Opinion
NO. 2014-CA-000146-MR
02-06-2015
ROY M. CUTWRIGHT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Roy Matsou Cutwright Appellant Pro-Se LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN R. GRISE, JUDGE
ACTION NO. 10-CI-00836
OPINION
AFFIRMING
BEFORE: COMBS, JONES, AND MAZE, JUDGES. COMBS, JUDGE: Roy Matsou Cutwright appeals an order of the Warren Circuit Court denying the motion that he filed pursuant to Kentucky Rule[s] of Criminal Procedure ("RCr") 11.42. After our review, we affirm.
On October 20, 2010, Cutwright was indicted on a charge of assault in the first degree. Two months later, the grand jury issued a second indictment charging him with being a persistent felony offender in the first degree (PFO I). Upon the advice of counsel, Cutwright agreed to plead guilty to the assault charge in exchange for the prosecutor's recommendation to the court that he be sentenced to a term of fifteen-years on the assault charge and that the PFO I charge be dismissed.
On February 11, 2011, in a written statement signed in open court, Cutwright indicated that he intended to plead guilty to the assault charge because he was guilty of the crime. He declared that his plea was being made freely, knowingly, intelligently, and voluntarily, and that he had been adequately represented by counsel. During his colloquy with the court, Cutwright admitted that he had stabbed his former wife "two or three times." When asked whether he had intended to seriously injure her, Cutwright responded, "Yes, your Honor, I stabbed her with a knife." He also indicated that he believed that it was in his best interests to plead guilty rather than to face a potential life sentence. On April 27, 2011, Cutwright was sentenced in accordance with the plea agreement.
On October 7, 2013, Cutwright, pro se, filed a motion to vacate, set aside or correct sentence pursuant to the provisions of RCr 11.42. In his motion, Cutwright claimed that he had not received effective assistance of counsel prior to the entry of his plea and that he had not entered the plea knowingly, intelligently, and voluntarily. The trial court denied Cutwright's motion without conducting an evidentiary hearing.
On appeal, Cutwright contends that the trial court erred by denying his motion and by failing to conduct an evidentiary hearing. We disagree.
In order to prevail on a claim of ineffective assistance of counsel, the movant must show that his counsel's performance was deficient and that, but for the deficiency, the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Where a guilty plea has been entered, the movant must show that his counsel's performance so seriously affected the case that, but for the deficiency, he would not have plead guilty but instead would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
In Centers v. Commonwealth, 799 S.W.2d 51, 54 (Ky.App.1990), we held that "[i]n determining the validity of guilty pleas in criminal cases, the plea must represent a voluntary and intelligent choice among the alternative course of action open to the defendant." (Citations omitted). Additionally, representations made by a defendant in open court "constitute a formidable barrier in any subsequent collateral proceedings." Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977). The trial court is required to conduct an evidentiary hearing pursuant to the provisions of RCr 11.42 only where the motion raises a material issue of fact that cannot be determined on the face of the record.
Cutwright contends that his attorney was ineffective for failing to conduct a more thorough investigation before recommending that he accept the Commonwealth's plea offer since the evidence was insufficient to support a conviction for first-degree assault. He alleges that if he had known the elements of the offense, he would not have plead guilty but would have insisted on going to trial. However, the record on its face refutes these claims.
Pursuant to the separate indictments, the Commonwealth intended to prosecute Cutwright not only for first-degree assault but also as a persistent felony offender. Consequently, Cutwright faced a maximum punishment of life imprisonment. See Kentucky Revised Statute[s] (KRS) 532.080(6)(a). He would not have become eligible for parole before serving twenty-year's imprisonment. See KRS 439.3401(2).
Furthermore, as the trial court observed, the record indicates that the evidence of Cutwright's guilt was overwhelming. If the matter had proceeded to trial, the evidence would have included the testimony of the arresting officer whose citation indicated that the victim: had been cut in her chest three times; had sustained defensive wounds to her hands; had suffered a serious wound to her right forearm that extended fully up to her bicep; and had suffered a cut to her left bicep that caused an arterial bleed so severe that the victim's car was covered in blood -- as was Cutwright. The victim was immediately rushed to a trauma unit. Her medical records indicate that she had suffered massive blood loss and had to undergo emergency surgery in order that vein tissue from her groin could be grafted onto the severed artery. There was at least one eyewitness to the crime, and Cutwright confessed to the stabbing at the scene.
"In order to be valid, a guilty plea in a criminal case must represent a meaningful choice between the probable outcome at trial and the more certain outcome offered by the plea agreement." Vaughn, 258 S.W.3d 435, 439 (Ky.App.2008). See also North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). In light of the uncertainties that Cutwright faced at trial, including convincing proof of his guilt and the possibility of a life sentence if he were convicted, accepting the plea offer appears to have been a meaningful choice indeed.
Cutwright failed to make even a threshold showing that defense counsel's performance was deficient in any manner. The record establishes that defense counsel's advice to accept the plea was quite reasonable. Therefore, an evidentiary hearing was not required in this case. The trial court properly rejected Cutwright's motion without conducting an evidentiary hearing.
The order of the Warren Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Roy Matsou Cutwright
Appellant Pro-Se
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky