ACREE, Chief Judge.
Adkins appeals the Ohio Circuit Court's September 9, 2011 order denying his motion seeking relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 due to ineffective assistance of counsel. We affirm.
In January 2006, two juvenile females, Victim 1 and Victim 2, age fifteen and sixteen, respectively, informed Kentucky State Police Detective Bryan Whittaker that, in October 2004, Adkins took nude, sexually explicit photographs of them. The girls also claimed that Adkins had provided them with alcohol and had sexual intercourse with Victim 2 and another minor female, Victim 3, on separate occasions. Detective Whittaker set up a controlled telephone call between Adkins and Victim 1. During the conversation, Adkins neither denied nor confirmed the allegations, but expressed concern that Victim 3 was going to tell her mother about the incident.
On January 25, 2006, at 10:45 a.m., Detective Whittaker, with the help of the Ohio County Attorney, submitted an affidavit to Judge Browning, an Ohio District Court judge, requesting a warrant authorizing a search of Adkins' home. The affidavit memorialized the results of Whittaker's investigation, including the victims' statements, and a synopsis of the controlled telephone conversation. The affidavit also contained Detective Whittaker's representation that,
(R. at 32). Detective Whittaker could not recall whether he went to Judge Browning's house to pick up the warrant or if Judge Browning faxed it to him. In any event, Judge Browning promptly issued the warrant. At approximately 1:00 p.m., Detective Whittaker and other officers traveled to Adkins' residence where they discovered numerous Polaroid photographs of naked juvenile females, some of which included Adkins.
In February 2006, an Ohio County grand jury indicted Adkins on two counts of first-degree rape, two counts of first-degree unlawful transaction with a minor, twenty counts of promoting a sexual performance by a minor, and twenty counts of use of a minor in a sexual performance. Following several continuances, Adkins' case was scheduled for a jury trial on November 5, 2008. On October 30, 2008, Adkins moved to suppress evidence seized from his home during the execution of the search warrant. A suppression hearing was held, after which the circuit court denied Adkins' motion. On the morning of trial, Adkins accepted the Commonwealth's plea offer of a fifteen-year sentence in exchange for pleading guilty to two counts of first-degree unlawful transaction with a minor and five counts of second-degree unlawful transaction with a minor. The Commonwealth agreed to dismiss the remainder of the indictment.
Prior to accepting Adkins' plea, the circuit court conducted a standard plea colloquy pursuant to Boykin v. Alabama.
Immediately thereafter, the Commonwealth asked the circuit court to reiterate to Adkins that he would be required to register as a sex offender. Adkins' counsel stated that he had advised Adkins that he "wasn't positive if [Adkins] had to register or not" but did explain to Adkins that "if he was found guilty of any of these charges by the jury today it would have the same effect as the plea in so far as registration would be concerned." The circuit court then explained the sex-offender registration requirements to Adkins and Adkins stated he understood those requirements. The circuit court scheduled final sentencing for January 22, 2009.
Prior to final sentencing, Adkins filed several pro se motions, including a motion to withdraw his guilty plea. Therein, Adkins argued his plea was not entered knowingly, intelligently, and voluntarily due to ineffective assistance of counsel, prosecutorial misconduct, and intimidation. The circuit court held a hearing on the motion, after which the circuit court denied it.
Adkins appealed the denial of his motion to withdraw his guilty plea to this Court, which affirmed. Adkins v. Commonwealth, 2009-CA-000575-MR, 2010 WL 4879581 (Ky. App. Nov. 12, 2010). Thereafter, Adkins filed an RCr 11.42 motion to vacate his conviction, arguing his trial counsel had been ineffective. He also requested an evidentiary hearing, and filed a separate motion requesting that the circuit court disclose "any possible basis for judicial disqualification before the court reviews or renders a decision on [Adkins'] pending RCr 11.42 motion." (R. at 30). The court denied Adkins' motions without conducting a hearing.
Adkins raised a number of issues in his motion before the circuit court that he does not argue here. We address only the issues he raises on appeal. Additional facts will be discussed as needed.
Every defendant is entitled to reasonably effective — but not necessarily errorless — counsel. Fegley v. Commonwealth, 337 S.W.3d 657, 659 (Ky. App. 2011). In evaluating a claim of ineffective assistance of counsel, we apply the familiar "deficient-performance plus prejudice" standard first articulated in Strickland v. Washington, 466 U.S. 688, 689, 104 S.Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984). Hollon v. Commonwealth, 334 S.W.3d 431, 436 (Ky. 2010).
Under this standard, the movant must first prove that his trial counsel's performance was deficient. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. To establish deficient performance, the movant must show that counsel's representation "fell below an objective standard of reasonableness" such that "counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Commonwealth v. Tamme, 83 S.W.3d 465, 469 (Ky. 2002); Commonwealth v. Elza, 284 S.W.3d 118, 120-21 (Ky. 2009).
