Shelton v. Com., 94-CA-2104-MR

• Decision Date: 14 June 1996
• Docket Number: No. 94-CA-2104-MR,94-CA-2104-MR
• Citation: 928 S.W.2d 817
• Parties: Roger Dale SHELTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

Page 817

928 S.W.2d 817

Roger Dale SHELTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 94-CA-2104-MR.

Court of Appeals of Kentucky.

June 14, 1996.

Rehearing Denied Aug. 23, 1996.

Discretionary Review

Denied by Supreme Court Sept. 18, 1996.

Roger Dale Shelton, Marion Adjustment Center, Saint Mary, for Appellant.

Chris Gorman, Attorney General, Laura H. Early, Assistant Attorney General, Frankfort, for Appellee.

Before COMBS, JOHNSON and WILHOIT, JJ.

WILHOIT, Judge.

This is an appeal from the order entered by the Daviess Circuit Court denying the appellant's motion to vacate his sentence made pursuant to RCr 11.42.

On November 5, 1991, the appellant was indicted by the Daviess County Grand Jury for the crimes of trafficking in a controlled substance, cocaine, subsequent offense; trafficking in a controlled substance, methamphetamine, subsequent offense; carrying a concealed deadly weapon; and being a persistent felony offender in the first degree. The appellant entered a plea of guilty to the amended charges of trafficking in cocaine and trafficking in methamphetamine, subsequent offense. The charges arose out of his simultaneous possession of cocaine and methamphetamine. The Commonwealth recommended that the appellant be sentenced to two terms of ten years' imprisonment to be served consecutively. The trial court entered a judgment and sentence consistent with the plea and recommendation on August 7, 1992.

The appellant filed a pro se motion to vacate under RCr 11.42 on July 23, 1993, alleging that he was denied the effective assistance of counsel. Particularly, he asserted that his counsel failed to challenge the indictment on double jeopardy grounds, failed to properly investigate the chain of custody of the drugs involved, and failed to raise the defense of entrapment. Following the Commonwealth's response, the appellant moved to disqualify the Commonwealth's attorney and to strike the Commonwealth's response, arguing that the attorney harbored a personal bias against him. Thereafter, the appellant was assigned counsel to assist him in his RCr 11.42 motion. He supplemented the original motion, submitting that his plea was not given voluntarily and knowingly. The trial court denied the appellant's motion without an evidentiary hearing, and this appeal followed.

The appellant reiterates many of the same arguments made at the trial court with the addition of other allegations of error. To the extent his arguments to this court differ from those presented in the circuit court, we will not address them. See White v. Commonwealth, Ky.App., 695 S.W.2d 438 (1985).

In order to be successful in an ineffective assistance of counsel claim, the appellant must establish

(1) that counsel made errors so serious that counsel's performance fell outside the wide range of professionally competent assistance as the counsel was not performing as counsel guaranteed by the Sixth Amendment and (2) that the deficient performance prejudiced the defense by so seriously affecting the process that there is a reasonable probability that the defendant would not have pled guilty, and the outcome would have been different.

Centers v. Commonwealth, Ky.App., 799 S.W.2d 51, 55 (1990), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The appellant contends that his trial counsel's performance "fell outside the wide range of professionally competent assistance" when his counsel failed to raise the double jeopardy issue. He submits that his being charged with both trafficking in cocaine and trafficking in methamphetamine subjected him to double jeopardy in violation of § 13 of the Kentucky Constitution, as both charges arose out of the same transaction. He maintains that his guilty plea was based on his understanding that he was facing two offenses which were punishable separately.

The proscriptions against double jeopardy found in the Fifth Amendment to the United States Constitution and § 13 of the Kentucky Constitution serve two distinct purposes. The first is to protect an accused from being prosecuted for an offense after he has been acquitted or convicted of that offense. The second is to prohibit multiple punishments for the same offense. See Ingram v. Commonwealth, Ky., 801 S.W.2d 321 (1990); Jordan v. Commonwealth, Ky., 703 S.W.2d 870 (1985). It is this latter aspect of double jeopardy which concerns us, and more specifically, when a single act or transaction constitutes more than one punishable offense. In recent years, this aspect of the law of double jeopardy, insofar as § 13 of our constitution is involved, has been in a state of flux. For this reason, a rather lengthy analysis of case law is required to resolve this case.

