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Johnston v. Commonwealth3/14/2003
NOT TO BE PUBLISHED
OPINION AFFIRMING
David Lee Johnston appeals from an order of the Jefferson Circuit Court denying his RCr 11.42 motion to vacate his seven-year sentence for fourth-offense driving under the influence (DUI-4) and second-degree persistent felony offender (PFO II). We affirm.
As a result of an incident which occurred on June 4, 1998, Johnston was indicted by a Jefferson County grand jury on August 12, 1999. He was charged in the indictment with DUI-4, driving on a suspended or revoked license, and first-degree PFO (PFO I). As a result of a plea bargain agreement, the driving on a suspended or revoked license charge was dismissed, the PFO I charge was amended to PFO II, and the enhanced sentence on the DUI-4 charge was set at seven years in prison, to run consecutively with a one-year sentence for escape. The final judgment was entered on May 15, 2000.
On September 25, 2000, Johnston filed a motion to vacate or set aside the judgment pursuant to RCr 11.42. An evidentiary hearing was held, and Johnston was present together with his attorney. On September 7, 2001, the circuit court entered an order denying Johnston's motion. This appeal followed.
Johnston's first argument is that the trial court was biased and prejudiced against him, thereby depriving him of a fair hearing and other constitutional rights. In support of his argument, Johnston asserts that the trial judge failed to address all the issues in the hearing and also displayed bias by offering a personal observation as to Johnston's competency.
In the trial court's order denying Johnston's RCr 11.42 motion, the court stated that Johnston's trial counsel was not deficient in representing Johnston even though counsel did not raise the issue of Johnston's competency. The court reasoned that counsel had no reason to raise the issue. The court further noted that it had several encounters with Johnston in the past and found no reason for the issue being raised.
Johnston argues that neither the circuit judge nor his trial counsel were medical experts and that these references in the order denying his motion indicated the court's bias. Further, Johnston maintains that the court was biased since it did not rule on his double jeopardy argument.
We reject Johnston's argument because there is no evidence of bias or prejudice. First, the statements by the court in its order denying Johnston's motion are simply its explanation of why it was not persuaded that trial counsel rendered ineffective assistance. Second, the court did not address the double jeopardy issue because Johnston's attorney at the hearing told the court that he was choosing to focus on the claim regarding the failure of trial counsel to file a motion for a pretrial psychiatric evaluation. We also note that the issue of bias or prejudice was not raised until this appeal.
Johnston's second argument is that the circuit court erred in not determining that his trial counsel rendered ineffective assistance by not moving for a mental competency examination prior to trial. In support of the argument, Johnston states that he is a chronic alcoholic and that he was diagnosed as suffering from alcohol dependence and a major depressive disorder by a mental health facility in Maumee, Ohio, only one month before the indictment was issued. Johnston asserts that these facts should have put his counsel on notice that a mental evaluation should have been ordered to determine his competency to enter a guilty plea.
We reject this argument, also. Johnston has not convinced this court that alcohol dependence and depression rendered him incompetent to enter a guilty plea. Furt
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