Sidney Smith v. Commonwealth of Kentucky ( 2022 )

RENDERED: DECEMBER 2, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0271-MR
SIDNEY SMITH APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
v. HONORABLE KATHLEEN S. LAPE, JUDGE
ACTION NO. 18-CR-00785
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: DIXON, GOODWINE, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Sidney Smith appeals from an order of the Kenton
Circuit Court which denied his Kentucky Rules of Criminal Procedure (RCr) 11.42
motion alleging ineffective assistance of counsel. The order also denied his motion
for a copy of the grand jury proceedings in his case. We find no error and affirm.
FACTS AND PROCEDURAL HISTORY
On March 27, 2018, Appellant sold a quantity of fentanyl to a police
informant in Kenton County. On March 28, 2018, and April 4, 2018, Appellant
and the informant traveled into Ohio together. Once in Ohio, Appellant sold
additional quantities of fentanyl to the informant. On June 28, 2018, Appellant
was indicted for three counts of trafficking in a controlled substance in the first
degree,1 two counts of importing fentanyl,2 and for being a persistent felony
offender in the first degree.3 On April 11, 2019, Smith decided to resolve his case
pursuant to a plea agreement that dismissed the two importing charges and
recommended a sentence of ten years. Appellant pleaded guilty according to the
agreement on April 3, 2019, and was sentenced on June 17, 2019.
On April 7, 2020, Appellant filed a motion to obtain a transcript or
recording of the grand jury proceedings in his case. On June 1, 2020, Appellant
filed his RCr 11.42 motion alleging ineffective assistance of counsel. Appellant
argued that his trial counsel was ineffective because counsel failed to advise him
that Kentucky did not have jurisdiction to prosecute him for two of the trafficking
charges. More specifically, Appellant claimed that because he sold some of the
1
Kentucky Revised Statutes (KRS) 218A.1412.
2
KRS 218A.1410.
3
KRS 532.080(3).
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fentanyl to the informant in Ohio, Ohio was the only jurisdiction that could
prosecute him for two of the charges. On February 2, 2022, the trial court denied
Appellant’s RCr 11.42 motion and his motion seeking a recording of the grand jury
proceedings. This appeal followed.
ANALYSIS
We will first address Appellant’s argument regarding his allegation of
having ineffective assistance of counsel. Generally, to prevail on a claim of
ineffective assistance of counsel, Appellant must show two things:
First, the defendant must show that counsel’s
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense.
This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d
674 (1984). “[T]he proper standard for attorney performance is that of reasonably
effective assistance.” Id.An error by counsel, even if professionally
unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error had no
effect on the judgment. The purpose of the Sixth
Amendment guarantee of counsel is to ensure that a
defendant has the assistance necessary to justify reliance
on the outcome of the proceeding. Accordingly, any
deficiencies in counsel’s performance must be prejudicial
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to the defense in order to constitute ineffective assistance
under the Constitution.
Id. at 691-92, 104 S. Ct. at 2066-67 (citations omitted). “It is not enough for the
defendant to show that the errors had some conceivable effect on the outcome of
the proceeding.” Id. at 693, 104 S. Ct. at 2067. “The defendant must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.
Ct. at 2068. Additionally, “a hearing is required 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).
In addition, because this case involves a guilty plea, we must examine
the claim of ineffective assistance of counsel a little differently.
A showing that counsel’s assistance
was ineffective in enabling a defendant to
intelligently weigh his legal alternatives in
deciding to plead guilty has two
components: (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.
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Evaluating the totality of the circumstances
surrounding the guilty plea is an inherently factual
inquiry which requires consideration of “the accused’s
demeanor, background and experience, and whether the
record reveals that the plea was voluntarily made.”
While “[s]olemn declarations in open court carry a strong
presumption of verity,” “the validity of a guilty plea is
not determined by reference to some magic incantation
recited at the time it is taken[.]” The trial court’s inquiry
into allegations of ineffective assistance of counsel
requires the court to determine whether counsel’s
performance was below professional standards and
“caused the defendant to lose what he otherwise would
probably have won” and “whether counsel was so
thoroughly ineffective that defeat was snatched from the
hands of probable victory.” Because “[a] multitude of
events occur in the course of a criminal proceeding which
might influence a defendant to plead guilty or stand
trial,” the trial court must evaluate whether errors by trial
counsel significantly influenced the defendant’s decision
to plead guilty in a manner which gives the trial court
reason to doubt the voluntariness and validity of the plea.
Bronk v. Commonwealth, 58 S.W.3d 482, 486-87 (Ky. 2001) (citations omitted).
After considering the arguments of the parties, we conclude that the
trial court did not err in denying Appellant’s motion. KRS 218A.010(56) defines
“traffic” as “to manufacture, distribute, dispense, sell, transfer, or possess with
intent to manufacture, distribute, dispense, or sell a controlled substance[.]” Here,
even though Appellant sold some of the fentanyl in Ohio, he still possessed the
controlled substance in Kentucky and intended to sell it to the informant. In other
words, Appellant possessed the fentanyl with intent to sell while he was in
Kentucky. This meets the definition of traffic; therefore, Appellant was properly
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charged with three counts of trafficking in a controlled substance and there were no
jurisdiction irregularities.
In addition, emails contained in the record and statements made by
Appellant on the record indicate that Appellant and his trial counsel both
recognized the potential jurisdictional argument; however, they ultimately chose
not to pursue it.
We now move to Appellant’s motion for the recording of the grand
jury proceedings. RCr 5.16(3) states that “any person indicted by the grand jury
shall have a right to procure” a copy of the transcript or video recording of the
grand jury proceedings. We believe the trial court also properly denied this
motion. The case of Wagner v. Commonwealth, 247 S.W.3d 540, 542 (Ky. App.
2008), states that RCr 5.16(3) does not mandate grand jury transcripts or
recordings for post-conviction purposes. This is what occurred in this case and
Wagner is controlling.
CONCLUSION
Based on the foregoing, we affirm the judgment of the trial court.
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Sidney D. Smith, pro se Daniel Cameron
Burgin, Kentucky Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
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