Opinion
NO. 2011-CA-002200-MR
02-01-2013
RICKY ALLEN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Ricky T. Allen, Pro Se West Liberty, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky James Havey Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE GREGORY A. LAY, JUDGE
ACTION NO. 10-CR-00039
OPINION
AFFIRMING
BEFORE: CAPERTON, DIXON, AND TAYLOR, JUDGES. DIXON, JUDGE: Ricky Allen appeals an order of the Laurel Circuit Court denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion to vacate his conviction and sentence. Finding no error, we affirm.
On January 20, 2010, Ricky Allen was on trial in Laurel Circuit Court for burglary and theft charges. Allen was incarcerated at the time of his trial, and he was in the custody of Deputy Keith Guidi while he was in the courtroom. Following jury selection, Allen met privately with his attorney in an empty jury room near the courtroom. Allen excused himself to get a drink of water, and then he walked out of the courthouse undetected. Allen was apprehended on January 26, 2010, and he was subsequently indicted for second-degree escape.
On July 19, 2010, Allen stood trial on the escape charge. Allen testified in his own defense, and he admitted that he made a quick decision to leave the courthouse during the recess. Allen believed he was not going to have a fair trial in the burglary case, and he testified that he walked away from the courthouse to avoid being convicted for crimes he did not commit. The jury found Allen guilty of second-degree escape and being a persistent felony offender in the first-degree. Pursuant to the jury's recommendation, the trial court sentenced Allen to twenty years' imprisonment. Shortly thereafter, Allen, pro se, filed an RCr 11.42 motion in the trial court to vacate his conviction, and he filed a motion in the Kentucky Supreme Court to dismiss his direct appeal. On June 15, 2011, the Supreme Court granted Allen's motion to dismiss his direct appeal; thereafter, the trial court rendered an order denying Allen's RCr 11.42 motion without an evidentiary hearing. Allen now appeals the denial of his post-conviction motion.
In an RCr 11.42 proceeding, an evidentiary hearing 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). "Conclusionary allegations which are not supported by specific facts do not justify an evidentiary 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), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). "A hearing is also unnecessary where the allegations, even if true, would not be sufficient to invalidate the conviction." Harper v. Commonwealth, 978 S.W.2d 311, 314 (Ky. 1998).
We evaluate claims of ineffective assistance of counsel pursuant to the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To establish ineffective assistance, a movant must show that counsel made serious errors amounting to deficient performance and that those alleged errors prejudiced the defense. 466 U.S. at 687, 104 S.Ct. at 2064, accord Gall v. Commonwealth, 702 S.W.2d 37, 39-40 (Ky. 1985).
Allen first argues that the trial court denied him the right to call witnesses in his defense and that his attorney was ineffective for failing to object to the court's ruling. Our review indicates that Allen failed to specifically assert this argument in his RCr 11.42 motion; consequently, it is not preserved for appellate review. Brister v. Commonwealth, 439 S.W.2d 940, 941 (Ky. 1969).
Allen next contends that counsel rendered ineffective assistance by failing to object to Deputy Guidi's testimony regarding the circumstances of Allen's escape from custody. Specifically, Deputy Guidi asserted that Allen's girlfriend asked him to relay a question to the judge and that Allen was gone when Guidi returned from the judge's chambers. As the trial court noted in its order, the record shows that counsel objected to Guidi's testimony on this issue, and the objection was sustained. This claim of ineffective assistance is without merit and is refuted by the record.
Allen also alleges trial errors regarding prosecutorial misconduct and perjured testimony. We decline to review these issues pursuant to our established RCr 11.42 procedure, as these errors could have been resolved on direct appeal. See Commonwealth v. Basnight, 770 S.W.2d 231, 237 (Ky. App. 1989).
Finally, Allen contends the court erred by denying his pro se pretrial motion to discharge his attorney and appoint new counsel. He also alleges his counsel rendered generally ineffective assistance during trial.
The trial court's ruling regarding appointment of counsel is not properly before us, as it was not raised in Allen's RCr 11.42 motion. Brister, 439 S.W.2d at 941. Furthermore, Allen's broad allegations regarding counsel's performance during trial are clearly refuted by the record. Despite Allen's dissatisfaction with his attorney, she vigorously pursued his defense in this case. After careful review, we conclude that Allen's claims regarding ineffective assistance of counsel are refuted by the record; accordingly, the trial court properly denied the RCr 11.42 motion without an evidentiary hearing.
For the reasons stated herein, we affirm the judgment of the Laurel Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Ricky T. Allen, Pro Se
West Liberty, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
James Havey
Assistant Attorney General
Frankfort, Kentucky