Wilson v. Com.

• Decision Date: 21 May 1998
• Docket Number: Nos. 97-SC-000228-M,97-SC-000288-MR,s. 97-SC-000228-M
• Citation: 975 S.W.2d 901
• Parties: Gregory WILSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 901

975 S.W.2d 901

Gregory WILSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Nos. 97-SC-000228-MR, 97-SC-000288-MR.

Supreme Court of Kentucky.

May 21, 1998.

Rehearing Denied Oct. 15, 1998.

Frank Wm. Heft, Jr., Jefferson District Public Defender, Rob Eggert, Assistant Public Defender, Daniel T. Goyette, Assistant Public Defender, Leo G. Smith, Assistant Public Defender, Louisville, Margaret E. Keane, Greenbaum, Doll & McDonald, Louisville, for Appellant.

A.B. Chandler, III, Attorney General, Connie Vance Malone, Assistant Attorney General, David A. Smith, Assistant Attorney General, Donald C. Buring, Assistant Attorney General, Janet M. Graham, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, for Appellee.

GRAVES, Justice.

Appellant, Gregory Wilson, was convicted in the Kenton Circuit Court of murder, kidnapping, first-degree rape, first-degree robbery and criminal conspiracy to commit robbery, for his participation in the 1987 death of Deborah Pooley. Appellant was sentenced to death on the murder and kidnapping convictions and to consecutive prison terms of 20, 20 and 10 years respectively for the first-degree rape, first-degree robbery and criminal conspiracy to commit robbery convictions.

On direct appeal, this Court affirmed the convictions and sentences with the exception of the kidnapping sentence, which was vacated and remanded for resentencing. Wilson v. Commonwealth, Ky., 836 S.W.2d 872 (1992). The trial court subsequently sentenced Appellant to life imprisonment on the kidnapping conviction, the maximum sentence for kidnapping as a Class A felony. On appeal, this Court again reversed and remanded on the grounds that Appellant was required to be resentenced by a jury unless the trial court imposed the minimum allowable sentence. Consequently, the trial court sentenced Appellant to 20 years imprisonment on the kidnapping charge.

On March 26, 1996, Appellant filed an RCr 11.42 motion to vacate his convictions. The trial court heard testimony for nine days and thereafter issued a seventy-seven page opinion and order which denied Appellant's motion. The motion to reconsider was denied and this appeal ensued. The two issues raised by Appellant are whether he knowingly and voluntarily waived his right to counsel and chose to proceed pro se, and whether the trial court denied him a full and fair evidentiary hearing.

I.

Following several failed attempts by the trial court to obtain counsel willing to accept appointment to represent Appellant, in June 1988, attorney William Hagedorn responded to Kenton Circuit Judge Raymond Lape's plea for counsel with an offer to represent Appellant pro bono. Attorney John Foote was subsequently appointed to assist in the defense.

In July 1988, Appellant filed a pro se motion to disqualify Judge Lape and objected to the order appointing Hagedorn and Foote. A hearing was held on August 6, 1988, during which Appellant was represented by Mario Conte of the National Association of Criminal Defense Lawyers. Appellant asserted that Hagedorn and Foote were not competent to represent him in a Capital case. However, Judge Lape terminated the hearing when Conte attempted to bring forth evidence of Hagedorn's alleged past unethical behavior.

Appellant repeatedly asserted that he did not want the assistance of Hagedorn and Foote because they were unprepared, ill-trained, and lacked the necessary competence and experience to represent him. On the second day of the trial during voir dire, Judge Lape explained to Appellant his right to proceed pro se and the dangers associated with self-representation. Judge Lape then conducted an on-the-record colloquy with Appellant to determine whether his decision to proceed pro se was knowing, intelligent and voluntary. The colloquy is set forth in Wilson, supra, and need not be repeated herein. However, at the conclusion of the colloquy, Judge Lape stated, "And at this time, I find that the Defendant has knowingly and voluntarily waived his right to use counsel if he so chooses, and I will permit him to represent himself, or to request of the two assigned lawyers to help him if he so chooses."

Appellant argues that he did not knowingly, intelligently and voluntarily waive his right to counsel, and did not elect to proceed pro se. Further, Appellant alleges that Judge Lape erred in failing to inquire sufficiently concerning Appellant's reason for objecting to Hagedorn and Foote's representation. He claims that he was forced either to represent himself or to be represented by unprepared and incompetent counsel. In support, Appellant sets forth multiple examples which he believes demonstrate ineffectiveness of Hagedorn and Foote.

On direct appeal, this Court thoroughly discussed and analyzed the issue of whether Appellant knowingly and voluntarily chose to proceed pro se. In finding that Appellant did, in fact, waive his right to counsel, this Court stated,

[W]e believe that a fair reading of the record as a whole clearly indicates that Wilson understood the dangers and disadvantages of self-representation. He knew he was entitled to counsel, yet the record clearly establishes that he elected to proceed with his eyes wide open.

Wilson's course of conduct during the trial in his persistent refusal to accept his own appointed counsel, his refusal to hire his own attorney or to expressly waive his right to an attorney, and his insistence that the court appoint him an attorney who met Wilson's specifications as a death penalty expert clearly put the trial judge between the proverbial rock and a hard place. We believe that the trial court's decision to allow Wilson to proceed with standby counsel was under the circumstances fair and reasonable.

Id. at 884.

Moreover, despite Appellant's contentions otherwise, our opinion addressed the sufficiency of Judge Lape's questioning, and rejected Appellant's claim that the trial court should have conducted an extensive inquiry into appointed counsel's background, qualifications, fitness and alleged acts of misconduct.

The consequences of adopting the intensive pretrial scrutiny of counsel such as advocated by Wilson would have an even more devastating and adverse effect. If such a standard were adopted, we shudder to think of the impact it would have on the willingness of attorneys to serve indigent defendants pro bono.

We are mindful of the authority cited by Wilson but we fail to find in these cases any grant of authority for a trial court to allow an indigent defendant to put his appointed counsel on trial for alleged past transgressions.

Wilson, supra at 879; see also McQueen v. Commonwealth, Ky ., 721 S.W.2d 694, 701 (1986).

With regard to Appellant's recitation of alleged examples of ineffective assistance of counsel, we also addressed the merits of such claims in the direct appeal. Again, we need not reiterate the details set forth in the original opinion. In applying the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we determined that Hagedorn and Foote did render Appellant effective assistance of counsel in those instances when they were allowed to participate in the trial. Wilson, supra at 879.

In an RCr 11.42 proceeding, the movant cannot raise issues which were raised and decided on direct appeal. Stanford v. Commonwealth, Ky., 854 S.W.2d 742 (1993), cert. denied, 510 U.S. 1049, 114 S.Ct. 703, 126 L.Ed.2d 669 (1994). In Brown v. Commonwealth, Ky., 788 S.W.2d 500 (1990), this Court held that the law of the case doctrine prevents review of issues raised in the direct appeal. "It is not the purpose of RCr 11.42 to permit a convicted defendant to retry issues which could and...