Stinnett v. Com.

• Decision Date: 11 June 1971
• Citation: 468 S.W.2d 784
• Parties: Ronnie STINNETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 784

468 S.W.2d 784

Ronnie STINNETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

June 11, 1971.

William A. Fenwick, New York City, William L. Wilson, Jr., Richard D. Gilliam, Jr., Owensboro, for appellant.

John B. Breckinridge, Atty. Gen., James H. Barr, Asst. Atty. Gen., Frankfort, for appellee.

EDWARD P. HILL, Judge.

This is the third appeal in appellant's efforts to obtain relief under RCr 11.42. The first appeal (Stinnett v. Commonwealth, Ky., 446 S.W.2d 292) resulted in the reversal of a judgment overruling, without a hearing, his motion to vacate three judgments of conviction under which he is serving 18 years' imprisonment. Specifically he was charged with breaking and entering, shooting and wounding, and carrying a concealed deadly weapon.

On remand a hearing was held and judgment entered overruling his RCr 11.42 motion to vacate. On appeal (Stinnett v. Commonwealth, Ky., 452 S.W.2d 613) this court remanded with directions to furnish records on appeal and other matters shown in the opinion.

This appeal is now before us with a complete record of the hearing. He presents three arguments that may be summarized as follows. First he says he was denied effective assistance of counsel as a result of the standard procedure of the Daviess Circuit Court in selecting attorneys to represent indigent defendants. In addition thereto, he says that the manner in which he was actually represented by appointed counsel shows on the face of the record that he did not receive 'effective assistance' of counsel. His third argument is that he was denied his right of appeal provided by the 'laws of the Commonwealth of Kentucky' and guaranteed by the Fourteenth Amendment to the United States Constitution.

Under appeallant's first argument, he claims that from a roster of eighty attorneys practicing in the Daviess Circuit Court, a list of names of fifteen of the most recently admitted attorneys is kept from which all attorneys are appointed to represent indigent defendants; that the attorney appointed to represent the appellant was taken from that list; that by this manner of selection the experienced attorneys are excused from representing indigent defendants, and only the inexperienced ones remain to draw from. Appellant calculates that this manner of selection results in 19 percent of the bar representing all of the indigent defendants.

This question was not raised in appellant's motion to vacate. See citations supra, relative to previous appearances of this case in this court. The question is not properly presented for appellant review. Nevertheless, in view of the argument that a fundamental constitutional right has been violated, we shall discuss and pass upon the question.

We begin with the recognition that the trial judge is vested with a broad discretion in the selection and appointment of counsel for indigent defendants. His conduct of the trial enables him to observe the manner in which the attorney appointed performs his duties.

Of the eighty attorneys of the bar, this record is silent as to how many are inactive, how many specialize in civil practice, or how many are physically able or unable to practice criminal cases.

The bare fact that the fifteen attorneys making up the list are the youngest members of the bar does not ipso facto mean that they are incapable or ineffective. In fact, there are those today who place great emphasis on the capacity and ability of youth.

When all is said and done, we are not persuaded that the trial judge abused his discretion in using this system of selecting attorneys in indigent cases herein questioned.

Appellant next points out a number of instances that occurred during the trial which allegedly demonstrate that appointed counsel did not render 'effective assistance' in the presentation of his defense. The first such instance relates to 'pretrial hearings,' in which appellant now says that the advice of his attorney to waive examining trial was prejudicial to appellant and demonstrated that he, appellant, did not receive 'effective assistance' of counsel, guaranteed by § 11 of the Constitution of Kentucky and the opinions in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); and Rice v. Davis, Ky., 366 S.W.2d 153 (1963).

There may be instances in which the defendant may obtain an advantage by demanding an examining trial. In other instances, a waiver may result in a benefit to the defendant. Certainly we cannot say that the advice to waive examining trial constituted evidence of ineffective representation.

Next appellant argues that the failure of appointed counsel to obtain a copy of the minutes of the grand jury proceeding and failure to advise appellant to plead not guilty constituted additional evidence that his counsel was ineffective. It would seem that these arguments are so counterfeit they demand little attention. However, it should be noted that appellant's appointed counsel gave the most appropriate answer to this argument...