DONALD SELBY v. COMMONWEALTH OF KENTUCKY
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RENDERED:
AUGUST 2, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000906-MR
DONALD SELBY
APPELLANT
APPEAL FROM GRAYSON CIRCUIT COURT
HONORABLE SAM H. MONARCH, JUDGE
ACTION NO. 97-CR-00037
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM, and COMBS, Judges.
COMBS, JUDGE: Donald Selby appeals from an order of the Grayson
Circuit Court denying his motion for post-conviction relief
pursuant to RCr1 11.42.
We affirm.
On April 1, 1997, Selby was indicted for four counts of
first-degree wanton endangerment (KRS2 508.060) and one count of
operating a motor vehicle while a license is revoked or suspended
for driving under the influence, third or subsequent offense (KRS
189A.090).
Three of the wanton endangerment charges involved a
1
Kentucky Rules of Criminal Procedure.
2
Kentucky Revised Statutes.
vehicle occupied by three of his children when on August 13,
1994, Selby allegedly operated the motor vehicle in a reckless
manner, while under the influence of alcohol, and while the
children were unrestrained by seat belts.
The fourth wanton
endangerment charge resulted from the allegation that following
his stop for these charges, Selby physically pulled a police
officer off a bluff while trying to avoid arrest.
On August 14, 1997, the wanton endangerment charge
concerning the police officer was dismissed.
On August 29, 1997,
pursuant to an offer on a plea of guilty by the Commonwealth,
Selby filed a motion to enter a guilty plea.
Under the plea
bargain, Selby agreed to plead guilty to three counts of firstdegree wanton endangerment and one count of third-offense
operating a motor vehicle on a suspended license for DUI; in
return, the Commonwealth agreed to recommend four years on each
count — to run concurrently.
Following a hearing, the trial
court entered an order accepting the plea.
On October 8, 1997,
the trial court entered final judgment and sentence pursuant to
the plea agreement.
On November 8, 1999, Selby filed a motion for postconviction relief pursuant to RCr 11.42.
On March 20, 2000, the
trial court entered an order denying the motion without
conducting an evidentiary hearing.
This appeal followed.
Selby contends: (1) that he received ineffective
assistance of counsel in making his decision to enter a guilty
plea and (2) that the entry of his guilty plea was not knowingly
and intelligently made.
Both of these claims are based upon
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Selby’s assertion that he had never sought — nor had he been
issued — a Kentucky operator’s license; consequently, he had
never been issued a license which could have been subject to
suspension for DUI under KRS 189A.070.
According to Selby’s
theory, even though he has had various DUI convictions in
Kentucky, Kentucky does not have the power to revoke or suspend
his out-of-state license.
Hence, his license has never been
revoked or suspended pursuant to KRS 189A.070.
In order to establish effective assistance of counsel,
a person must satisfy a two-part test showing that counsel’s
performance was deficient and that the deficiency resulted in
actual prejudice affecting the outcome.
Strickland v.
Washington, 466 U.S. 668, S.Ct. 2052, 80 L.Ed.2d 674 (1984); Gall
v. Commonwealth, Ky., 702 S.W.2d 37 (1985), cert. denied, 478
U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986).
Where an
appellant challenges a guilty plea based on ineffective counsel,
he must show both that counsel made serious errors outside the
wide range of professionally competent assistance (McMann v.
Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed. 763
(1970)) 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 going to
trial.
Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88
L.Ed.2d 203 (1985); Sparks v. Commonwealth, Ky.App., 721 S.W.2d
726, 727-28 (1986); Casey v. Commonwealth, Ky.App., 994 S.W.2d
18, 23 (1999).
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In this case, Selby has not shown that trial counsel’s
performance was deficient under the first prong of Strickland.
Selby’s Courtnet Disposition System criminal record disclosed two
prior convictions for operating on a license suspended for DUI
under 189A.090.
Based upon this information, the present
indictment would have appeared accurate to trial counsel.
Further, we note that the legal theory which Selby advances in
his RCr 11.42 motion involves an issue which has never been ruled
upon by a Kentucky appellate court; his theory as to the relevant
statutes is not presently supported by legal precedent.
In
addition, the record discloses that on August 14, 1997, trial
counsel filed a motion seeking to dismiss the driving on a
suspended license charge based upon the absence of a Department
of Transportation (DOT) driving record under Selby’s name or
Social Security number.
Attached to the motion was an affidavit
from a DOT employee confirming the absence of a DOT driving
record for Selby.
These efforts reflect that trial counsel was
performing effectively in establishing a defense against the KRS
189A.090 charge.
