Smith v. Commonwealth, No. 2007-CA-000186-MR (Ky. App. 5/9/2008), 2007-CA-000186-MR.
| Decision Date | 09 May 2008 |
| Docket Number | No. 2007-CA-000186-MR.,2007-CA-000186-MR. |
| Parties | George Glen SMITH, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | Kentucky Court of Appeals |
Appeal from Graves Circuit Court, Honorable Timothy C. Stark, Judge, Action Nos. 01-CR-00044 and 01-CR-00124.
George Glen Smith, Pro Se, Sandy Hook, Kentucky, Briefs for Appellant.
Gregory D. Stumbo, Attorney General of Kentucky, Louis F. Mathias, Jr., Assistant Attorney General, Frankfort, Kentucky, Brief for Appellee.
Before: NICKELL, THOMPSON, and VANMETER, Judges.
George Glen Smith appeals from an order of the Graves Circuit Court denying his motion for postconviction relief pursuant to RCr1 11.42. For the reasons stated herein, we affirm.
On March 31, 2000, Denise Beasley and her young daughter were sitting on their living room couch when gun shots were fired through the screen of an open window, striking Beasley four times in the arms and chest. Smith was indicted by a Graves County grand jury for criminal attempt to commit murder and first-degree wanton endangerment. Following a jury trial, Smith was found guilty of both charges and sentenced to twenty-five years' imprisonment. The Kentucky Supreme Court affirmed Smith's conviction on direct appeal.2
Subsequently, Smith filed a motion pursuant to RCr 11.42 to set aside his conviction on the basis that his trial counsel failed to notify him of a favorable plea offer by the Commonwealth. More specifically, Smith alleged that the Commonwealth offered a three-year sentence in exchange for a guilty plea, but that his counsel never communicated this offer to him. According to Smith, he first learned of the offer as he was preparing his case for appeal, when he viewed a recording of his trial and heard his counsel and the prosecutor mention the three-year plea offer during a bench conference. Despite Smith's specific allegation, the trial court denied his motion without conducting an evidentiary hearing. On appeal, this court reversed the trial court after concluding that Smith was entitled to an evidentiary hearing because his claim could not be refuted by the record.3
On remand, following an evidentiary hearing, the trial court again denied Smith's motion and supplemental motion. Specifically, the trial court found that Smith's trial counsel never received a plea offer from the Commonwealth other than a ten-year sentence which she communicated to Smith and he rejected. This appeal follows.
Smith first contends that the trial court erred when it found that his counsel never received the three-year plea offer. We disagree.
On appellate review of a trial court's findings of fact, we are obligated to defer to the lower court's factual findings and determinations regarding the credibility of witnesses. Commonwealth v. Bussell, 226 S.W.3d 96, 99 (Ky. 2007). These findings and determinations are conclusive for appellate purposes unless they are clearly erroneous. Id. Findings of fact which are supported by substantial evidence are not clearly erroneous. Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky.App. 2004). Substantial evidence means evidence of substance and relevance which is sufficient to induce conviction in the minds of reasonable people. James v. Sevre-Duszynska, 173 S.W.3d 250, 256 (Ky.App. 2005).
During the evidentiary hearing, Smith's trial counsel testified that she never received a three-year plea offer from the Commonwealth. She recalled the bench conference during which the three-year plea was mentioned, but she testified that she must have learned of the offer from Smith, who was represented by a series of three other attorneys prior to trial counsel's representation of him.
Upon taking the stand, Smith testified that the only plea offer he received was the ten-year offer on the day of trial. He further testified that he declined this offer on the advice of counsel due to the circumstantial nature of the case. He asserted that had he been notified of the three-year offer, he would have accepted it based on his experience with the criminal justice system.
According to the prosecutor, the three-year plea was offered to Smith early in the case, before the Commonwealth's case strengthened with the addition of a new witness and, apparently, before Smith's trial counsel took over the case in or about August 2001.
The trial court entered the following findings:
From the proof before it, the Court can conclude that the Defendant's statement that he was only offered ten (10) years on the date of the trial is controverted by both by [sic] what Mrs. DeRenard [Smith's trial counsel] and Mr. Hargrove [Commonwealth's Attorney] advised the Court. That cast a doubt over the remainder of the Defendant's testimony. Next, although Ms. DeRenard, [sic] cannot state from her own recollection that the Defendant advised her of the existence of the three (3) year offer since the Commonwealth never made that offer to her, but she knew of it to discuss it before the bench on the day of the trial, the only place she could have been advised of the offer was in consultation with the Defendant.
Based on the testimony before the trial court, we conclude that the court, as the finder of fact, properly found that Smith's counsel never received a three-year plea offer. Given the trial court's finding that Smith necessarily must have advised his trial counsel of the prior three-year offer, the necessary implication is that Smith was advised of this offer either by the Commonwealth, or by one of his prior counsel, and that the offer was either rejected or withdrawn prior to the guilty plea.
Smith next contends, in a three-pronged argument, that his trial counsel rendered ineffective assistance by permitting prejudicial testimony to be introduced during the trial. Specifically, Smith contends that the jury heard testimony on three separate occasions regarding prejudicial information about his prior prison incarceration. This issue was raised in an unverified RCr 11.42 supplement which was filed while the original RCr 11.42 motion was on remand to the trial court for an evidentiary hearing and Smith was represented by counsel. While we seriously question whether the supplemental motion was properly before the trial court or whether it instead constituted an unauthorized, subsequent motion seeking RCr 11.42 relief, it is clear in either event that Smith is not entitled to relief.
On appellate review of a claim of ineffective assistance of counsel, we are governed by the standard set out in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under this standard, the movant must demonstrate that counsel made serious errors resulting in a performance outside the range of professionally competent assistance guaranteed by the Sixth Amendment. MacLaughlin v. Commonwealth, 717 S.W.2d 506, 507 (Ky.App. 1986). Moreover, the movant must further demonstrate that the deficient performance prejudiced the defense so seriously that but for counsel's errors, there is a reasonable likelihood that the outcome of the trial would have been different. Id. Finally, "[i]n considering ineffective assistance, the reviewing court must focus on the totality of evidence before the judge or jury and assess the overall performance of counsel throughout the case in order to determine whether the identified acts or omissions overcome the presumption that counsel rendered reasonable professional assistance." Haight v. Commonwealth, 41 S.W.3d 436, 441-42 (Ky. 2001).
Smith...
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