             I P TANT NOTICE
        NOT TO BE PU YLIS E OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
                                                    RENDERED: APRIL 22, 2010
                                                       NOT TO BE PUBLISHED

               Supranr Laud of ri,firti
                               2008-SC-000129-DG
                                      AND
                               2008-SC-000876-DG
                                                               1
                                                         DATE          5,3,0 E.,„4G,..... ;Dtc-



COMMONWEALTH OF KENTUCKY                          APPELLANT/CROSS-APPELLEE



                    ON REVIEW FROM COURT OF APPEALS
V.                     CASE NO. 2007-CA-000172-MR
                    KNOX CIRCUIT COURT NO. 93-CR-00177



DAVID LAKE                                       APPELLEE/CROSS-APPELLANT



                   MEMORANDUM OPINION OF THE COURT

                         REVERSING AND REMANDING


      After a jury trial in the Knox Circuit Court, David Lake was convicted of

the 1993 murder of Christopher Golden and sentenced to a term of 20 years

imprisonment. After the judgment, Lake filed a pro se motion for a new trial,

with each of the five grounds alleging ineffective assistance of counsel. By

order dated August 3, 1994, the trial court denied Lake's motion. A direct

appeal to this Court followed. On appeal, Lake raised several issues, again

alleging ineffective assistance of counsel. According to Lake, his trial counsel

failed to adequately prepare for trial, subpoena necessary witnesses, conduct

effective cross-examination, request a change of venue, move for dismissal of
    the indictment, and secure his release prior to trial. This Court ultimately

    affirmed Lake's conviction in an unpublished opinion dated August 24, 1995. 1

           On August 25, 1995, Lake filed a 29-page pro se document with the Knox

    Circuit Court styled as a "Memorandum of Law." This document was filed in

    support of Lake's "Motion for Appointment of Counsel and Motion to Vacate,

    Set Aside or Correct his sentence." In addition to arguing that he had a

    statutory right to appointment of counsel, Lake also set out six alleged

    instances of ineffective assistance of counsel. These allegations differed from

    those considered by the trial court in his motion for a new trial and those

    considered on direct appeal. Specifically, Lake alleged that trial counsel failed

    to: (1) properly seek a continuance; (2) object to the introduction of

    photographs of the deceased; (3) object to testimony concerning uncharged

    criminal conduct; (4) hire an expert witness to dispute the cause of death; and

    (5) call material witnesses to testify. The sixth allegation of ineffective

    assistance of counsel was that trial counsel improperly accepted money from

    the deceased's father to poorly represent him. In addition, Lake alleged that a

witness for the Commonwealth committed perjury while testifying. On

November 15, 1995, Lake filed with the Knox Circuit Court a pro se RCr 11.42

motion. Lake reiterated his claims set forth in his August 25, 1995

"Memorandum of Law." Lake again requested the appointment of counsel to

assist him.




1   Lake v. Commonwealth, No. 1994-SC-000544-MR (Ky., August 24, 1995).


                                              2
          An amended RCr 11.42 motion was eventually filed on June 30, 1998

    with the assistance of counsel. In this motion, two additional issues were

    raised: (1) trial counsel's waiver of the transfer hearing and stipulation to the

juvenile court's findings were invalid; and (2) trial counsel failed to procure an

    expert witness, despite taking approximately $1,000.00 from Lake's father for

    that express purpose. By order dated August 18, 1998, the trial court denied

    Lake's motion without a hearing. Lake appealed the trial court's ruling, and

the Court of Appeals upheld the ruling in an unpublished opinion. 2 This

Court granted discretionary review and, by order dated September 18, 2002,

vacated the decision and remanded the case for an evidentiary , hearing in light

of the recently rendered opinions in Norton v. Commonwealth, 63 S.W.3d 175

(Ky. 2001) and Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001). 3

          An evidentiary hearing was finally held on March 11, 2004. The trial

court denied Lake RCr 11.24 relief, stating that the motion was successive.

The Court of Appeals disagreed and remanded the case for a decision on the

merits. The trial court, in a 28-page order discussing all evidence introduced

at trial and at the hearing, ultimately denied Lake's motion. The Court of

Appeals, relying heavily on Humphrey v. Commonwealth, 153 S.W.3d 854

(Ky.App. 2004), reversed the trial court. Based upon Humphrey, the Court of

Appeals found no evidence in the record that Lake voluntarily, knowingly, and

intelligently waived his right to a transfer hearing. Accordingly, the Court of


2   Lake v. Commonwealth, No. 1998-CA-002187-MR (Ky.App., June 22, 2001).
3   Lake v. Commonwealth, No. 2001-SC-000562-DG (Ky., September 18, 2002).



                                             3
Appeals vacated the judgment and remanded the case to the Knox District

Court, juvenile session. Subsequently, this Court granted discretionary review.

        For the following reasons, we reverse the decision of the Court of

Appeals and remand this matter to that court for consideration of the

remaining issues raised by Lake.

      We believe that the Court of Appeals' reliance on Humphrey is misplaced.

This Court previously remanded this case for an evidentiary hearing, which

was conducted in 2004 in accordance with Norton and Fraser. During this

hearing, Lake had the opportunity to raise and argue the allegation that he was

unduly prejudiced by trial counsel's stipulation of facts and the ultimate waiver

of the preliminary hearing in the juvenile proceedings. After an extensive

review of the record, this very issue was mentioned only twice by Lake during

direct testimony. In neither instance was the issue further developed by any

line of questioning.

      It has long been held by courts in this state that "[t]he burden of proof

[is] upon the appellant to show that he was not adequately represented by

appointed counsel." Jordan v. Commonwealth, 445 S.W.2d 878, 879 (Ky.

1969). In order to establish counsel's assistance was so prejudicially ineffective

as to require reversal, it is incumbent upon Lake to satisfy a two-part test.

First, Lake "must show that counsel's representation fell below an objective

standard of reasonableness." Second, Lake "must show that there is a

reasonable probability that, but for counsel's unprofessional errors, the result




                                         4
of the proceeding would have been different."' Hill v. Lockhart, 474 U.S. 52, 57

(1985) (quoting Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984)).

Even assuming arguendo that Lake had neither been advised of his rights, nor

had made a voluntary, knowing, and intelligent waiver thereof, no evidence was

introduced that the ultimate result would have been different—that Lake would

not have been transferred to circuit court. Simply stated, Lake failed to satisfy

his burden. To remand this case for yet another hearing on this issue would,

in effect, "afford [Lake] a second bite at the apple."   Gross v. Commonwealth,

648 S.W.2d 853, 857 (Ky. 1983) (citing Alvey v. Commonwealth, 648 S.W.2d

858 (Ky. 1983)). Lake's failure to produce sufficient evidence during the 2004

evidentiary hearing to meet the high threshold of ineffective assistance of

counsel claims precludes him from yet another opportunity to do so.

       The other issues raised by Lake before the Court of Appeals were not

reached because of the opinion therein remanding the case for a new

evidentiary hearing. Thus, we reverse the Court of Appeals in all portions of its

opinion and remand this case to the Court of Appeals for consideration of the

unresolved issues.

      All sitting. All concur.




                                          5
COUNSEL FOR APPELLANT/CROSS-APPELLEE:

Jack Conway
Attorney General

Gregory C. Fuchs
Assistant Attorney General
Office of Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, KY 40601-8204


COUNSEL FOR APPELLEE/CROSS-APPELLANT:

Mary Gail Robinson
Department of Public Advocacy
100 Fair Oaks, Suite 302
Frankfort, KY 40601




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