Opinion of the Court by Chief Justice MINTON.
Denver Ray Williams was arrested for trafficking in a controlled substance based upon nineteen grams of suspected cocaine found during a controlled drug buy in a car that Williams occupied as a passenger. The police searched Williams at the scene and placed him in a police cruiser. For this incident, Williams was ultimately indicted for trafficking in cocaine.
En route to the police station in the back of the cruiser, Williams attempted to swallow a plastic bag containing 4.8 grams of suspected cocaine. Williams was ultimately indicted for a second count of trafficking in a controlled substance, as well as tampering with physical evidence, based upon his unsuccessful attempt to swallow the second quantity of cocaine.
We granted discretionary review in this case to consider whether Williams may properly be charged with two counts of trafficking in a controlled substance for possessing one quantity of cocaine in a vehicle and another quantity on his person shortly thereafter. Under the facts presented in this case, we conclude that the evidence supported two trafficking charges because Williams possessed two discrete amounts of cocaine in two discrete locations. The Court of Appeals reached the same conclusion, so we affirm their holding.
Williams pleaded guilty in the trial court to the two trafficking charges and the tampering with physical evidence charge. He received a cumulative twenty-one year sentence, with one year to serve
After Williams's probation was revoked, he filed a motion for post-conviction relief under Kentucky Rules of Criminal Procedure (RCr) 11.42, mainly claiming that the dual trafficking convictions constituted double jeopardy and that his attorney was ineffective for failing to object on double jeopardy grounds. After holding a hearing, the trial court denied Williams relief; and the Court of Appeals affirmed.
Williams raises two main arguments. His first main argument is that the two trafficking charges violate his right to be free from double jeopardy. As a part of that argument, he further contends that his counsel was ineffective for failing to object to the second trafficking charge on double jeopardy grounds. His second main argument is that his trial counsel was ineffective for failing to conduct an adequate investigation of the case. We conclude
Section 13 of the Kentucky Constitution provides, in relevant part, that "[n]o person shall, for the same offense, be twice put in jeopardy of his life or limb. . . ." This section of our state Constitution is known as the Double Jeopardy Clause.
Williams contends that the two trafficking charges "arise from a single course of conduct, namely a foiled drug sale." So Williams argues that his "possession of the cocaine was therefore a continuing course of conduct" and that his arrest "did not fully interrupt his possession of the quantity of cocaine." We disagree.
We agree that, generally, "[c]ontinued possession of contraband is a single course of conduct that gives rise to a single offense."
We also disagree with Williams's assertion that we should follow the rationale in Rashad v. Burt, a decision from the United States Court of Appeals for the Sixth Circuit.
Rashad has been criticized for reasoning "inconsistent with a wealth of Supreme Court authority. . . ."
Moreover, Rashad appears to be in conflict with current Kentucky precedent.
Although Simpson does not discuss Rashad, it appears to us that the holdings are in conflict. Obviously, the facts of the case at hand are different from both Rashad and Simpson. In the case at hand, the later charge was based upon a quantity of drugs found on Williams's person after Williams's initial arrest, and—unlike Simpson and Rashad—there were no drugs later found in a vehicle impounded pursuant to a defendant's drug-related arrest. Neither Rashad nor Simpson, therefore, is directly controlling in the case at hand, although we construe Simpson as being in general accord with Kentucky double jeopardy precedent. So to the extent that Rashad (which is factually distinguishable from the case at hand because there is no indication in Rashad that the defendant continued knowingly to possess a quantity of cocaine after being arrested)
In sum, therefore, we conclude that Williams was properly charged with two separate trafficking offenses.
Williams's second main argument is that his trial counsel was ineffective for failing to conduct an adequate investigation of Williams's case. More specifically, Williams contends that his trial counsel, who was employed by the public defender's office, stated at the hearing on Williams's RCr 11.42 motion that he had not investigated the facts of Williams's case because he had an excessively burdensome caseload. Trial counsel further testified in the RCr 11.42 hearing that he did not believe an investigation was necessary because Williams wanted the case resolved as quickly as possible. Williams contends his attorney's lack of investigation caused him to suffer prejudice because the attorney negotiated a plea agreement without talking to witnesses and without having obtained a general understanding of the strength—or weakness—of the Commonwealth's case against Williams.
We disagree with Williams's assertion that he is entitled to post-conviction relief. But before addressing the rationale underlying our decision, we must set forth the proper standards that guide our review.
"Before deciding whether to plead guilty, a defendant is entitled to the effective assistance of competent counsel."
The second query a court must engage in to determine if counsel was ineffective is "whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
A post-conviction petitioner's burden is heavy because "[s]urmounting Strickland's high bar is never an easy task."
Williams heavily relies upon guidelines from organizations such as the National Legal Aid and Defender Association to
To demonstrate prejudice, Williams argues that his attorney negotiated a plea agreement with the Commonwealth without first adequately investigating Williams's case. Even if we assume, solely for the sake of argument, that the attorney failed to conduct an adequate investigation
We also reject Williams's argument that because he was seemingly acquitted by a jury on an unrelated trafficking charge, he suffered demonstrable prejudice because of his trial counsel's alleged deficient performance. The fact that Williams chose to go to trial on other charges does not have any real bearing on whether he would have chosen to go to trial on the charges at hand.
Similarly, Williams has not demonstrated prejudice from his attorney's alleged failure to interview eight witnesses whom Williams wanted subpoenaed. As the Commonwealth notes in its brief, "though Appellant [Williams] proffers . . . a list of witnesses he wanted his counsel to interview, Appellant fails to allege with specificity what evidence those witnesses would have given to support a viable defense." RCr 11.42(2) provides that a petition brought under that rule "shall state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds. Failure to comply with this section shall warrant a summary dismissal of the motion." Williams's failure to specify precisely what exculpatory or mitigating evidence these additional witnesses, many—if not all—of whom are deceased, would have provided is fatal to his claim that he was prejudiced by the ostensible lack of investigation by counsel of those witnesses.
Finally, the record simply refutes any allegation that Williams was improperly induced or coerced into pleading guilty, or that his guilty plea was unknowing or otherwise involuntary.
The opinion of the Court of Appeals affirming the trial court's order denying Williams RCr 11.42 relief is affirmed.
All sitting. ABRAMSON, CUNNINGHAM, SCHRODER, SCOTT, and VENTERS, JJ., concur. NOBLE, J., concurs in result only because Appellant possessed two different quantities of cocaine, which were sufficient to support
Haight was overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151, 159 (Ky.2009).