In conjunction with or at approximately the same time
that the plea bargain was agreed upon, counsel withdrew the
motion to dismiss.
We agree that it was sound trial strategy for
trial counsel to abandon the motion to dismiss in order to secure
the favorable terms of the plea agreement.
At the time of the
plea agreement, Selby was under indictment for four Class D
felonies; if convicted, he was at risk of receiving a total
sentence of up to twenty years.
Pursuant to the plea agreement,
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he was required to serve only four years.3
After reviewing the
totality of the record and circumstances, we are persuaded that
trial counsel rendered effective assistance under the first prong
of Strickland.
Selby has also failed to demonstrate that his guilty
plea was not knowingly and voluntarily entered.
In determining
the validity of guilty pleas in criminal cases, the plea must
represent a voluntary and intelligent choice among the
alternative courses of action available to the defendant.
North
Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162
(1970); Sparks v. Commonwealth, Ky.App., 721 S.W.2d 726 (1986).
The United States Supreme Court has held that both federal and
state courts must specifically determine that guilty pleas are
voluntarily and intelligently made by competent defendants.
Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d
747 (1970).
Since pleading guilty entails the waiver of several
critical constitutional rights — including the privilege against
compulsory self-incrimination, the right to trial by jury, and
the right to confront one’s accusers, a waiver of these rights
cannot be presumed from a silent record.
The court must question
the accused to ascertain that he has a full understanding of what
the plea connotes and of its consequences, and this determination
should become a part of the record.
Boykin v. Alabama, 395 U.S.
238, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969); Centers v.
3
There is also information in the record to the effect that
the Commonwealth was threatening to indict Selby as a persistent
felony offender, a charge which was apparently avoided by the
plea agreement.
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Commonwealth, Ky. App., 799 S.W.2d 51, 54 (1990); D.R. v.
Commonwealth, Ky. App., 64 S.W.3d 292, 294 (2001).
In this case, the trial court held a hearing on the
plea agreement and engaged in textbook Boykin colloquy with
Selby.
The trial court went through a list of each of the
constitutional rights that Selby was waiving by pleading guilty,
and Selby acknowledged both his understanding of those rights and
the fact that he was waiving them.
Selby claims that there could not have been a knowing
and voluntary guilty plea because he did not believe that he was
subject to conviction under KRS 189A.090 due to his lack of a
Kentucky driver’s license.
As previously noted, this issue has
never been passed upon by the Kentucky appellate courts.
The
validity of Selby’s plea could not be deemed to be affected by
the speculative state of an untested legal theory.
Since a
motion to dismiss the charge had been filed, Selby was aware that
there had been a potential defense to this charge, a defense
which he specifically abandoned in exchange for the plea
agreement.
Selby’s argument as to a non-existent license may be
treated as a claim of insufficiency of evidence.
Even so, a
valid guilty plea waives all non-jurisdictional defenses except
that the indictment charged no offense.
Ky., 875 S.W.2d 99, 100 (1994).
Hughes v. Commonwealth,
A valid guilty plea also
constitutes an admission to the underlying elements of the
offense.
57 (1995).
Skeans v. Commonwealth, Ky. App., 912 S.W.2d 455, 456Entry of a voluntary, intelligent plea of guilty
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precludes a post-judgment challenge to the sufficiency of the
evidence.
(1993).
Lovett v. Commonwealth, Ky., 858 S.W.2d 205, 207
A guilty plea is more than a general confession which
admits that the accused committed various acts.
at 242, 89 S. Ct. at 1711.
Rather, it is an “admission that he
committed the crime charged against him.”
32, 91 S. Ct. at 164.
Boykin, 395 U.S.
Alford, 400 U.S. at
By entering a plea of guilty, the accused
is not simply stating that he performed the discrete acts
described in the indictment; he is admitting guilt of a
substantive crime.
United States v. Broce, 488 U.S. 563, 570,
109 S. Ct. 757, 762, 102 L. Ed.2d 927 (1989).
As a result, Selby
is precluded from now claiming that there was insufficient
evidence (i.e., no evidence of a suspended license) to convict
him under KRS 189A.090.
Finally, because the allegations in Selby’s motion
could be resolved from the face of the record, an evidentiary
hearing was not required.
448, 452 (2001).
Fraser v. Commonwealth, Ky., 59 S.W.3d
Therefore, since an evidentiary hearing was not
required, Selby was not entitled to appointment of trial counsel.
Id.
The judgment of the Grayson Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT PRO SE:
BRIEF FOR APPELLEE:
Donald Selby
Northpoint Training Center
Burgin, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
Janine Coy Bowden
Assistant Attorney General
Frankfort, Kentucky
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