Second, the movant must prove that counsel's "deficient performance prejudiced the defense." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. When the movant has entered a guilty plea, the "prejudice" requirement "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L. Ed. 2d 203 (1985). To satisfy the "prejudice" component, the movant "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id.
Generally, we recognize "that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S. Ct. at 2066. For that reason, "[j]udicial scrutiny of counsel's performance [is] highly deferential." Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. In the course of our review, we must strive "to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id.
Adkins asserts the trial judge erred when he declined to disqualify himself from presiding over the RCr 11.42 proceedings. Adkins also alleges his trial counsel was deficient when he failed to: (1) challenge the "multiplicity and duplicity" of the indictment and prohibition against double jeopardy; (2) assert a speedy trial violation; and (3) properly prepare for the suppression hearing. Finally, Adkins claims his guilty plea was not entered knowingly and voluntarily.
Adkins first argues the trial judge violated his constitutional rights when he failed to disqualify himself at the onset of the RCr 11.42 proceedings. Adkins believes the trial judge was biased against him, thereby mandating disqualification, because the trial judge's bailiff's granddaughter was one of the alleged victims. In support of his allegation, Adkins points to Kentucky Supreme Court Rule 4.300, the Kentucky Code of Judicial Conduct, Canon 3(E)(1) which states that "[a] judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned."
In response, the Commonwealth points out no motion for recusal was ever filed by Adkins. The Commonwealth urges us to reject Adkins' argument on the ground that the circuit court cannot commit error by failing to do something it was never asked to do.
We agree with Adkins that the commentary to Cannon 3(E)(1) states that "[a] judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification." However, no such disclosure was necessary in this case; Adkins was clearly aware at the commencement of this RCr 11.42 proceeding of the connection, though tenuous, between the trial judge and the victim. Despite being armed with this knowledge, at no point did Adkins move for recusal or disqualification. And, we do not think the connection between the trial court judge and the victim was of such a degree that the judge's impartiality might reasonably be questioned, thereby mandating recusal sua sponte. See KRS
Adkins next contends he received ineffective assistance of counsel because counsel failed to file a motion to dismiss as insufficient Counts 1 — 20 and Counts 20 — 40 of Adkins' indictment. Adkins argues the indictment failed to fairly inform him of the charges against him. He also claims that the indictment violated his right against double jeopardy because it set forth multiple charges of the same offenses, but failed to factually differentiate those charges. Adkins maintains his trial counsel's failure to challenge the indictment on these grounds resulted in ineffective assistance of counsel.
The relevant portions of Adkins' indictment stated:
Under RCr 6.10(2), an indictment is "sufficient if it contains, a plain, concise and definite statement of the essential facts constituting the specific offense with which the defendant is charged." The indictment "need not contain any other matter not necessary to such statement[.]" Id. Furthermore, "[t]he notice pleading of the Rules of Criminal Procedure, unlike the fact pleading it replaced, does not require exact, precise details." Thomas v. Commonwealth, 931 S.W.2d 446, 449 (Ky. 1996). "An indictment is sufficient if it fairly informs the accused of the nature of the charged crime, without detailing the formerly `essential' factual elements, and `if it informs the accused of the specific offense with which he is charged and does not mislead him.'" Id. (citations omitted).
The indictment in this case adequately apprised Adkins of the criminal conduct he had to defend against. See Schrimsher v. Commonwealth, 190 S.W.3d 318, 325 (Ky. 2006) (requiring that an "indictment sufficiently apprise a defendant of the criminal conduct for which he is called to answer"). The indictment notified him of the specific offenses for which he was being charged. The indictment was not misleading. Further, the facts as alleged in the indictment fit the statutory definitions of Use of a Minor in a Sexual Performance, KRS 531.310, and Promoting a Sexual Performance by a Minor, KRS 531.320. Of course, had Adkins' case gone to trial, it would have been incumbent upon the Commonwealth to ensure "that the indictment and instructions together provide adequate specificity" not to impede Adkins' right against double jeopardy. Id.; Harp v. Commonwealth, 266 S.W.3d 813, 817 (Ky. 2008) ("[W]hen multiple offenses are charged in a single indictment, the Commonwealth must introduce evidence sufficient to prove each offense and to differentiate each count from the others, and the jury must be separately instructed on each charged offense." (Citation omitted)). But this case never reached that stage. Because we perceive no insufficiency in the indictment, trial counsel was not deficient when he chose not to challenge the indictment.
Assuming without deciding that counsel did err in failing to challenge the sufficiency of the indictment, we are unable to conclude "that there is a reasonable probability that, but for counsel's errors, [Adkins] would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59, 106 S. Ct. at 370. Even if counsel had secured dismissal of Counts 1 — 40 of the indictment, Adkins was still facing two counts of first-degree rape (a class B felony) and two counts of first-degree unlawful transaction with a minor (also a Class B felony). If convicted of these offenses, Adkins was facing a possible seventy-year (or more) prison sentence, KRS 532.020, and would have to serve 85% of that sentence before being parole eligible. See KRS 439.3401(1)(e), 3(a).
Under the plea agreement, all of the charges were dismissed except for five counts of second-degree unlawful transaction with a minor and two counts of first-degree unlawful transaction with a minor less than eighteen years of age, and Adkins was sentenced to fifteen years' imprisonment. Adkins need only serve 20% of that sentence before becoming parole eligible. Trial counsel secured Adkins a plea agreement that weighed heavily in his favor. We are not persuaded there is a "reasonable probability" Adkins would have proceeded to trial absent trial counsel's alleged error.
Adkins next claims his trial counsel was ineffective by failing to move for a speedy trial. Adkins asserts his right to a speedy trial under the Sixth Amendment was violated by the lengthy delay of two years and ten months between his indictment and the scheduled trial. Citing Bratcher v. Commonwealth, 151 S.W.3d 332 (Ky. 2004), Adkins argues this delay was "presumptively prejudicial."
Adkins was indicted on February 17, 2006. The matter was originally scheduled for trial on October 12, 2006. At Adkins' request, the trial was continued and rescheduled for December 13, 2006. Adkins' trial was subsequently delayed five more times, with trial dates in March 2007, October 2007, March 2008, July 2008, and finally November 5, 2008.
Before continuing, we pause to point that the issue before us is not whether Adkins is entitled to a new trial because his right to a speedy trial was debased, but whether Adkins' trial counsel was deficient for failing to assert and protect Adkins' right to a speedy trial. The record conclusively demonstrates that, in July 2008 during a pretrial conference, trial counsel emphasized Adkins' right to a speedy trial, expressed concern that the numerous delays were close to infringing upon this right, and requested that Adkins' trial occur as soon as feasibly possible. Thus, the proper issue before us is not whether Adkins' trial counsel moved for a speedy trial, but whether counsel moved in a timely manner. We tailor our discussion, where necessary, accordingly.
"When a speedy trial violation is raised on appeal, a reviewing court must consider four factors to determine if a violation occurred: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant's assertion of his right to a speedy trial; and (4) prejudice to the defendant." Goncalves v. Commonwealth, 404 S.W.3d 180, 198 (Ky. 2013) (citing Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and Bratcher, 151 S.W.3d at 344). No single factor is determinative. Miller v. Commonwealth, 283 S.W.3d 690, 702 (Ky. 2009).
We agree with Adkins that the two-year and ten-month delay between indictment and the final trial date was presumptively prejudicial. See Bratcher, 151 S.W.3d at 344 (eighteen-month delay in complex murder case was presumptively prejudicial). Accordingly, we must address the remaining factors. Goncalves, 404 S.W.3d at 199 ("Only presumptively prejudicial delays will trigger the speedy trial inquiry.").
The next factor examines the reasons for the delay. As referenced, Adkins' trial was continued and rescheduled no less than six times. The record is largely silent as to the reasons for the delay. There is no evidence, however, of a deliberate attempt by the Commonwealth to cause delay. At best, we surmise the parties presented neutral reasons for delay, "such as negligence or an overcrowded docket." Goncalves, 404 S.W.3d at 200. We further note that the first continuance was at Adkins' request due to a change in counsel. And, just prior to the March 2007 trial date, Adkins was charged with a new offense. The March 2008 trial date was continued because Adkins was tried before the current jury pool on the new offense in January 2008 and the jury pool would not change until July 1, 2008. Balancing the Commonwealth's neutral reasons for delay against Adkins' conduct causing delay, we find this factor does not weigh in either party's favor. See id.
As for the third element, as previously noted, in July 2008, Adkins' trial counsel indicated that any further delay would impede Adkins' right to a speedy trial and requested that Adkins' trial take place promptly.
Finally, we must gauge the extent by which the delay prejudiced Adkins.
Miller, 283 S.W.3d at 702 (citation omitted). Regarding the latter two elements, the Kentucky Supreme Court has stated that "[c]onclusory claims about the trauma of incarceration, without proof of such trauma, and the possibility of an impaired defense are not sufficient to show prejudice." Bratcher, 151 S.W.3d at 345.
In this case, Adkins was free on bond for a portion of the time between his indictment and trial. His bond was revoked on two occasions due to his inability to comply with the bond conditions. To the extent Adkins was incarcerated while awaiting trial, it was due to his own conduct. Thus, he did not suffer "oppressive pretrial incarceration."
Adkins also has failed to demonstrate how the delay caused him anxiety and concern. Instead, Adkins identifies numerous items which he claims caused him anxiety and concern, including public ridicule and prejudice, losing a high paying job, losing property, and losing family ties. However, these are clearly effects of being indicted on and eventually convicted of these criminal charges, not the delay. Notably absent is any proof of actual trauma from the delay.
Finally, Adkins asserts the delay impaired his defense because, of the twenty witnesses who could have testified on his behalf, only two were available in November 2008. Adkins fails to identify these witnesses or explain why they were not available at the time of trial. Importantly, "he does not give any details as to how the delay caused his witness to be unavailable." Miller, 283 S.W.3d at 702. A defendant must "demonstrate actual prejudice." Id.; Preston v. Commonwealth, 898 S.W.2d 504, 507 (Ky. App. 1995) ("The possibility of prejudice alone is not sufficient to support the position that speedy trial rights have been violated. It is the burden of the defendant to establish actual prejudice."). We agree with the Commonwealth that Adkins' speculative claim of prejudice on this basis is insufficient to tip the scale in Adkins' favor. Smith v. Commonwealth, 361 S.W.3d 908, 918 (Ky. 2012)("[S]peculative and generic claims are insufficient to support a claim of prejudice.").
In sum, we find no violation of Adkins' constitutional right to a speedy trial. Absent a constitutional violation, we cannot say Adkins' trial counsel rendered ineffective assistance of counsel when he failed to assert Adkins' right to a speedy trial between February 2006 and July 2008.
Adkins faults his trial counsel for failing to adequately prepare for the November 2008 suppression hearing. Adkins claims trial counsel was ineffective because he failed to: (i) challenge representations contained in Detective Whittaker's search-warrant affidavit; and (ii) challenge whether the search was conducted prior to the warrant being issued. We have reviewed the suppression hearing in its entirety and find this claim of ineffectiveness to be without merit.
Adkins believes Detective Whittaker made numerous misrepresentations in his affidavit in support of the search warrant. Specifically, Adkins asserts Detective Whittaker erroneously referred to Adkins as a pedophile, and distorted Adkins' conversation with Victim 1 during the controlled telephone call. Adkins faults his trial counsel for failing to call adequate attention to Detective Whittaker's alleged misrepresentations. However, during the suppression hearing, trial counsel heavily questioned the veracity of Detective Whittaker's affidavit statements. Trial counsel also requested, on two occasions, that the circuit court listen to the taped conversation between Adkins and Victim 1, but the circuit court declined.
Adkins also believes Detective Whittaker conducted the search prior to receiving the signed warrant. To support his position, Adkins claims the issuing judge was not at home but in open court on the morning the search warrant was signed, and points out that the search warrant did not contain a fax heading. Adkins again asserts his trial counsel failed to adequately make this point during the suppression hearing. Again, the record does not support Adkins' argument.
A review of the suppression hearing reveals trial counsel spent considerable time discussing the timing of the events — when Detective Whittaker requested the warrant, when he received it, when he was en route to Adkins' house, when he arrived at Adkins' house, etc. Trial counsel also asked Detective Whittaker if he had the warrant in his possession during the search and asked another officer if he had seen the warrant during the search. During his questioning, trial counsel made the point that the issuing judge was in court when Detective Whittaker submitted his warrant request.
Trial counsel clearly took considerable steps during the suppression hearing to challenge the sufficiency of Detective Whittaker's affidavit and challenge whether the search was properly conducted pursuant to a valid warrant. There is no evidence trial counsel failed to adequately prepare for the hearing. We simply cannot say trial counsel's conduct fell below an objective standard of reasonableness.
Finally, Adkins asserts his guilty plea was involuntary due to ineffective assistance of counsel. Adkins claims his plea was not knowing and voluntary because his trial counsel failed to advise him, prior to entering his plea, that he would be required to register as a sex offender upon his release from prison. This issued was raised — and rejected — in the course of Adkins' appeal of the circuit court's denial of his motion to withdraw his plea. In fact, Adkins asserted this exact same ineffective-assistance argument in his prior appeal. Adkins, 2010 WL 4879581, at *2 ("Adkins' argument implies that his plea was involuntary due to ineffective assistance of counsel" because "at the time he pled guilty" he was unaware he would have to register as a sex offender). "Where the collateral ineffective assistance of counsel claim is presented in the course of the direct appeal . . . the issue cannot be re-litigated in a collateral attack." Leonard v. Commonwealth, 279 S.W.3d 151, 159 (Ky. 2009). We decline to address this argument.
The Ohio Circuit Court's September 9, 2011 order denying Adkins' RCr 11.42 motion is affirmed.
ALL CONCUR.
