary hearing pursuant to RCr 11.42, "is limited to whether the motion 'on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction.'" Sparks v. Commonwealth, 721 S.W.2d 726, 727 (Ky. App. 1986) (quoting Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967)). The conviction is valid if it represents a voluntary and intelligent choice among the available alternatives. Sparks, 721 S.W.2d at 727.
A showing that counsel's assistance was ineffective in enabling a defendant to intelligently weigh his legal alternatives in deciding to plead guilty has twoId. at 727-28.
components: (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 pleaded guilty, but would have insisted on going to trial.
Turning directly to the prejudice prong, it becomes clear Smith did not meet his burden of establishing that, but for his attorney's advice, he would not have accepted the plea. Smith indicates that he was not informed of the lesser included offense instructions he would have been entitled to at trial. However, Smith fails to present any argument on appeal as to what instructions would have been provided to the jury. Furthermore, as pointed out by the circuit court, Smith admitted in his motion that he gave his codefendants a ride knowing they were going to commit burglary.
On the face of the motion and the record, the court was able to properly determine that Smith did not establish the requisite elements for ineffective assistance. Moreover, in entering his plea, Smith indicated that he understood the charges and was satisfied with his attorney. We find it highly unlikely, given Smith's admitted involvement in the crimes both during the acceptance of the plea and in prior motions to the circuit court, that Smith would have gone to trial in this case.
Smith's failure to establish prejudice was apparent from the record and no hearing was required. Therefore, we affirm.
ALL CONCUR. BRIEF FOR APPELLANT: Charles E. Smith, pro se
St. Mary, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Jeffrey A. Cross
Assistant Attorney General
Frankfort, Kentucky