SCOTT ETHEREDGE v. COMMONWEALTH OF KENTUCKY
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RENDERED:
AUGUST 25, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1998-CA-002955-MR
SCOTT ETHEREDGE
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES E. KELLER, JUDGE
ACTION NO. 97-CR-00976
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HUDDLESTON, McANULTY and MILLER, Judges.
HUDDLESTON, Judge.
Scott Etheredge appeals pro se from an order
denying his motion to vacate or correct sentence brought pursuant
to Kentucky Rule of Criminal Procedure (RCr) 11.42.
We affirm.
On July 20, 1997, personnel at the Blackburn Correctional
Complex discovered that Etheredge, who was serving a five-year
sentence for burglary and theft, was missing when they conducted a
routine survey of prisoners.
They immediately filed a criminal
complaint charging him with unlawful escape, and the district court
issued an arrest warrant.
arrested on the warrant.
On August 5, 1997, Etheredge was
On September 8, 1997, a Fayette County
grand jury charged Etheredge in an indictment with escape in the
second degree (Escape II)1 and with being a persistent felony
offender in the second degree (PFO II)2.
On October 31, 1997,
Etheredge entered a guilty plea to both counts of the indictment
pursuant to an agreement with the Commonwealth, which recommended
a sentence of one year for Escape II enhanced to five years for
being a PFO II under count two.
On December 9, 1997, the circuit
court sentenced Etheredge accordingly.
In July 1998, Etheredge filed an RCr 11.42 motion seeking
to vacate or set aside his conviction and sentence based on
ineffective assistance of counsel.
He also filed motions seeking
an evidentiary hearing and appointment of counsel.
Etheredge
alleged that his guilty plea was not valid because counsel allowed
him to plead guilty even though he was under the influence of drugs
at the time.
He asserted that his escape was due to the prison’s
failure to provide medication for his psychological problems with
anxiety
which
his
attorney
failed
to
investigate
or
seek
appointment of an expert witness to evaluate for purposes of
developing
a
defense.
The
trial
court
appointed
represent appellant on the RCr 11.42 motion.
counsel
to
In a supplemental
memorandum, counsel also argued that trial counsel was ineffective
for failing to inform Etheredge that he had a viable choice of
evils defense to the escape charge based on his anxiety disorder.
1
Ky. Rev. Stat. (KRS) 520.030.
2
KRS 532.080.
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Counsel stated that Etheredge left the prison because of a severe
panic attack that led him to believe he was going to suffocate.
On November 6, 1998, the trial court denied the motion
without a hearing.
The court held that Etheredge was competent at
the time he entered his guilty plea and that counsel was not
ineffective because appellant did not establish that he had a
viable choice of evils defense.
This appeal followed.
On appeal, Etheredge complains about the trial court’s
failure to conduct an evidentiary hearing on his motion.
Because
Etheredge fails to address in his appellate brief the substantive
aspects of the issues raised in his RCr 11.42 motion, we are not
obligated to review those issues on appeal.
Nevertheless, given
Etheredge’s pro se status, we will address the merits of the issues
presented in the original motion.
RCr 11.42 provides persons in custody a procedure for
raising collateral challenges to judgment of conviction entered
against them.
A movant, however, is not automatically entitled to
an evidentiary hearing on the motion.3
An evidentiary hearing is
not required on an RCr 11.42 motion when the issues raised in the
motion are refuted on the record, or where the allegations, even if
true, would not be sufficient to invalidate the conviction.4
3
Wilson v. Commonwealth, Ky., 975 S.W.2d 901, 904 (1998),
cert. denied, 526 U.S. 1023, 119 S. Ct. 1263, 143 L. Ed. 2d 359
(1999).
4
Sanborn v. Commonwealth, Ky., 975 S.W.2d 905, 908 (1998),
cert. denied, 526 U.S. 1025, 119 S. Ct. 1266, 143 L. Ed. 2d 361
(1999); Harper v. Commonwealth, Ky., 978 S.W.2d 311, 314 (1998),
cert. denied,___ U.S. ____, 119 S. Ct. 1367, 143 L. Ed. 2d 527
(1999).