The watershed case addressing this aspect of double jeopardy for federal purposes is Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Adhering to the traditional common law rule, the Blockburger court defined the rule in this oft-cited passage:

The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.

Blockburger, 284 U.S. at 304, 52 S.Ct. at 182 (citation omitted). The prohibition against double jeopardy found in Kentucky's constitution had traditionally been interpreted in the same way as was done in Blockburger. See Williams v. Commonwealth, 78 Ky. 93 (1879); Newton v. Commonwealth, 198 Ky. 707, 249 S.W. 1017 (1923); Burch v. Commonwealth, 240 Ky. 519, 42 S.W.2d 714 (1931). The Burch court held that § 13 of our constitution was "merely declaratory of the common law rule." Burch, 42 S.W.2d at 715; see also Rogers v. Commonwealth, 257 Ky. 495, 78 S.W.2d 340 (1935).

Perhaps the clearest summary of the law as it was formerly thought to be under Kentucky's constitution is found in Newton v. Commonwealth:

Among the many rules that have been formulated by this court and others to assist in determining whether or not one or more prosecutions may be based upon a single act or transaction, one often approved by this court is that the Commonwealth may not split a single act or transaction into two or more separate offenses, but where the single criminal act or transaction is sufficient of itself to prove more than one offense, an election must be made and a conviction or acquittal upon one charge is a bar to another prosecution based solely upon the same act or transaction.

But this rule is not applicable where a single act is common to two offenses, but each contains additional elements not common to the other.

Newton, 249 S.W. at 1017-18 (emphasis added) (citation omitted). With respect to a successive prosecution for a separate offense arising out of the same conduct, however, the court reiterated the rule that when the facts necessary to convict on the second prosecution would necessarily have convicted on the first, a final judgment on the first prosecution bars the second. Id.

In 1975, KRS 505.020 became effective. That statute provides that when a single course of conduct establishes more than one offense, a defendant may be prosecuted for each offense unless one offense is included in the other. It enumerates four instances in which an offense is considered to be included in a charged offense. One of these instances occurs when an offense "is established by proof of the same or less than all the facts required to establish the commission of the offense charged." KRS 505.020(2)(a).

In 1983, the Kentucky Supreme Court was confronted with the multiple punishment double jeopardy issue in Hamilton v. Commonwealth, Ky., 659 S.W.2d 201 (1983). In that case, the defendant was charged with both incest and rape for having sexual relations with his 10-year-old daughter. The statutory facts necessary to establish the crime of rape under KRS 510.040 were (1) sexual intercourse, (2) with an individual under the age of twelve. The statutory facts necessary to establish incest under KRS 530.020 were (1) sexual intercourse, (2) with a member of one's family known by the defendant to be such.

The court, purporting to rely upon the Blockburger decision, upheld the defendant's conviction for rape but reversed his conviction for incest. It concluded that it could not "merely look at the statute standing alone. The [Blockburger ] test must be applied subjectively." Hamilton, 659 S.W.2d at 202. In making its determination, the court stated as follows:

When we view the present case, we find that the proof utilized to convict the appellant of rape was that he had sexual intercourse with a ten-year-old child, who was, in actuality, his daughter. The only additional fact--the relationship of father/daughter--was required in the incest charge. Thus, in a sense, the additional fact was not present in "each" case, as required by Blockburger, but in only one case.

Id. This interpretation of Blockburger seems to require that each charge be based upon different "actual" facts as opposed to different statutorily required facts, since it is plain that sexual intercourse with a child under twelve and incest each require proof of a statutory fact not required by the other. Nowhere did this opinion mention § 13 of our constitution, relying instead on federal cases dealing with successive prosecutions.

The next year in Polk v. Commonwealth, Ky., 679 S.W.2d 231 (1984), the court again addressed the double jeopardy issue. This case involved a single course of conduct by the defendant resulting in her conviction of first-degree assault, requiring proof that she intentionally caused (1) by means of a deadly weapon or dangerous instrument, (2) the serious physical injury of another, and of first-degree burglary which required proof of (1) the burglary of a dwelling, (2) while armed with explosives or a deadly weapon,...