Opinion
NO. 2017-CA-000928-MR
09-20-2019
DERRICK JENKINS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Annie O'Connell Theodore Shouse Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Stephen Wilson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE JAMES C. BRANTLEY, JUDGE
ACTION NO. 13-CR-00138 OPINION
AFFIRMING
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BEFORE: ACREE, COMBS, AND SPALDING, JUDGES. ACREE, JUDGE: Derrick Jenkins appeals the Hopkins Circuit Court's denial of his RCr 11.42 motion for postconviction relief alleging his counsel's assistance was ineffective. We affirm.
Kentucky Rule of Criminal Procedure.
Jenkins was indicted on one count of robbery in the first degree and four counts of wanton endangerment. Pursuant to a plea agreement with the Commonwealth, he pleaded guilty to the robbery count and one wanton endangerment count, for which he would receive a twelve-year sentence for the robbery and a concurrent five-year sentence for wanton endangerment, with the other three counts to be dismissed. In June 2014, the Hopkins Circuit Court sentenced Jenkins in accordance with the plea agreement.
The record then went dormant until June 2016 when Jenkins, by counsel, filed the RCr 11.42 motion at issue. The sole issue in the motion is an allegation that Jenkins' trial counsel, Charles Hagan, erroneously told Jenkins he would be eligible for parole after serving two years of his sentence, despite the uncontested fact that Jenkins actually is not eligible for parole until he serves over ten years pursuant to the violent offender statute, KRS 439.3401. Subsection (1)(m) of that statute classifies a person convicted of robbery in the first degree as a violent offender, and subsection (3)(a) provides in relevant part that a violent offender who has been convicted of a Class B felony "shall not be released on probation or parole until he has served at least eighty-five percent (85%) of the sentence imposed." Jenkins asserts he would have rejected the plea and gone to trial if he had received accurate parole eligibility information.
Kentucky Revised Statutes.
"Robbery in the first degree is a Class B felony." KRS 515.020(2).
A twelve-year sentence equals 144 months of imprisonment; 144 x 0.85 = 122.4 months.
The trial court held an evidentiary hearing on Jenkins' motion. Jenkins testified in accordance with the allegations in his motion, and Jenkins' father testified similarly that Hagan said Jenkins would be eligible for parole in two years. Hagan testified that he believed, based on his typical practice, that he had advised Jenkins as to the requirements of the violent offender statute, but he had no specific recollection of having done so.
In April 2017, the trial court issued a thorough, well-reasoned opinion and order denying Jenkins' motion. The trial court found Hagan had performed deficiently by misadvising Jenkins as to his parole eligibility, but Jenkins had not demonstrated prejudice. The circuit court denied Jenkins' RCr 11.42 motion and this appeal followed.
"[T]o be entitled to relief from a guilty plea on the ground of ineffective assistance of counsel, a RCr 11.42 movant must show both that counsel provided deficient assistance and that he, the movant, was prejudiced as a result." Stiger v. Commonwealth, 381 S.W.3d 230, 235 (Ky. 2012) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). We review the trial court's factual findings for clear error but review its application of the law de novo. Id. at 234.
We need not linger over the deficient performance prong because the Commonwealth concedes deficiency, and that concession aligns with the Kentucky Supreme Court's statement that it is not "unreasonable to expect of competent defense counsel an awareness of the violent offender statute and accurate advice concerning its effect on parole eligibility." Commonwealth v. Pridham, 394 S.W.3d 867, 879 (Ky. 2012). Thus, we will assume, arguendo, that Jenkins has sufficiently shown Hagan's performance to have been deficient.
We now address the crux of this appeal: has Jenkins shown prejudice? We agree with the trial court that he has not.
"To establish . . . prejudice, the claimant must . . . show that absent counsel's error a meaningfully different result was a substantial likelihood, more likely than not or very nearly so." Id. at 880. More specifically, "[i]n the guilty plea context, to establish prejudice the challenger must demonstrate a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Stiger, 381 S.W.3d at 237 (citing Premo v. Moore, 562 U.S.115, 129, 131 S.Ct. 733, 178 L.Ed.2d 649 (2011) (quotation marks omitted)).
To show prejudice Jenkins must offer more than a "conclusory allegation to the effect that absent the error the movant would have insisted upon a trial . . . ." Id. Instead, he "must allege facts that, if proven, would support a conclusion that the decision to reject the plea bargain and go to trial would have been rational, e.g., valid defenses, a pending suppression motion that could undermine the prosecution's case, or the realistic potential for a lower sentence." Id. In short, "The question is whether, had [Jenkins] been made aware of the violent offender statute and its effect on his eligibility for parole, there is a reasonable probability that he would have rejected the Commonwealth's plea offer and taken his chances at trial." Id.
When the opportunity presented itself, Jenkins offered no valid defenses against the charges, nor did he file a motion to suppress any evidence against him. Instead, he merely speculates that he could have received a lower sentence because he was only eighteen when he committed the offenses, had no previous criminal history, and co-defendants received shorter sentences. Such self-serving speculation is not enough to satisfy the legal standard.
Because Jenkins offered no real defenses to the charges, it is extremely likely he would have been convicted. The minimum sentence for first-degree robbery, a Class B felony, is ten-years imprisonment. Therefore, the best-case scenario for Jenkins would have been to lessen his overall sentence by only two years (provided the wanton endangerment sentences were run concurrently), in which case his parole eligibility date would come twenty months sooner.
10 years = 120 months; 120 x 0.85 = 102 months before eligible for parole on a ten-year sentence, compared to 122.4 months before being parole eligible on a twelve-year sentence.
On the other hand, by going to trial Jenkins risked dramatically increasing his sentence. He could have received twenty years on the burglary charge and five years on each of the four wanton endangerment charges, to be served consecutively for a total sentence of forty-years imprisonment. As a young person, "parole eligibility would not have been his only concern." Stiger, 381 S.W.3d at 238. The most Jenkins could have gained from a trial, realistically, was a two-year shorter sentence; what he could have lost by risking a trial was an additional twenty-eight years imprisonment. Risking so much to gain potentially so little would be irrational.
Even in the context of his parole eligibility, the cost-benefit analysis is dramatically lopsided in favor of accepting the plea agreement. The best-case scenario for Jenkins after trial would have been to reduce his parole eligibility by about twenty months but to do so he would have had to risk increasing his parole eligibility date by nearly seven years.
Twenty years equals 240 months; 240 months x 0.85 = 204 months before parole eligibility instead of the 122.4 months before eligibility pursuant to the plea agreement.
Under those circumstances, we conclude that it would have been irrational for Jenkins to have rejected the plea agreement. "Because [Jenkins] thus had little, if any, chance of improving his outcome at trial, but could easily have fared far worse, we are not persuaded that, had he been correctly advised about the parole consequences of his plea, there is a reasonable probability that he would have rejected the plea bargain and insisted upon a trial." Stiger, 381 S.W.3d at 238. Therefore, Jenkins has not shown prejudice stemming from his counsel's mistaken parole eligibility advice, so he is not entitled to postconviction relief.
We acknowledge that the movant in Stiger received the minimum sentence, whereas Jenkins received slightly more than that. However, the fact that Jenkins bargained for - and received - a sentence slightly above the statutory minimum (though much closer to the minimum than the maximum) does not materially, substantially distinguish this case from Stiger. --------
For the foregoing reasons, the Hopkins Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Annie O'Connell
Theodore Shouse
Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Stephen Wilson
Assistant Attorney General
Frankfort, Kentucky