Opinion
NO. 2013-CA-000483-MR
05-30-2014
MELVIN DEWAYNE WHITNEY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Melvin Dewayne Whitney, pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Nate Kolb Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE STEVE ALAN WILSON, JUDGE
ACTION NO. 11-CR-00231
OPINION
AFFIRMING
BEFORE: JONES, STUMBO AND THOMPSON, JUDGES. STUMBO, JUDGE: Melvin Dewayne Whitney appeals from a Warren Circuit Court order denying his motions made pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42.
Whitney was charged with possession of a controlled substance in the first degree, second offense; possession of marijuana; possession of drug paraphernalia; and with being a persistent felony offender in the first degree.
On September 6, 2011, Whitney entered a plea of guilty to one count of possession of a controlled substance in the first degree. Under the terms of his plea agreement, the Commonwealth agreed to dismiss the remaining charges, and recommended a sentence of one year, probated for five years, on the condition that Whitney enter a long-term drug treatment program, and that he remain in jail until entering the program. The one-year probated sentence was to run consecutively to an eight-year sentence Whitney was serving in another case.
The trial court initially scheduled final sentencing for September 26, 2011, but then changed the date to September 15 because the Division of Probation and Parole would not begin seeking a vacancy in a long-term treatment program for Whitney until after he had been sentenced. Because of the change in the dates, Whitney's counsel was not able to appear at the final sentencing. At his request, another attorney agreed to stand in. The trial court obtained Whitney's consent to the substitution, and then proceeded to sentence Whitney in accordance with the terms of the plea agreement.
On August 27, 2012, the trial court revoked Whitney's probation for absconding from probationary supervision and sentenced him to serve one year. Whitney filed two identical motions to vacate judgment, on November 28, 2012, and January 10, 2013. He claimed that he received ineffective assistance of counsel because he was allowed to plead guilty to a felony when the facts of his case would only support a misdemeanor conviction. The trial court denied the motions and this appeal followed.
When a defendant argues that his plea was rendered involuntary due to ineffective assistance of counsel, the trial court is required
to "consider the totality of the circumstances surrounding the guilty plea and juxtapose the presumption of voluntariness inherent in a proper plea colloquy with a Strickland v. Washington [466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),] inquiry into the performance of counsel." To support a defendant's assertion that he was unable to intelligently weigh his legal alternatives in deciding to plead guilty because of ineffective assistance of counsel, he must demonstrate the following:Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky. App. 2004) (internal citations and footnotes omitted).
(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.
In his motions before the trial court, Whitney claimed that he received ineffective assistance of counsel because his attorney allowed him to plead guilty to a felony charge, when the facts of his case would only have supported a misdemeanor charge. Specifically, he contends that because he was found to possess only .062 grams of cocaine, he did not violate Kentucky Revised Statutes (KRS) 218A.1412, which prohibits a person from knowingly and unlawfully trafficking in four grams, or more, of cocaine. But Whitney was never charged with trafficking in cocaine, but with possession of a controlled substance in the first degree under KRS 218A.1415, a class D felony. KRS 218A.1415(2). A person is guilty of possession of a controlled substance "when he or she knowingly and unlawfully possesses . . . [a] controlled substance that is classified in Schedules I or II and is a narcotic drug[.]" KRS 218A.1415(1)(a). Cocaine is classified as a Schedule II controlled substance. KRS 218A.070(1)(d). The statute does not specify any minimum amount that must be possessed in order to find guilt. "Possession of any amount—no matter how small—of a controlled substance suffices for a first-degree possession of controlled substances conviction so long as the person has knowingly and unlawfully possessed the substance." Finn v. Commonwealth, 313 S.W.3d 89, 92 (Ky. 2010). Thus, Whitney's attorney was not professionally incompetent in allowing him to plead guilty to a felony charge, and the trial court correctly ruled as a matter of law that KRS 218A.1412 had no application to Whitney's case.
On appeal, Whitney also argues that his counsel was ineffective for failing to explain to him that he was pleading guilty to a possession charge that was going to run consecutively with the eight-year sentence he was already serving; that his rights were violated when his co-defendant's attorney represented him at the sentencing hearing; that he was misled into believing that his guilty plea would not result in his probation being violated; and that the amount of narcotics found was misquoted.
None of these arguments were raised in Whitney's RCr 11.42 motions before the trial court. After the trial court entered its final order denying the motions, Whitney filed a handwritten document entitled "Reasons for appeal" in which he raised for the first time his argument that the court erred in allowing his co-defendant's attorney to represent him at sentencing. The trial court did not address the claims in the letter, and Whitney proceeded with his appeal without seeking a ruling. Even if the claim regarding the attorney substitution had been preserved for our review, however, it is without merit, because the record shows that the attorney played no significant role in the sentencing proceeding, and Whitney voluntarily and expressly waived any objection to the representation.
As to Whitney's remaining claims, "[t]he Court of Appeals is without authority to review issues not raised in or decided by the trial court." Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989); see also Shelton v. Commonwealth, 928 S.W.2d 817, 818 (Ky. App. 1996). "[E]rrors to be considered for appellate review must be precisely preserved and identified in the lower court." Skaggs v. Assad, by and through Assad, 712 S.W.2d 947, 950 (Ky. 1986). An appellant "will not be permitted to feed one can of worms to the trial judge and another to the appellate court." Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky.1976) (overruled on other grounds by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010)).
For the foregoing reasons, the Warren Circuit Court order denying Whitney's RCr 11.42 motions is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Melvin Dewayne Whitney, pro se
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Nate Kolb
Assistant Attorney General
Frankfort, Kentucky