Ivey v. Com.

• Decision Date: 02 September 1983
• Citation: 655 S.W.2d 506
• Parties: Greg Allen IVEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

Page 506

655 S.W.2d 506

Greg Allen IVEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Sept. 2, 1983.

Jack E. Farley, Public Advocate, Randall L. Wheeler, Asst. Public Advocate, Frankfort, for appellant.

Steven L. Beshear, Atty. Gen., Linda Carnes Wimberly, Asst. Atty. Gen., Frankfort, for appellee.

Before HOWARD, HOWERTON and PAXTON, JJ.

PAXTON, Judge.

Greg Allen Ivey appeals from an order of the Fayette Circuit Court denying his RCr 11.42 motion to vacate judgment. The motion is based on Ivey's contention that he did not receive effective assistance of counsel at trial and on appeal.

Ivey was arrested on October 31, 1974, on charges of attempted rape, assault and battery, burglary, and storehouse breaking. Being only sixteen years of age at the time of his arrest, he was arraigned in Fayette Juvenile Court. On November 10, 1974, Ivey escaped from the Fayette County Jail and went to Massachusetts, where he was arrested and convicted on criminal charges committed in that Commonwealth. Kentucky authorities placed a detainer against him, and on April 4, 1975, he filed a request for disposition of charges and a waiver of Ivey was paroled in Massachusetts on March 3, 1976, and brought back to Fayette County where the juvenile court declined jurisdiction because he had attained eighteen years of age on November 18, 1975, and was thus no longer a minor under Kentucky law. He was indicted on April 19, 1976, by the Fayette County grand jury on charges of burglary, detaining a female, malicious striking and wounding, and armed robbery. Ivey retained an able, experienced, trial attorney who moved the trial court to dismiss all charges contained in the indictment on the grounds that Ivey's

extradition with the Fayette Commonwealth Attorney.

constitutional rights as contained in the U.S. and Kentucky Constitution to 'a speedy trial' have been violated and further, since the charges were alleged to have been committed at the age of sixteen (16) years or 'a juvenile' and the proper procedure was not followed by the Fayette County Juvenile Court; that this Court has no jurisdiction over the alleged charge (sic) and that they should be dismissed or remanded to the Juvenile Court for further procedure.

The motion was denied, and the case went to a jury trial where Ivey was found guilty and sentenced to 20 years imprisonment.

Ivey's conviction was affirmed in Ivey v. Commonwealth, Ky.App., 550 S.W.2d 185 (1977) (Ivey I ). In April, 1978, Ivey, pro se, filed a RCr 11.42 motion and supplemental motion to vacate his judgment of conviction on the grounds that: (1) the Fayette Circuit Court was without jurisdiction to try him because he did not have a hearing in juvenile court as required by KRS 208.170, and (2) the Kentucky authorities failed to comply with KRS 440.450, Kentucky's enactment of the Interstate Agreement on Detainers. The trial court denied the motion, holding that

The question of jurisdiction has been considered by the Court of Appeals, and it was decided adversely to the movant, Ivey; and consequently, the issue cannot now be raised under RCr 11.42. The argument raised by the movant regarding the Interstate Agreement on Detainers could have been raised in his appeal, and we do not believe that the movant is entitled to raise it now under RCr 11.42.

The trial court also denied Ivey's motion for appointment of counsel.

Ivey next filed a CR 60.02 motion asking the trial court to vacate the order denying his RCr 11.42 motion and his request for appointment of counsel. This motion was summarily denied by the trial court. The Court of Appeals reversed, holding that Ivey was entitled to counsel and that his appointed counsel should be permitted to file supplemental pleadings. The Kentucky Supreme Court took discretionary review and affirmed the Court of Appeals ruling. Ivey v. Commonwealth, Ky., 599 S.W.2d 456 (1980) (Ivey II ).

On remand, counsel was appointed, and he filed a supplemental pleading which included an allegation that Ivey "was denied effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendment to the United States Constitution and Section 11 of the Kentucky Constitution." An evidentiary hearing was held on the motion on June 25, 1981, and by order entered July 2, 1982, the motion was denied. This appeal ensued.

Ivey argues he was denied effective assistance of counsel because his trial lawyer failed to:

1. Move for dismissal for failure of the Fayette authorities to comply with the juvenile waiver requirements of KRS 208.170.

2. Move for dismissal for failure of the Fayette authorities to comply with the requirements of KRS 440.450, the Interstate Agreement on Detainers [IAD].

