Opinion
NO. 2013-CA-000470-MR
04-17-2015
DOUGLAS EUGENE LYNCH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Margaret Ivie Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MADISON CIRCUIT COURT
HONORABLE WILLIAM G. CLOUSE, JR., JUDGE
ACTION NO. 10-CR-00094
OPINION
AFFIRMING
BEFORE: COMBS, JONES, AND MAZE, JUDGES. MAZE, JUDGE: On April 21, 2010, a Madison County grand jury returned an indictment charging Douglas Lynch with three counts of first-degree robbery. Subsequently, he accepted the Commonwealth's offer on a plea of guilty to those charges. In exchange for his guilty plea, the Commonwealth recommended a total sentence of 15-years' imprisonment, which the trial court imposed.
On May 17, 2012, Lynch filed a pro se motion to set aside his conviction and sentence pursuant to RCr 11.42, alleging ineffective assistance of counsel. Lynch asserted that his trial counsel failed to inform him that he would not be eligible for parole until he had served 85% of his sentence. Lynch also argued that the trial court failed to determine whether he understood these consequences prior to accepting his guilty plea. After considering Lynch's arguments and the Commonwealth's response, the trial court denied the motion without a hearing and without appointing counsel. This appeal followed.
Kentucky Rules of Criminal Procedure.
As a preliminary matter, the Commonwealth argues that this Court need not reach the merits of Lynch's claims because his RCr 11.42 motion was not verified as required by RCr 11.42(2). Subsection (2) of the rule states that failure to verify the motion "shall warrant a summary dismissal of the motion." But upon review of the record, we note that Lynch's motion is signed and notarized, and he sets out the specific facts upon which he sought relief. Stanford v. Commonwealth, 854 S.W.2d 742, 748 (Ky. 1993). The Commonwealth did not bring any defect in the motion to the trial court's attention. Consequently, we presume that the trial court believed that Lynch had substantially complied with the rule. Cleaver v. Commonwealth, 569 S.W.2d 166, 169 (Ky. 1978). Therefore, we will review the merits of Lynch's claims.
In order to maintain an ineffective assistance of counsel claim, a movant must satisfy a two-part test showing that his counsel's performance was deficient and that the deficiency caused actual prejudice affecting the outcome of the proceeding. Strickland v. Washington, 466 U.S. 668, 686-87, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985). The burden falls on the movant to overcome a strong presumption that counsel's assistance was constitutionally sufficient. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Commonwealth v. Pelfrey, 998 S.W.2d 460, 463 (Ky. 1999). In cases involving a guilty plea, the movant must prove that his counsel's deficient performance so seriously affected the outcome of the plea process that, but for counsel's errors, there is a reasonable probability that the movant would not have pleaded guilty but would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985); Phon v. Commonwealth, 51 S.W.3d 456, 459-60 (Ky. App. 2001). An evidentiary hearing is necessary only where the record does not conclusively refute the allegations in the motion. Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001).
Lynch argues that his trial counsel failed to inform him that he would be sentenced as a Violent Offender and thus not eligible for parole until he had served 85% of his sentence. Lynch also contends that neither his trial counsel nor the trial court asked if he understood the ramifications of accepting the guilty plea. Lynch maintains that, if he had been properly advised, he would not have accepted the plea but would have insisted on going to trial. At the very least, Lynch argues that he was entitled to an evidentiary hearing on this issue.
In Commonwealth v. Pridham, 394 S.W.3d 867 (Ky. 2012), the Kentucky Supreme Court recently discussed misadvice concerning parole eligibility as a basis for establishing ineffective assistance of counsel. In that case, the Court addressed situations in which two defendants, Pridham and Cox, accepted a guilty plea and then later alleged that their counsel incorrectly advised them that they would be eligible for parole after serving only 20% of their sentence. While the Court acknowledged that parole eligibility is not a direct consequence of a guilty plea, the Court concluded that misadvice concerning such a significant consequence is a valid basis for establishing deficient performance by trial counsel. Id. at 878-79, citing Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). "We do not believe it unreasonable to expect of competent defense counsel an awareness of the violent offender statute and accurate advice concerning its effect on parole eligibility." Id. at 879.
However, the Supreme Court concluded that neither defendant was entitled to relief. In the case of Cox, the Court found that his trial counsel was not deficient merely for incorrectly advising him on how his status as a sex offender would affect his parole eligibility. Id. at 881-82. In the case of Pridham, the Court noted that he had been caught "virtually red-handed" and confessed, and would have been subject to a base sentence of twenty years to life with the possibility of PFO enhancement. Consequently, the Court found no prejudice in the absence of any reasonable likelihood that Pridham would have rejected the lesser plea offer even if he had been correctly advised about his parole eligibility. Id. at 880-81.
The facts of the current case are similar to those presented in the latter situation. As an initial matter, Lynch did not allege in his RCr 11.42 motion that he would have rejected the plea offer had he been properly advised of the consequences to his parole eligibility. At the pleading stage, the movant has the burden to allege specific facts which, if true, would demonstrate prejudice. Stiger v. Commonwealth, 381 S.W.3d 230, 237 (Ky. 2012). In the absence of a sufficient pleading, Lynch was not entitled to an evidentiary hearing on his motion.
Furthermore, even on appeal, Lynch fails to point to facts establishing a reasonable likelihood that he would have insisted on going to trial. Lynch confessed to three robberies involving the use of a firearm. There was strong physical evidence and witness testimony connecting him to the crimes. Lynch was facing a sentence of 20 years' imprisonment on each count, with the possibility that the sentences could be run consecutively.
During his guilty plea, Lynch told the trial court that he understood the sentence to which he was agreeing. And at the sentencing hearing, the trial court explained that Lynch was not eligible for probation because the offenses involved the use of a firearm, and also that any matters involving Lynch's eligibility for parole lay within the jurisdiction of the Parole Board. Although Lynch expressed a desire for release as early as possible, he gave no indication at any time that his guilty plea was contingent upon early parole eligibility. Lynch's conclusory allegations that he would have insisted on a trial are not sufficient to demonstrate prejudice. Stiger, 381 S.W.3d at 237. Therefore, the trial court properly denied his motion without a hearing.
Accordingly, the June 25, 2012 order of the Madison Circuit Court denying Lynch's RCr 11.42 motion is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Margaret Ivie
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky