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Story v. Commonwealth11/19/2004
AFFIRMING
Facing twenty years to life in prison on each of two wanton murder charges, Donald Story opted to forego a jury trial and, instead, take the Commonwealth's offer to plead guilty and receive two twenty-year sentences on the wanton murder charges and a six-month sentence on second-offense DUI, all to run concurrently for a maximum of twenty years. A year later, he moved to vacate or set aside the judgment, claiming his lawyer was ineffective for a variety of reasons. Because there is insufficient evidence to support these ineffective assistance of counsel claims, we affirm the circuit court's denial of Story's motion.
On July 2, 2000, Story drove a van head on into another vehicle. The passengers in the other vehicle, Odis Rogers, and his mother, Irene Rogers, were both killed. Story himself was seriously injured in the accident. From the accident scene, Story was taken to the hospital in Beattyville and then transported by helicopter to the University of Kentucky Medical Center for treatment. Upon arrival at U. K., staff performed routine diagnostic procedures, which included tests that revealed the presence of cocaine in Story's urine and a blood alcohol level of .264 g/ml.
On September 6, 2000, the grand jury indicted Story on two counts of wanton murder, second-offense DUI, driving on a suspended license, driving without insurance, and driving with expired registration. Story received appointed counsel. During the course of pretrial proceedings, defense counsel twice moved to continue the trial because discovery from the Commonwealth was incomplete. Both continuance motions were granted.
At a pretrial conference five days before the scheduled jury trial, Story chose to accept a plea agreement offered by the Commonwealth. He pled guilty to two counts of wanton murder and one count of second-offense DUI in exchange for the Commonwealth's recommendation of two concurrent twenty year sentences for the murder charges and a concurrent six-month sentence for the DUI charge. All remaining charges were dropped. Following a proper plea colloquy, the circuit court accepted Story's guilty plea. The court imposed the sentence in accordance with the plea agreement.
Almost a year later, Story filed an RCr 11.42 motion to vacate, set aside, or correct his judgment and sentence. He also moved for an evidentiary hearing and for appointment of counsel. He claimed that his guilty plea was "constitutionally null and void" because it was "consummated under the advice and consent of incompetent and ineffective counsel." The circuit court denied Story's motions. This appeal followed.
The presumption on appeal is that counsel was effective. The United States Supreme Court outlined the requirements for sustaining an allegation of ineffective counsel in Strickland v. Washington. The test requires the movant to prove two prongs. He must first prove counsel's performance was deficient and, second, that the deficient performance prejudiced the defense. If the movant is unable to prove both elements, "it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable."
The Strickland test was deemed applicable to claims of ineffective assistance of counsel arising from guilty pleas in Hill v. Lockhart. The Court held that the first prong of the Strickland test was "nothing more than a restatement of the standard of attorney competence" while the "prejudice" requirement "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." When a court reviews a claim of ineffective assistance of counsel, the proper inquiry is "whe
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