3. Raise the juvenile waiver and IAD issues on the direct appeal.

4. Present a defense and in effect plead him guilty before the jury in closing argument.

EFFECTIVE ASSISTANCE OF COUNSEL

Section 11 of the Kentucky Constitution provides that: "In all criminal Counsel was retained in this case, and there is authority for the proposition that the "farce and mockery of justice" test should apply to retained counsel. King v. Commonwealth, Ky., 387 S.W.2d 582 (1965). The rationale for permitting a less stringent test in retained counsel cases is that the state should only be held responsible for denying an accused the right to have effective assistance of counsel. If he selects and pays for his own attorney, that attorney's ineffectiveness is imputed to the accused, unless counsel's performance is so outlandish that an officer of the state, such as the judge or some other officer of the court, should notice. Brooks v. Commonwealth, Ky., 461 S.W.2d 547 (1970); see King, supra, at 585, citing United States ex rel. Darcy v. Handy, Warden et al., 203 F.2d 407 (3rd Cir.1953). Our Supreme Court, in replacing the "farce and mockery of justice" test with the "effective assistance" test, expressly overruled: "[a]ny inconsistent holdings such as those expressed in Wahl v. Commonwealth, Ky., 396 S.W.2d 774 (1965), and Vaughan v. Commonwealth, Ky., 505 S.W.2d 768 (1974)." Because Henderson, Wahl, and Vaughan all involved appointed counsel, Henderson cannot be considered as direct authority for eliminating the "farce and mockery" test in retained counsel cases. Nevertheless, we believe the omission in Henderson of any reference to a distinction between the two types of cases is suggestive, and we believe the better rule is that the "effective assistance" test of Henderson should be applied to appointed and retained cases alike. Accord Cuyler v. Sullivan, 446 U.S. 335, 344-45, 100 S.Ct. 1708, 1716-17, 64 L.Ed.2d 333 (1980). Whether an attorney fulfills this test is an issue of fact to be determined by the trial court, and its findings will not be set aside unless they are clearly erroneous. Cole v. Commonwealth, Ky., 441 S.W.2d 160 (1969); 21A Am.Jur.2d Criminal Law Sec. 752 (1981).

                prosecutions the accused has the right to be heard by himself and counsel."   It was held early on by our highest Court that this right to counsel means more than mere presence of an attorney at trial.  McDaniel v. Commonwealth, 181 Ky. 766, 205 S.W. 915 (1918) (failure of trial court to grant continuance held error where trial counsel needed additional time to prepare).  The test for whether an attorney complies with section 11 has now evolved into whether he is reasonably likely to render and is rendering reasonably effective assistance to the accused.  Henderson v. Commonwealth, Ky., 636 S.W.2d 648 (1982).  The defense attorney is required "to perform at least as well as a lawyer with ordinary training and skill in criminal law, utilizing that degree of training to conscientiously protect his client's interests."   Id., at 650
                

Counsel for Ivey was reasonably likely to render effective assistance. There is uncontradicted evidence in the record from the RCr 11.42 hearing of June 25, 1982, that he was an experienced criminal defense attorney who had been involved in a great number of criminal trials. The issue before this Court, then, is whether counsel rendered reasonably effective assistance, the second requirement of the Henderson test.

JUVENILE WAIVER

At the time juvenile charges were filed against Ivey, KRS 208.020 provided:

(1) The juvenile session of the county court of each county shall have exclusive jurisdiction in proceedings concerning any child, living, or found, within the county and has not reached his eighteenth birthday:

(a) Who has committed a public offense ....

KRS 208.170, in effect at the time, provided that in order for the juvenile court to divest itself of jurisdiction and the circuit court to acquire it, the juvenile court must hold a hearing and enter an appropriate waiver order. It has been held that, if the original charges were filed in juvenile court, it is necessary to hold the waiver hearing, even if the accused is over eighteen when the indictment is returned. Johnson v. Commonwealth, Ky., 606 S.W.2d 622 (1980).

Ivey was under eighteen years of age when he committed the offense, when juvenile charges were brought against him, and when he was arraigned in juvenile court. He became eighteen years of age on November 18, 1975, and was thus no longer a juvenile when he was indicted on April 19, 1976. A waiver hearing was never held in juvenile court.

After indictment, Ivey's lawyer moved for dismissal of the charges on the ground, inter alia, that "the proper procedure was not followed by the Fayette County Juvenile Court; that this [circuit] Court has no jurisdiction over the alleged charge (sic) and that they should be dismissed or remanded to the Juvenile Court for further procedure." The motion was denied. On appeal, counsel argued that the circuit court improperly obtained jurisdiction because the Commonwealth had intentionally delayed bringing Ivey to trial in order to deprive him of the opportunity to be tried as a juvenile. This argument apparently was...