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Gribbons v. Commonwealth11/24/2004
AFFIRMING
George Gribbons brings this appeal from a July 18, 2003, Order of the Casey Circuit Court. Gribbons was convicted of wanton murder and sentenced to forty years' imprisonment. The Kentucky Supreme Court affirmed his conviction. Gribbons, subsequently, filed a Motion to Vacate Judgment and Sentence based on claims of ineffective assistance of counsel and judicial bias. He also filed a motion for an evidentiary hearing and appointment of counsel. The circuit court denied Gribbons's motions. We affirm.
SUMMARY BACKGROUND
Gribbons was indicted in September 2000 and charged with the intentional murder of Jerry Lee Evans. The indictment stemmed from an incident in which Gribbons fired a shotgun into a trailer he knew to be occupied by Evans and Gribbons's ex wife, Arlene. One of the shots fired by Gribbons struck and killed Evans.
Prior to trial, the Commonwealth made a motion to amend the indictment to include the charge of wanton murder. The court granted the Commonwealth's motion, and the indictment was revised to include both the intentional murder and the wanton murder charges. Although defense counsel requested a continuance, the request was denied. The jury convicted Gribbons of wanton murder and he was sentenced accordingly.
Gribbons appealed his conviction to the Kentucky Supreme Court on grounds that the trial court erroneously allowed the Commonwealth to amend the indictment. On February 20, 2003, the Supreme Court affirmed Gribbons's conviction in an unpublished opinion.
Gribbons subsequently filed a Motion to Vacate Judgment and Sentence pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. He later filed a motion for an evidentiary hearing and appointment of counsel. The Casey Circuit Court denied his motions on grounds that his claims were without merit. This appeal follows.
INNEFECTIVE ASSISTANCE OF COUNSEL
Gribbons first argues ineffective assistance of counsel. Gribbons makes two allegations: first, counsel failed to conduct an independent investigation of his case prior to trial and, therefore, did not prepare a defense to the wanton murder charge; and, second, counsel failed to properly consult with Gribbons regarding trial strategy. We disagree.
The presumption on appeal is that counsel was effective. It is not this Court's duty to "turn back the clock and retry cases in an effort to second-guess what counsel should have or should not have done at the time." Rather, "the burden is upon the accused to establish convincingly that he was deprived of some substantial right . . . ."
The United States Supreme Court outlined the requirements for sustaining a claim of ineffective counsel in Strickland v. Washington. The test requires a movant to prove two prongs. He must first "show that counsel's performance was deficient," and, second, "that the deficient performance prejudiced the defense." The proof must be sufficient to establish "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."
If the movant is unable to prove both prongs of the Strickland test, "it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." This test does not require that a defendant be provided with "errorless counsel." Rather, counsel should be "reasonably likely to render and rendering reasonably effective assistance."
Gribbons first alleges counsel failed to conduct a sufficient pre-trial investigation and, therefore, did not anticipate nor prepare for the wanton murder charge. In suppo
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