-3-
In order to establish ineffective assistance of counsel,
a
defendant
must
show
both
that
counsel’s
performance
was
deficient, and that the deficiency resulted in actual prejudice
affecting the outcome of the proceeding.5
The major focus is
whether the proceeding was fundamentally unfair or unreliable.6
The
defendant
assistance.7
bears
the
burden
of
establishing
ineffective
In an RCr 11.42 proceeding, the defendant “‘must do
more than raise a doubt about the regularity of the proceedings
under which he was convicted.
He must establish convincingly that
he has been deprived of some substantial right which would justify
the
extraordinary
proceeding.’”8
relief
afforded
by
this
post-conviction
When a defendant challenges a guilty plea based on
ineffective assistance of counsel, he must show both that counsel
made serious errors outside the wide range of professionally
competent
assistance,9
and
that
the
deficient
performance
so
seriously affected the outcome of the plea process that, but for
the errors of counsel, there is a reasonable probability that the
defendant would not have pled guilty, but would have insisted on
5
Strickland v. Washington, 466 U.S. 688, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984); Harper v. Commonwealth, supra note 2.
6
Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S. Ct. 838,
842, 112 L. Ed. 2d 180 (1993); Casey v. Commonwealth, Ky. App., 994
S.W.2d 18 (1999).
7
Strickland, 466 U.S. at 690, 104 S. Ct. at 2066; Bowling v.
Commonwealth, Ky., 981 S.W.2d 545, 551 (1998), cert. denied, 527
U.S. 1026; 119 S. Ct. 2375, 144 L. Ed. 2d 778 (1999).
8
Commonwealth v. Pelphrey, Ky., 998 S.W.2d 460, 462
(1999)(quoting Commonwealth v. Campbell, Ky., 415 S.W.2d 614, 616
(1967)).
9
McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441,
1449, 25 L. Ed. 2d 763 (1970).
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going
to
trial.10
scrutinizing
A
counsel’s
court
must
performance
be
and
highly
avoid
deferential
in
second-guessing
counsel’s actions based on the benefit of hindsight.11
There is a
strong presumption that counsel’s conduct fell within the wide
range of reasonable assistance that the defendant must overcome.12
In measuring prejudice, the relevant inquiry is whether “there is
a reasonable probability, that but for counsel’s unprofessional
errors, the result of the proceeding would have been different.
A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.”13
‘”A defendant is not guaranteed
errorless counsel, or counsel adjudged ineffective by hindsight,
but counsel reasonably likely to render and rendering reasonably
effective assistance.’”14
Etheredge’s
primary
complaint
is
that
trial
counsel
failed to inform him that he had a viable choice of evils defense
to the escape charge.
He alleges that he left the prison because
he suffered a severe panic attack.
He states that on the night of
10
Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370, 88
L. Ed. 2d 203 (1985); Roberson v. Commonwealth, Ky., 913 S.W.2d
310, 316 (1994).
11
Harper, 978 S.W.2d at 315; Wilson v. Commonwealth, Ky., 836
S.W.2d 872, 879 (1992), cert. denied, 507 U.S. 1034, 113 S. Ct.
1857, 123 L. Ed. 2d 479 (1993); Russell v. Commonwealth, Ky. App.,
992 S.W.2d 871, 875 (1999).
12
Strickland, 478 U.S. at 689, 104 S. Ct. at 2065; Bowling,
981 S.W.2d at 551.
13
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. See also
Moore v. Commonwealth, Ky., 983 S.W.2d 479, 488 (1998), cert.
denied,___ U.S. ____, 120 S. Ct. 110, 143 L. Ed. 2d 93 (1999).
14
Sanborn, 975 S.W.2d at 911
Commonwealth, Ky., 949 S.W.2d 70 (1997)).
-5-
(quoting
McQueen
v.
the
incident,
his
heart
started
pounding
very
fast,
he
difficulty breathing and he thought he was going to black out.
had
He
felt like he was “going crazy” and that the walls were closing in
on him.
Etheredge says that he believed if he did not get away
from the environment he was in, he would die.
He alleges that he
does not remember actually escaping and awoke the next morning in
a field where he hid for ten days living on scraps of food from a
dumpster at a nearby restaurant.
The trial court held that Etheredge did not sufficiently
allege that he had a viable choice of evils defense.
The choice of
evils defense is codified in KRS 503.030(1), which states in
relevant part:
[C]onduct which would otherwise constitute an offense is
justifiable
when
the
defendant
believes
it
to
be
necessary to avoid an imminent public or private injury
greater than the injury which is sought to be prevented
by the statute defining the offense charged. . . .
The case law construing this statute is sparse.
In
Montgomery v. Commonwealth,15 the defendants attempted to justify
their prison escape based on a fear that they would either “kill or
be killed” upon release from protective custody into the general
prison population because they were suspected of assaulting other
inmates earlier.
The Court held that the defendants’ proof was
insufficient to establish injury so imminent to justify a choice of
15
Ky., 819 S.W.2d 713 (1991).
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In Damron v. Commonwealth,16 the
evils instruction at trial.
defendant testified that his escape from prison was a “‘matter of
life or death.’”17 He also stated that he was ill while in jail,
lost weight, suffered severe chest pains and was denied medical
attention.
Damron testified that he felt that his life was in
jeopardy unless he escaped his current environment. The Court held
that
Damron’s
instruction
situation
because
there
did
not
was
not
justify
a
a
choice
sufficient
of
showing
evils
of
a
“specific and imminent threat to his person in order to justify
giving the instruction.”18
In Senay v. Commonwealth,19 the Court
indicated that the choice of evils defense is available only where
the evidence supports a defendant’s choice to commit an unlawful
act over other lawful means of protecting himself.
presented
to
the
defendant
must
be
compelling
“[T]he danger
and
imminent,
constituting a set of circumstances which affords him little or no
alternative other than commission of the act which otherwise would
be unlawful.”20
We agree with the trial court that Etheredge failed to
establish a viable choice of evils defense because his allegations,
even if true, do not establish a compelling, imminent threat of
physical injury for which there was no alternative to escaping from
the prison.
While he may have perceived an imminent threat, he did
16
Ky., 687 S.W.2d 138 (1985).
17
Id. at 139.
18
Id.
19
Ky., 650 S.W.2d 259 (1983).
20
Id. at 260.
-7-
not explain why he could not have sought assistance or some
alternative to escape.
As the decision in Damron demonstrates, a
mere fear of serious injury or even death is not sufficient.
Etheredge’s prior history of panic attacks and his successful use
of drugs for his condition made him aware that his immediate fears
were not necessarily compelling or reliable. Furthermore, the fact
that he remained at large for over two weeks and was arrested at a
friend’s
house
conflicts
with
his
claim
that
justified because of an acute panic attack.
the
escape
was
Because he has not
shown a reasonable probability that he would have been entitled to
a choice of evils instruction at a trial or that he would have been
successful in convincing a jury that the defense applied, Etheredge
has not established actual prejudice in that the outcome of a trial
would have led to a different result than the guilty plea.21
As a
result, he has not satisfied his burden of establishing ineffective
assistance of counsel.
The trial court did not err in denying his
RCr 11.42 motion without a hearing.
The Fayette Circuit Court order denying Etheredge’s RCr
11.42 motion is affirmed.
ALL CONCUR.
21
See, e.g., Hill v. Lockhart, 474 U.S. at 59, 106 S. Ct. at
371 (prejudice determined in large part on prediction whether
undisclosed defense would have succeeded at trial).
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Scott Etheredge, pro se
LaGrange, Kentucky
Albert B. Chandler III
Attorney General for Kentucky
J. Foster Cutthoff
Assistant Attorney General
Frankfort, Kentucky
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