LINDQUIST (ARNOLD) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: AUGUST 21, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-002072-MR
ARNOLD LINDQUIST
v.
APPELLANT
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE PAUL E. BRADEN, JUDGE
ACTION NO. 03-CR-00044
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON, DIXON AND TAYLOR, JUDGES.
DIXON, JUDGE: Appellant, Arnold Lindquist, appeals pro se from an order of
the Whitley Circuit Court denying him post-conviction relief pursuant to RCr
11.42. Finding no error, we affirm.
In April 2003, Appellant was indicted by a Whitley County Grand
Jury for first-degree possession of a controlled substance, bribery of a public
servant, and for being a second-degree persistent felony offender. On the morning
of trial, Appellant moved to suppress evidence obtained at the time of his arrest.
Following a hearing, the trial court denied the motion. Appellant thereafter entered
a conditional guilty plea to first-degree possession of a controlled substance and
bribery of a public servant, and was sentenced to a total of eight years’
imprisonment.1 However, Appellant expressly reserved his right to appeal the
suppression issue.
On appeal, a panel of this Court affirmed Appellant’s conviction and
sentence. With respect to the suppression issue, the panel noted,
At a September 21, 2005, hearing regarding Lindquist's
suppression motion, the following testimony was given.
Kentucky State Police Trooper Michael Witt testified that
on November 10, 2002, he and Trooper Scott Bunch
were traveling in separate police cruisers on a secluded
gravel road. Witt saw a new-model van parked with its
lights on some fifty yards off the gravel road, down a dirt
logging road. Since there were no houses or other
structures near the van, it was near midnight, and the area
was one where the police had found burned and stolen
vehicles, Witt pulled behind the van. Witt and Bunch
approached the van on foot.
Witt found Lindquist in the van's driver's seat with his
pants down to his knees, blood on his left arm, and
bloody towels on the dashboard. Witt also testified that
he could readily see that Lindquist's arm had been stuck
with an intravenous needle. Further, Bunch found a
syringe on the ground next to the passenger's rear sliding
door. After Witt briefly talked to Lindquist, he instructed
Lindquist to get out of the van. When Lindquist did so,
Witt observed a small bag containing a white powdery
substance in the driver's side cup holder, located under
1
The second-degree persistent felony offender charge was dismissed.
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the radio. At that point Witt arrested Lindquist for
possession of a controlled substance.
Based on the seclusion of the area in which Lindquist
was arrested, and the other circumstances as described by
Witt, including the fact that Witt testified the bag was in
plain view once Lindquist exited the car, the court
overruled Lindquist's suppression motion.
...
On appeal from a trial court's determination following a
motion to suppress,
We first determine whether the trial court's
findings of fact are supported by substantial
evidence. If they are, then they are
conclusive. Based on those findings of fact,
we must then conduct a de novo review of
the trial court's application of the law to
those facts to determine whether its decision
is correct as a matter of law.
Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App.
2002) (footnotes omitted). Here, despite Lindquist's
argument to the contrary, the circuit court expressly
found that it believed the circumstances as described
by Trooper Witt, including that the bag in Lindquist's
cup holder was in plain view once Lindquist left the
vehicle. . . . [T]hese facts were supported by substantial
evidence, i.e., Trooper Witt's testimony.
Lindquist v. Commonwealth, 2006-CA-000089-MR (June 15, 2007).
In June 2008, Appellant filed an RCr 11.42 motion to vacate his
sentence on the grounds that trial counsel was ineffective for arguing the wrong
standard during the suppression hearing. Appellant further requested appointment
of counsel and an evidentiary hearing. On October 6, 2008, the trial court entered
an order denying Appellant’s motion without an evidentiary hearing on the
grounds that the ineffective assistance of claim was simply a “re-characterization”
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of the suppression issue raised and disposed of on direct appeal. This appeal
ensued.
In an RCr 11.42 proceeding, the movant has the burden to establish
convincingly that he was deprived of substantial rights that would justify the
extraordinary relief afforded by the post-conviction proceeding. Dorton v.
Commonwealth, 433 S.W.2d 117, 118 (Ky. 1968). Since Appellant entered a
guilty plea, a claim that he was afforded ineffective assistance of counsel requires
him to show: (1) that counsel made errors so serious that counsel's performance fell
outside the wide range of professionally competent assistance; and (2) 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 pleaded guilty, but would have insisted on going to trial. Bronk v.
Commonwealth, 58 S.W.3d 482, 486-87 (Ky. 2001). See also Hill v. Lockhart, 474
U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Furthermore, an evidentiary hearing on an RCr 11.42 motion is
warranted only "if there is an issue of fact which cannot be determined on the face
of the record." Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993),
cert. denied, 510 U.S. 1049 (1994); RCr 11.42(5). See also Fraser v.
Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001); Bowling v. Commonwealth, 981
S.W.2d 545, 549 (Ky. 1998), cert. denied, 527 U.S. 1026 (1999). "Conclusionary
allegations which are not supported by specific facts do not justify an evidentiary
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hearing because RCr 11.42 does not require a hearing to serve the function of a
discovery deposition." Sanders v. Commonwealth, 89 S.W.3d 380, 385 (Ky.
