RICKY LEE RAMAGE v. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 30, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000608-MR
RICKY LEE RAMAGE
v.
APPELLANT
APPEAL FROM McCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
ACTION NOS. 02-CR-00035; 02-CR-00035-001
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, Chief Judge; TACKETT, Judge; and EMBERTON,
Senior Judge.1
COMBS, JUDGE.
Ricky Lee Ramage appeals pro se from an order of
the McCracken Circuit Court which denied his motion to vacate
judgment and sentence pursuant to RCr2 11.42.
1
Ramage contends
Senior Judge Thomas Emberton sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
2
Kentucky Rules of Criminal Procedure.
that he was deprived of effective assistance of counsel when he
entered his plea of guilty because of a conflict of interest on
the part of the attorney who represented him at that stage in
the proceedings.
Our review of the record reveals that Ramage
has not demonstrated an actual conflict of interest.
Therefore,
we affirm.
In January 2002, Ramage and Stormi Elizabeth Harris
were jointly indicted for second-degree assault for hitting and
kicking Jimmy Woodford in the parking lot of the Silver Bullet
Bar in Paducah, Kentucky.
Chris McNeil, an attorney employed by
the Department of Public Advocacy (DPA), was initially appointed
to represent Ramage.
Another attorney from DPA, Audrey Lee, was
appointed to represent Harris, Ramage’s co-defendant.
A private
attorney, Mike Ward, was later appointed to replace McNeil as
Ramage’s attorney in order to avoid the potential of a conflict
in the representation of two co-defendants by DPA attorneys.
Ward represented Ramage at his arraignment on February
15, 2002.
The Commonwealth offered to recommend a sentence of
seven years in exchange for Ramage’s plea of guilty -contingent on the plea of co-defendant Harris.
the offer.
Ramage accepted
When Ramage entered his plea of guilty on April 26,
2002, Ward was not present in court.
Instead, Ramage was
represented by his former attorney, McNeil, who informed the
court that he was “standing in” for Ward, who was unavailable.
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Before accepting the plea, the judge asked Ramage if
he had discussed the facts of the case with Ward.
He also
inquired of Ramage whether “you determined in your conversations
with Mr. Ward that this [plea bargain] was in your best
interest?”
Ramage answered “yes” to both questions.
The court
then conducted a colloquy with Ramage, informing him of his
rights and the consequences of a guilty plea and determining
that he had not been coerced into making the plea.
Ramage also
signed the “motion to enter guilty plea” form, on which he
indicated that he believed that his attorney was fully informed
about the case and that he understood the advice he had
received.
A final judgment was entered on April 30, 2002.
appeared with Ramage for his sentencing on July 18, 2002.
Ward
He
received a seven-year sentence in accordance with the terms of
the plea agreement.
On December 16, 2002, Ramage filed motions pursuant to
RCr 11.42 seeking to vacate the sentence and conviction and to
receive an evidentiary hearing.
He raised the issue of a
violation of RCr 8.30, alleging that a conflict of interest on
McNeil’s part had rendered his plea involuntary and unknowing.
He also asserted that he had been denied the right to speak on
his own behalf (“the right of allocution”) at his sentencing
hearing.
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The circuit court denied the motion, finding that
Ramage had received conflict-free counsel during the pendency of
the proceedings and that Ramage had voluntarily pled guilty.
The court also found that the record revealed that Ramage and
his attorney had been given the opportunity to speak at his
final sentencing.
Holding that all the issues raised by Ramage
could be resolved from the face of the record, the court denied
his motion for an evidentiary hearing.
This appeal followed.
The Commonwealth argues that Ramage’s claim of
conflict of interest could have been raised on direct appeal and
that it is, therefore, not appropriate for our review pursuant
to the provisions of RCr 11.42.
In Cole v. Commonwealth, Ky.,
441 S.W.2d 160 (1969), a claim of ineffective assistance of
counsel due to a potential conflict of interest was held not to
constitute sufficient grounds to sustain a motion for postconviction relief under RCr 11.42.
However, more recently, the
Kentucky Supreme Court has recognized and reviewed claims of
ineffective assistance of counsel based on an allegation of a
conflict of interest.
694, 698-99 (1986).
McQueen v. Commonwealth, Ky., 721 S.W.2d
As a practical matter, this RCr 11.42
motion was Ramage’s only avenue of redress of a potential error
since the terms of his plea agreement precluded his recourse to
a direct appeal.
Therefore, we have elected to address his
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claim of ineffective assistance of counsel based on his
allegation of conflict of interest.
In order to prevail on a claim of ineffective
assistance of counsel, a movant must show that the performance
of counsel was deficient and that the deficient performance
prejudiced his defense.
Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord, Gall v.
Commonwealth, Ky., 702 S.W.2d 37, 39-40 (1985), cert. denied,
478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986).
In the
context of a plea agreement, a movant must show that his
attorney’s performance was deficient and that but for counsel’s
errors, there is a reasonable probability that he would not have
pled guilty and would have instead insisted on going to trial.
Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 369-70, 88 L.Ed.2d
203 (1985).
RCr 8.30(1) prohibits dual representation of persons
charged with the same offenses unless:
(a) the judge of the court in which the
proceeding is being held explains to the
defendant or defendants the possibility of a
conflict of interest on the part of the
attorney in that what may be or seem to be
in the best interests of one client may not
be in the best interests of another, and
(b) each
executes
record a
conflict
attorney
defendant in the proceeding
and causes to be entered in the
statement that the possibility of a
of interests on the part of the
has been explained to the defendant
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by the court and that the defendant
nevertheless desires to be represented by
the same attorney.
Ramage relies on Peyton v. Commonwealth, Ky., 931 S.W.2d 451,
453 (1996), which announced a bright-line rule that “[n]oncompliance with the provisions of RCr 8.30 is presumptively
prejudicial and warrants reversal.”
The Peyton holding was
subsequently overruled in Kirkland v. Commonwealth, Ky., 53
S.W.3d 71, 75 (2001), in which the Kentucky Supreme Court
modified the previous per se rule by holding that:
[a] violation of RCr 8.30, or as in this
case, a questionable violation, which does
not result in any prejudice to the
defendant, should not mandate automatic
reversal. Such a result defies logic and
ignores the principles of judicial economy.
Id. at 75.
Thus, for post-conviction claims involving a
conflict of interest, the test is whether an actual conflict of
interest adversely affected the performance of defense counsel.
Failure to comply with RCr 8.30 is “not presumptively
prejudicial and does not warrant automatic reversal.
A
defendant must show a real conflict of interest in order to
obtain reversal.”
Id. (Emphasis added).
Ramage claims that McNeil coerced him into entering a
plea that he neither understood nor wanted because he was acting
in the best interests of the DPA and the co-defendant, Harris,
whom his office was also representing in the case.
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Ramage
additionally alleges that McNeill failed to negotiate a more
favorable plea on his behalf in order to preserve the contingent
plea offers made to Harris and to him by the Commonwealth.
However, the record discloses that Ramage had already
discussed the plea offer with Ward and had decided to accept it
before appearing at his hearing with McNeil.
There is no
evidence in the record -- nor has Ramage produced any – to
indicate or to intimate that he was coerced into pleading guilty
in order to aid his co-defendant.
Furthermore, in response to
the court’s questioning, Ramage readily admitted that he had
discussed the offer with Ward, his conflict counsel, and that he
had decided that it was in his best interest.
There is
absolutely no evidence that McNeil pressured Ramage to enter the
plea to his own detriment in order to serve the interests of
Harris or the DPA.
Ramage has also attached to his brief several motions
that were signed by McNeil rather than by Ward.
He claims that
these documents support his contention that he was represented
by an attorney who had a conflict of interest.
McNeil did sign
the Commonwealth’s offer on a plea of guilty and the motion to
enter the plea of guilty in lieu of Ward.
Additionally, some
discovery motions from the Commonwealth and a court order for
reciprocal discovery were served on McNeil rather than on Ward.
However, it appears that no discovery was conducted; nor does
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Ramage explain how the error in service prejudiced his case.
The record shows that Ward submitted a motion for discovery on
Ramage’s behalf -- as well as a motion for shock probation.
Ramage has failed to show an actual conflict of
interest rendering the performance of Ward or McNeil
professionally deficient.
Thus, he cannot satisfy the Kirkland
test as to his burden to demonstrate a real conflict of
interest.
Therefore, we hold that the trial court did not err
in dismissing Ramage’s RCr 11.42 motion.
Ramage also claims that he was denied the right of
allocution.
Allocution is defined as “a trial judge's formal
address to a convicted defendant, asking him or her to speak in
mitigation of the sentence to be imposed.”
DICTIONARY (8th ed. 2004).
BLACK’S LAW
At the sentencing hearing, the court
asked attorney Ward whether he had anything to say without
directly asking Ramage as well.
Ramage was, therefore, afforded
the opportunity to speak through his attorney.
Ramage had been
given ample opportunity earlier to speak personally at the plea
hearing.
He received exactly the sentence he had bargained for
with the Commonwealth.
In Lewallen v. Commonwealth, Ky.App.,
584 S.W.2d 748, 751 (1979), a case with similar circumstances,
this Court failed to find any manifest injustice in not allowing
a defendant to speak in mitigation of the plea.
We affirm the order of the McCracken Circuit Court.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ricky Lee Ramage, Pro se
Fredonia, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
William Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky
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