Smith v. Commonwealth

438 S.W.3d 392, 2014 Ky. App. LEXIS 124, 2014 WL 3537052
CourtCourt of Appeals of Kentucky
DecidedJuly 18, 2014
DocketNo. 2012-CA-001742-MR
StatusPublished
Cited by5 cases

This text of 438 S.W.3d 392 (Smith v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Commonwealth, 438 S.W.3d 392, 2014 Ky. App. LEXIS 124, 2014 WL 3537052 (Ky. Ct. App. 2014).

Opinion

[393]*393 OPINION

LAMBERT, Judge:

Gene M. Smith has appealed from the September 20, 2012, order of the Jefferson Circuit Court denying his motion for post-conviction relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. Because the trial court did not rule on one of Smith’s claims in his RCr 11.42 motion, we vacate the order on appeal.

For our recitation of the facts, we shall rely upon the Supreme Court of Kentucky’s opinion from Smith’s direct appeal:

On September 8, 2008, Appellant, Gene Smith, and two accomplices, Brandon Hooten and Ray Easton, robbed a Cash Express store in Louisville. They were arrested and indicted on three counts of robbery in the first degree. Hooten and Easton both accepted plea agreements in exchange for their testimony against Appellant.
At trial, Hooten testified that he met Appellant three or four days before the robbery. Appellant proposed a scheme to rob the Cash Express, and Hooten agreed to drive to the store. After looking over the scene, the pair decided to find a third person to assist in the venture. They found Ray Easton, Appellant’s cousin, who joined them. The three returned to the area of the Cash Express, where Hooten and Appellant changed into dark clothing.
Easton remained in the car while Hooten and Appellant covered their faces and entered the store. They ordered everyone to the ground and collected cash and cell phones from the Cash Express employees and two customers. Easton drove Hooten’s car after they fled the building. Both characterized Appellant as the mastermind of the crime, though Hooten alone claimed that he participated in the crime only because he was afraid of Appellant, who possessed a gun.
Unbeknownst to any of them, George Givens, an off-duty firefighter, noticed Hooten and Appellant entering the store with their faces covered. Becoming concerned, Givens waited in his van until the men exited and drove away. He then followed the trio and called the police. Easton and Hooten testified that they realized they were being followed shortly after leaving the Cash Express parking lot. After following Hooten’s car for several minutes, Givens observed a gun being thrown out the passenger-side window. Officers eventually arrived and arrested all three men. Givens directed police to the gun.
The gun underwent testing by the Kentucky State Police. Firearms and toolmark examiner, Leah Collier, performed the testing and testified that the gun was not functioning properly because the slide was jammed. She could not speculate as to how or when the slide had been damaged.
The jury found Appellant guilty of three counts of robbery in the first degree and of being a persistent felony offender in the second degree. He was sentenced to imprisonment for twenty-five years on each count, to run concurrently.

Smith v. Commonwealth, 2010 WL 2471513 at *1 (2009-SC-000364-MR) (Ky. June 17, 2010).

On direct appeal, the Supreme Court affirmed the judgment, rejecting Smith’s arguments that he was entitled to an instruction on second-degree robbery and that the trial court improperly excluded a video of co-defendant Brandon Hooten performing a rap song pursuant to the Commonwealth’s objection. Smith later, filed a pro se motion to vacate his sentence pursuant to Kentucky Rules of Civil Proce[394]*394dure (CR) 60.02, alleging prosecutorial misconduct during closing arguments. The trial court denied Smith’s motion to vacate, as well as his motions for appointment of counsel and for an evidentiary hearing, and this Court affirmed that ruling in an opinion rendered June 22, 2012, because Smith failed to raise this issue on direct appeal or first seek RCr 11.42 relief.1

On August 27, 2012, Smith filed a pro se motion to vacate pursuant to RCr 11.42. He also moved for appointment of counsel and for an evidentiary hearing. In his motion, Smith alleged ineffective assistance of his trial counsel due to a conflict of interest arising from joint representation of all three co-defendants by attorneys from the same public defender’s office. He stated that the waiver of dual or multiple representation form was not explained to him by his attorney or the court. Smith explained that a full division of loyalties arose between him and his co-defendants when they admitted their guilt and that his attorney was not properly prepared for trial due to the plea negotiations taking place with his co-defendants. Smith also argued that his counsel failed to investigate and present evidence supporting leniency in the sentencing phase, failed to adequately prepare for trial by conducting a thorough investigation of the facts and possible defenses or by obtaining experts, failed to adequately consult with him, and failed to prepare an adequate defense strategy. Finally, Smith argued that his appellate counsel was ineffective in failing to present meritorious issues to the Supreme Court in his direct appeal.

The trial court denied Smith’s motions for RCr 11.42 relief, for an evidentiary hearing, and for appointment of counsel by orders entered September 20, 2012. The court stated that Smith had waived his conflict of interest claim “by explicitly executing a waiver of dual or multiple representation prior to the commencement of the trial.” The court also rejected Smith’s ineffective assistance of counsel arguments, stating that a “[rjeview of the record indicates that trial counsel did an adequate job during both the guilt and penalty phase of the trial.” The court later denied Smith’s motion for a default judgment due to the Commonwealth’s failure to respond to his RCr 11.42 motion. This appeal from the order denying his motion for RCr 11.42 relief and for an evidentiary hearing now follows.

On appeal, Smith continues to argue that he is entitled to RCr 11.42 relief and should have been afforded an evidentiary hearing.

The applicable standard of review in RCr 11.42 post-conviction actions is as follows: Generally, in order to establish a claim for ineffective assistance of counsel, a movant must meet the requirements of a two-prong test by proving that: 1) counsel’s performance was deficient and 2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Gall v. Commonwealth, 702 S.W.2d 87 (Ky.1985), cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986). If an evidentiary hearing is not held, as is the present case, our 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.” Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky.1967). [395]*395See also Sparks v. Commonwealth, 721 S.W.2d 726, 727 (Ky.App.1986).

Before we may reach the merits of Smith’s appeal, we must address the trial court’s failure to rule on Smith’s ineffective assistance of appellate counsel claim (IAAC claim). In his pro se

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Brian Ferguson v. Commonwealth of Kentucky
Court of Appeals of Kentucky, 2026
Ray William Powers v. Commonwealth of Kentucky
Court of Appeals of Kentucky, 2025
Terrence A. Sims v. Commonwealth of Kentucky
Court of Appeals of Kentucky, 2024
Anthony Ball v. Commonwealth of Kentucky
Court of Appeals of Kentucky, 2024
Justin Hartnett v. Commonwealth of Kentucky
Court of Appeals of Kentucky, 2023
Frederick L. Miller v. Commonwealth of Kentucky
Court of Appeals of Kentucky, 2022

Cite This Page — Counsel Stack

Bluebook (online)
438 S.W.3d 392, 2014 Ky. App. LEXIS 124, 2014 WL 3537052, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-commonwealth-kyctapp-2014.