2002), cert. denied, 540 U.S. 838 (2003), overruled on other grounds in Leonard
v. Commonwealth, 279 S .W.3d 151 (Ky. 2009).
Where an evidentiary hearing is unwarranted, appointment of counsel
is not required. Fraser, 59 S.W.3d at 453. Moreover, when a trial court denies a
motion for an evidentiary hearing, appellate review is limited to whether the
motion on its face states grounds that are not conclusively refuted by the record
and which, if true, would invalidate the conviction. Sparks v. Commonwealth, 721
S.W.2d 726, 727 (Ky. App. 1986). Thus, the question becomes whether the trial
court properly found that Appellant's claims of ineffective assistance of counsel
were refuted by the record. This Court must consider the totality of the evidence
before the trial court, and must assess trial counsel's overall performance, to
determine whether the presumption that counsel afforded reasonable professional
assistance is overcome by the identified omissions. See Kimmelman v. Morrison,
477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); Simmons v. Commonwealth,
191 S.W.3d 557, 561 (Ky.2006), overruled on other grounds in Leonard v.
Commonwealth, 279 S.W.3d 151 (Ky. 2009).
Appellant argues on appeal that the trial court erred in failing to
conduct an evidentiary hearing, because his claims could not be refuted from the
face of the record. Further, Appellant argues that the trial court violated the
Kentucky Supreme Court’s decision in Martin v. Commonwealth, 207 S.W.3d 1
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(Ky. 2006), by ruling that an issue litigated on direct appeal cannot be relitigated in
an RCr 11.42 motion as ineffective assistance of counsel. As he did in the trial
court, Appellant contends that his counsel rendered ineffective assistance by
arguing the suppression standard for a search of an automobile rather than a search
occurring on private property. It is Appellant’s position that had trial counsel
correctly presented the suppression issue, the trial court would have suppressed the
evidence and, in turn, he would not have entered the conditional guilty plea. We
disagree.
We are of the opinion that Appellant’s reliance on Martin v.
Commonwealth is misplaced. In Martin, our Supreme Court held that a petitioner
may present an ineffective assistance of counsel claim in an RCr 11.42 motion,
even though the underlying claim of palpable error had been denied on direct
appeal. The Court reasoned:
When an appellate court engages in a palpable error
review, its focus is on what happened and whether the
defect is so manifest, fundamental and unambiguous that
it threatens the integrity of the judicial process.
However, on collateral attack, when claims of ineffective
assistance of counsel are before the court, the inquiry is
broader. In that circumstance, the inquiry is not only
upon what happened, but why it happened, and whether it
was a result of trial strategy, the negligence or
indifference of counsel, or any other factor that would
shed light upon the severity of the defect and why there
was no objection at trial. Thus, a palpable error claim
imposes a more stringent standard and a narrower focus
than does an ineffective assistance claim. Therefore, as a
matter of law, a failure to prevail on a palpable error
claim does not obviate a proper ineffective assistance
claim.
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Id. at 1. Recently, in Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009), the
Court reaffirmed the principle set forth in Martin.
The facts herein are distinguishable from those presented in Martin in
that the suppression issue was preserved. As such, a panel of this Court reviewed
the factual issues under an abuse of discretion standard, not the palpable error
standard, and determined that the trial court properly denied Appellant’s
suppression motion. Thus, Martin has no application to the instant case, and
Appellant was not entitled to relitigate the same claim under the guise of
ineffective assistance of counsel.
Notwithstanding, we find no merit in Appellant’s claim that counsel
rendered ineffective assistance during the suppression hearing. Appellant
repeatedly asserts that the search and seizure was improper because the arresting
officers had no probable cause to enter private property where his van was parked.
Yet, the record is devoid of any evidence that the property in question was, in fact,
privately owned and, if so, by whom. Appellant certainly does not claim
ownership. Nevertheless, he clearly believes that there is some significance that he
was parked on alleged private property that did not belong to him.
As the Commonwealth points out, Appellant has placed himself in the
tenuous position of arguing that he was a trespasser in the hopes of prevailing on
his claim that there was no probable cause for the search and seizure. However,
the law is clear that only the owner of the property has a right to privacy in the
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property in question and “one whose presence thereon is wrongful cannot invoke
the privacy of the premises searched.” Commonwealth v. Johnson, 420 S.W.2d
103 (Ky. 1967). See also Garcia v. Commonwealth, 185 S.W.3d 658 (Ky. App.
2006).
We conclude that Appellant’s claim of ineffective assistance of
counsel was conclusively refuted by the record. Sparks v. Commonwealth, 721
S.W.2d at 727. Accordingly, the trial court did not err in denying his RCr 11.42
motion without an evidentiary hearing. Stanford v. Commonwealth, 854 S.W.2d at
743-44.
The order of the Whitley Circuit Court denying Appellant’s motion
for post-conviction relief pursuant to RCr 11.42 is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Arnold Lindquist, Pro Se
LaGrange, Kentucky
Jack Conway
Attorney General of Kentucky
M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky
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