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Ault v. Commonwealth4/1/2005
would rise to the level of ineffective assistance. Therefore, the second prong of the test in Hill v. Lockart did not come into play. Second, we are not persuaded that the court applied the wrong standard since it had made reference to the correct standard earlier in its opinion and order.
Ault's final argument is that the court erred by not permitting him to introduce evidence of Radolovich's "pattern of puffing." Ault contends that the court denied his Sixth Amendment right to confront and cross-examine Radolovich concerning untrue testimony Radolovich had given in another case involving an allegation of ineffective assistance of counsel. Although the circuit court would not allow it, Ault sought to attack Radolovich's credibility by cross-examining him on those collateral matters. Ault contends that the alleged fact that Radolovich exaggerated his legal accomplishments in another case would have impeached his testimony in this case concerning his actions in representing Ault. We agree with the circuit court that the matter was not relevant to Radolovich's testimony in this case. We fail to see how the fact that Radolovich may have lied under oath in an earlier case could have impeached his testimony in this case. Furthermore, we are unaware of any authority supporting the admission of evidence to prove a "pattern of puffing."
Finally, even if we assume ineffective assistance of counsel by Radolovich under the first prong of Hill v. Lockhart, we find no error or abuse of discretion in the trial court's determination that there is no reasonable probability that Ault would have insisted on going to trial but for counsel's alleged errors. The facts of the case supported a murder charge. Murder carries a sentence of twenty years to life. However, under the terms of the plea agreement, the murder charge was reduced to second-degree manslaughter, which carries a sentence of ten to twenty years. Considering that Ault received the minimum sentence of ten years for that crime and a total sentence of thirteen years, we agree that there is no reasonable probability that Ault would have elected to go to trial absent alleged errors of counsel.
The opinion and order of the Jefferson Circuit Court denying Ault's RCr 11.42 motion is affirmed.
ALL CONCUR.
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