Opinion
NO. 2009-CA-000734-MR NO. 2009-CA-002110-MR NO. 2011-CA-000465-MR
07-19-2013
LAWRENCE PATE APPELLANT v. KENTUCKY DEPARTMENT OF CORRECTIONS APPELLEE AND LAWRENCE PATE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Case No. 2009-CA-000734: Lawrence Pate Pro se (opening appellant's brief) Burgin, Kentucky Case Nos. 2009-CA-000734, 2009-CA- 002110, and 2011-CA-000465 Margaret Ivie Assistant Public Advocate (supplemental reply brief in 2009-CA-000734; appellant's opening and reply briefs in 2009-CA-002110 and 2011-CA-000465) Frankfort, Kentucky Case Nos. 2009-CA-002110 and 2011- CA-000465 M. Brooke Buchanan Assistant Public Advocate (appellant's opening and reply briefs in 2009-CA-002110 and 2011-CA-000465) Frankfort, Kentucky BRIEFS FOR APPELLEES: Case No. 2009-CA-000734: J. Todd Henning Justice & Public Safety Cabinet Office of Legal Services Frankfort, Kentucky Case Nos. 2009-CA-002110 and 2011- CA-000465 Jack Conway Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 08-CI-02031
APPEALS FROM BRACKEN CIRCUIT COURT
HONORABLE LEWIS D. NICHOLLS, JUDGE
ACTION NO. 03-CR-00008
OPINION
AFFIRMING IN PART
REVERSING IN PART, AND REMANDING
BEFORE: DIXON, MOORE AND THOMPSON, JUDGES. MOORE, JUDGE: Lawrence Pate appeals the Franklin Circuit Court's decision in appeal number 2009-CA-000734 dismissing his petition for a declaration of rights concerning the Department of Corrections' (DOC) act of classifying him as a violent offender and, thus, requiring him to serve eighty-five percent of his sentence before becoming eligible for parole. Pate also appeals the Bracken Circuit Court's decision in appeal number 2009-CA-002110 denying his motion for sentence clarification. Finally, in appeal number 2011-CA-000465, Pate appeals the Bracken Circuit Court's order denying his RCr 11.42 motion to vacate, set aside, or correct his sentence and his CR 60.02 motion for relief from the court's judgment. After a careful review of the records, we reverse and remand for an evidentiary hearing and further proceedings in appeal number 2011-CA-000465 concerning Pate's RCr 11.42 allegation that he received the ineffective assistance of trial counsel when counsel incorrectly advised him regarding whether his sentence would run concurrently or consecutively to his Pendleton County sentence, which allegedly caused him to reject the Commonwealth's two plea offers in his Bracken County case. We affirm regarding the remainder of Pate's claims in appeal number 2011-CA-000465, and we also affirm regarding Pate's claims in appeal numbers 2009-CA-000734 and 2009-CA-002110.
Kentucky Rule of Criminal Procedure.
Kentucky Rule of Civil Procedure.
I. FACTUAL AND PROCEDURAL BACKGROUND
In May 2002 in Pendleton County, Pate was charged with manufacturing methamphetamine and carrying a concealed deadly weapon. See Pate v. Commonwealth, 134 S.W.3d 593, 595-96 (Ky. 2004). Following a jury trial, Pate was acquitted of the charge of carrying a concealed deadly weapon and convicted on the charge of manufacturing methamphetamine. Id. He was sentenced on October 18, 2002, to twenty years of imprisonment. He appealed, and the Kentucky Supreme Court affirmed the Pendleton Circuit Court's judgment. Id. at 602.
While Pate was out on bond and awaiting trial on the Pendleton County charges, he was arrested in Bracken County on September 17, 2002, pursuant to a felony arrest warrant out of Pendleton County. In the process of trying to serve the arrest warrant on Pate, Kentucky State Police Sergeant Thomas Lilly went to Pate's residence in Bracken County and knocked on the door, and Pate's wife Kathy answered the door. Kathy informed Sergeant Lilly that Pate was not there, and Sergeant Lilly asked if he could come in and look around to ensure Pate was not there. She permitted him to do so. While Sergeant Lilly was in the residence, he observed various items often associated with manufacturing methamphetamine. When Sergeant Lilly asked Kathy what the items were, she informed him it was the equipment Pate used to manufacture methamphetamine. Sergeant Lilly requested backup, and the items were seized. Pate observed the seizure of the items from a nearby apartment, and he was arrested pursuant to the arrest warrant from Pendleton County. See Pate v. Commonwealth, 243 S.W.3d 327, 329-30 (Ky. 2007), as corrected (Ky. 2008). Months later, in 2003, Pate was indicted in Bracken County on the charge of manufacturing methamphetamine, second or subsequent offense, based upon the evidence found in the residence where Sergeant Lilly spoke with Kathy. Pate was tried by a jury and convicted of this offense. He was sentenced to a term of twenty years of imprisonment. Pate appealed, and the Kentucky Supreme Court affirmed the Bracken Circuit Court's judgment. Id. at 335.
After his incarceration began, Pate learned that the DOC had classified him as a violent offender based upon his Class A felony conviction for manufacturing methamphetamine, second or subsequent offense and, as such, he would not be eligible for parole until he had served eighty-five percent of his sentence.
Pate filed a complaint with the DOC, contending he was classified as a non-violent offender when he was first incarcerated. He was later re-classified as a violent offender, which carried with it the eighty-five percent parole eligibility requirement. He alleged this was an Ex Post Facto violation. The DOC responded, stating that Pate's offense of manufacturing methamphetamine, second or subsequent offense, was a Class A offense and, as such, he was required to be classified as a violent offender.
Pate filed a petition for declaration of rights in the Franklin Circuit Court (present appellate case number 2009-CA-000734) alleging the DOC had committed an Ex Post Facto violation when it classified him as a violent offender with an eighty-five percent parole eligibility requirement after he had come to the DOC as a non-violent offender. The DOC responded to his petition and moved to dismiss it on the basis that Pate's offense of manufacturing methamphetamine, second or subsequent offense, had long been classified as a Class A felony, and all Class A felony offenders were considered violent offenders under the law in effect when Pate committed his offense. The circuit court granted the DOC's motion to dismiss.
Pate also filed a motion for sentence clarification in the Bracken Circuit Court (present appellate case number 2009-CA-002110) alleging that the Commonwealth had informed the jury in his Bracken County case that Pate would be sentenced as a non-violent offender and if sentenced to twenty years of imprisonment, he would become eligible for parole after serving twenty percent (i.e., four years) of his sentence. Pate also contended that the Commonwealth had introduced testimony from a probation and parole officer who allegedly told the jury that because Pate would be sentenced as a non-violent offender, he would receive good time credits of twenty-five percent toward his sentence if he was sentenced to a term of years, rather than to life imprisonment. However, Pate asserted in his motion for sentence clarification that in February 2009, he received a Resident Record Card from the DOC stating that he would have to serve eighty- five percent of his sentence before becoming eligible for parole. He contended that this delayed his parole eligibility date by twelve years. Pate asked the Bracken Circuit Court to clarify his sentence because he claimed that the DOC had violated his right to trial by jury by impermissibly increasing his prison time. The circuit court denied Pate's motion for sentence clarification.
In a separate action in the Bracken Circuit Court (present appellate case number 2011-CA-000465), Pate moved to vacate, set aside, or correct his Bracken Circuit Court sentence pursuant to RCr 11.42 or, in the alternative, he moved for relief from the court's judgment pursuant to CR 60.02. In that motion, Pate contended he had received the ineffective assistance of trial counsel when counsel: failed to call witnesses to impeach Kathy's testimony; failed to correctly advise him of the possible sentence he may receive if he was convicted at trial; and failed to object to false testimony presented during the penalty phase of his trial. Pate also alleged he had received the ineffective assistance of appellate counsel when counsel failed to argue on appeal that the probation and parole officer's false testimony during the penalty phase of the trial was grounds for reversal. Pate asserted that after he was sentenced, the DOC had "changed its interpretation of KRS[ ] 439.3401, contradicting the testimony and evidence presented at [his] trial, rendering [his] decision to reject the Commonwealth's plea offers involuntary and unintelligent and presenting an extraordinary situation which justifies relief." The Bracken Circuit Court denied Pate's RCr 11.42 and CR 60.02 motions by merely writing on the docket sheet as follows: "Overruled[.] Makes no difference as to outcome."
Kentucky Revised Statute.
Pate now appeals the Franklin Circuit Court's decision dismissing his petition for a declaration of rights. He also appeals the Bracken Circuit Court's two decisions denying his motion for sentence clarification and denying his motions brought under RCr 11.42 and CR 60.02.
This appeal (appellate case number 2009-CA-000734) was ordered by this Court to be consolidated with appellate case number 2009-CA-002110 (i.e., Pate's appeal from the denial of his motion for sentence clarification). Appellate case number 2009-CA-000734 was then ordered by this Court to be held in abeyance until case number 2009-CA-002110 was ready for submission.
These appeals, i.e., appellate case numbers 2009-CA-002110 and 2011-CA-000465, were ordered by this Court to be consolidated. This Court ordered that the records from all three appeals (2009-CA-000734, 2009-CA-002110, and 2011-CA-000465) should be considered in resolving the consolidated appeals, and that the appeal in case number 2009-CA-000734 should be held in abeyance until briefing was complete in 2009-CA-002110 and 2011-CA-000465.
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II. ANALYSIS
A. APPEAL NUMBER 2011-CA-000465
1. RCr 11.42
In a motion brought under RCr 11.42, "[t]he movant has the burden of establishing convincingly that he or she was deprived of some substantial right which would justify the extraordinary relief provided by [a] post-conviction proceeding. . . . A reviewing court must always defer to the determination of facts and witness credibility made by the circuit judge." Simmons v. Commonwealth, 191 S.W.3d 557, 561 (Ky. 2006), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151, 159 (Ky. 2009). An RCr 11.42 motion is "limited to issues that were not and could not be raised on direct appeal." Id. Pursuant to RCr 11.42(5), if there is "a material issue of fact that cannot be determined on the face of the record the court shall grant a prompt hearing. . . ."
On appeal, Pate contends the Bracken Circuit Court erred in denying his RCr 11.42 motion because: (1) he received the ineffective assistance of appellate counsel when counsel failed to raise on appeal the claim that false testimony was presented during the penalty phase of the trial; (2) he received the ineffective assistance of trial counsel when counsel failed to call witnesses to impeach Kathy, who was a key prosecution witness; (3) he received the ineffective assistance of trial counsel when counsel incorrectly advised him regarding parole eligibility; and (4) the trial court erred in denying his RCr 11.42 motion without holding an evidentiary hearing.
To prove he received the ineffective assistance of counsel, thus warranting a reversal of his conviction, Pate must show that: (1) counsel's performance was deficient, in that it fell outside "the wide range of reasonable professional assistance"; and (2) this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 689, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). Further,
a court's review of counsel's performance must be highly deferential. A fair assessment of attorney performance requires that every effort be made 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. Hence, the defendant must overcome the presumption that counsel provided a reasonable trial strategy.Brown v. Commonwealth, 253 S.W.3d 490, 498-99 (Ky. 2008) (internal quotation marks and citations omitted).
In his first claim, Pate alleges he received the ineffective assistance of appellate counsel when counsel on direct appeal failed to raise the issue regarding the presentation of false testimony during the penalty phase of the trial by the probation and parole officer. Pate contends the probation and parole officer testified falsely, telling the jury during the penalty phase of the trial that Pate would be eligible for parole after serving only twenty percent of his sentence, when in fact he would be classified as a violent offender and he would have to serve eighty-five percent of his sentence before becoming parole eligible. Pursuant to the version of KRS 439.3401 that was in effect at the time of trial, the term "violent offender" meant
any person who has been convicted of or pled guilty to the commission of a capital offense, Class A felony, or Class B felony involving the death of the victim or serious physical injury to a victim. . . . The court shall designate in its judgment if the victim suffered death or serious physical injury.KRS 439.3401(1) (2002). The statute continued, stating that
[a] violent offender who has been convicted of a capital offense or Class A felony with a sentence of a term of years or Class B felony who is a violent offender shall not be released on probation or parole until he has served at least eighty-five percent (85%) of the sentence imposed.KRS 439.3401(3) (2002).
According to an affidavit in the record from Johnathan Hall, a Branch Manager of the Offender Information Services Branch of the DOC, the DOC changed its interpretation of the statute after Pate was sentenced and incarcerated. The DOC had previously interpreted the statute to require the victim to have suffered death or serious physical injury for the offender to be classified as a violent offender, regardless of whether the crime committed was a capital offense, Class A felony, or Class B felony. The DOC, however, later interpreted the statute to mean that any offender convicted of a Class A Felony should be considered a violent offender. The DOC changed its interpretation of the statute based upon changes made to the statute that were effective in 2006. The 2006 version of KRS 439.3401 stated:
(1) As used in this section, "violent offender" means any person who has been convicted of or pled guilty to the commission of:KRS 439.3401(1) (2006). These changes caused the DOC to reevaluate its prior interpretation of the statute's definition of "violent offender." Johnathan Hall's affidavit explains:
(a) A capital offense;
(b) A Class A felony;
(c) A Class B felony involving the death of the victim or serious physical injury to a victim;
* * *
The court shall designate in its judgment if the victim suffered death or serious physical injury.
Upon reviewing the change in the textual format of KRS 439.3401 effective July 12, 2006 in comparison to all previous versions it became apparent that KRS 439.3401(1) has always defined a violent offender as any
person convicted of . . . any class A felony . . . . Following our discovery that our previous interpretation of KRS 439.3401(1) was incorrect[,] any offender standing convicted of . . . a Class A felony that was not previously considered a violent offender had their sentence recalculated pursuant to KRS 439.3401.
Thus, at the time of Pate's trial, he would not have been classified as a violent offender, according to the DOC's interpretation of the statute at that time. Pate allegedly learned in 2009, when he received his Resident Record Card, that he was then classified as a violent offender and he would have to serve eighty-five percent of his sentence before becoming eligible for parole. Therefore, at the time of Pate's direct appeal (the Kentucky Supreme Court rendered its corrected version of its decision on his direct appeal in the Bracken County Case on January 23, 2008), he had not been notified that he was considered to be a violent offender. Consequently, his appellate counsel could not have rendered ineffective assistance by failing to raise a claim that counsel and Pate were unaware of at that time. Therefore, this claim lacks merit.
Pate's second claim alleges he received the ineffective assistance of trial counsel when counsel failed to call witnesses to impeach his wife, Kathy, who was a key prosecution witness. Pate asserts trial counsel could have called Ann Pate, Dennis Marx, Rachel Marx, Chris Bumpus, Alonzo Fears, Vernon Bowling, Bridgett Dietrich, and Gary Bloomfield to refute Kathy's testimony that Pate had lived with her for two to three weeks before September 17, 2002, which was the date Sergeant Lilly observed various items associated with the manufacture of methamphetamine in Pate's residence. Pate contends counsel's failure to present testimony from these witnesses to rebut Kathy's allegations resulted in Kathy's credibility not being questioned. He further alleges the witnesses' testimony would have established that the items in the residence could not have belonged to him.
However, in discussing the facts supporting the Bracken Circuit Court's judgment against Pate on direct appeal, the Kentucky Supreme Court noted "[w]hen [Sergeant] Lilly told [Pate] he had a warrant for his arrest, [Pate] complained that the items seized from the apartment were his and that they were being taken illegally." Pate, 243 S.W.3d at 329-30. Therefore, Pate cannot show that the failure to present the testimony from the aforementioned witnesses prejudiced his defense because evidence was introduced showing Pate apparently told the sergeant that the items belonged to him. Consequently, this claim lacks merit.
Pate asserts in his third claim that he received the ineffective assistance of trial counsel when counsel incorrectly advised him regarding parole eligibility and regarding whether his sentences could be served concurrently. Specifically, Pate contends that the Commonwealth twice made plea offers to amend the charge of manufacturing methamphetamine, second or subsequent offense, which carried a sentence range of twenty years to life imprisonment, down to criminal attempt to commit manufacturing methamphetamine, for which the Commonwealth would recommend a sentence of five years. The plea offers specified that if Pate agreed to enter a guilty plea to the amended charge, the sentence for the amended charge would be served consecutively to the sentence he had received in his Pendleton County case.
Pate asserts his counsel incorrectly advised him that if he rejected the plea offers, proceeded to trial, and was found guilty of manufacturing methamphetamine, second or subsequent offense, it was possible for his Pendleton County and Bracken County sentences to run concurrently. This could have effectively resulted in a shorter sentence than the sentence he would have received pursuant to the plea offer, if counsel's advice had been correct. Yet, counsel's advice was incorrect because, pursuant to KRS 533.060(3), the sentences were required to be served consecutively because he committed his Bracken County offense while awaiting trial for the Pendleton County offense. Pate argues that this incorrect advice prevented him from making a knowing, voluntary, or intelligent decision to reject the Commonwealth's two plea offers in the Bracken County case. He further contends that prior to trial, counsel incorrectly advised him that he would be eligible for parole after serving only twenty percent of his sentence, but the DOC informed him after his incarceration began that he would have to serve eighty-five percent of his sentence before becoming eligible for parole. Pate asserts that but for trial counsel's incorrect advice, he would have accepted the Commonwealth's offer to plead guilty to the amended charge of criminal attempt to manufacture methamphetamine.
Unfortunately, the circuit court did not hold an evidentiary hearing concerning Pate's RCr 11.42 motion, and the only reason it provided for denying the motion was that it "makes no difference as to outcome." However, if counsel did in fact advise Pate that if he was convicted following trial, his Bracken County and Pendleton County sentences could be served concurrently, then this was incorrect advice pursuant to KRS 533.060. There is a reasonable likelihood that if Pate had been properly advised regarding the requirement that the sentences be served consecutively, he would have chosen to accept the Commonwealth's plea offer and forego trial, which would have resulted in a five-to-ten-year sentence for the Bracken County charge, rather than the twenty-year sentence he received.
Therefore, we find it necessary to reverse and remand for an evidentiary hearing and further consideration by the circuit court of this issue. See Commonwealth v. Pridham, 394 S.W.3d 867, 878-79 (Ky. 2012) (finding defendant was entitled to an evidentiary hearing concerning his claim of ineffective assistance of counsel after counsel misadvised defendant concerning parole eligibility, which resulted in a "sharply extended period of parole ineligibility," because the defendant, who pleaded guilty, was "entitled to know about it."). We instruct the circuit court to consider the recent United States Supreme Court decision in Lafler v. Cooper, __ U.S. __, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), in its analysis of this issue. The facts in Lafler were similar to those alleged by Pate in this case. In Lafler, the criminal defendant, named Cooper, also alleged that his counsel's ineffective assistance caused him to reject a plea offer, which resulted in Cooper proceeding to a jury trial and receiving a harsher sentence than the sentence that was offered and rejected during the plea bargaining stage. Lafler, __ U.S. _, 132 S.Ct. at 1382-83. The Supreme Court noted that the Sixth Amendment right to counsel "extends to the plea-bargaining process." Lafler, __ U.S. __, 132 S.Ct. at 1384. In Lafler, the parties all agreed that Cooper's attorney performed deficiently and, thus, that Cooper's claim satisfied the first prong of the Strickland ineffective assistance of counsel test. See Lafler, __ U.S. __, 132 S.Ct. at 1384.
The question in Lafler was then whether Cooper's claim satisfied the second prong of Strickland, regarding whether his counsel's deficient performance prejudiced Cooper's defense. The Supreme Court stated:
[H]ere the ineffective advice led not to an offer's acceptance but to its rejection. Having to stand trial, not choosing to waive it, is the prejudice alleged. In these circumstances a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.Lafler, __ U.S. __, 132 S.Ct. at 1385.
The Court reasoned:
If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it. If that right is denied, prejudice canLafler, __ U.S. __, 132 S.Ct. at 1387. This is precisely the allegation that Pate makes in the present case, i.e., that he rejected the plea offers due to incorrect advice he received from counsel and that due to counsel's ineffectiveness, he was prejudiced because he proceeded to trial and was convicted on a more serious charge and received a sentence four times longer than the sentence he likely would have received if he had accepted the plea offer.
be shown if loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a more severe sentence.
As the Supreme Court noted, if a defendant is able to show that he has received the ineffective assistance of counsel in choosing to reject a plea offer, the question then becomes how to fashion an appropriate remedy for this miscarriage of justice. The Court in Lafler reasoned:
The specific injury suffered by defendants who decline a plea offer as a result of ineffective assistance of counsel and then receive a greater sentence as a result of trial can come in at least one of two forms. In some cases, the sole advantage a defendant would have received under the plea is a lesser sentence. This is typically the case when the charges that would have been admitted as part of the plea bargain are the same as the charges the defendant was convicted of after trial. In this situation the court may conduct an evidentiary hearing to determine whether the defendant has shown a reasonable probability that but for counsel's errors he would have accepted the plea. If the showing is made, the court may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.Lafler, __ U.S. __, 132 S.Ct. at 1389.
In some situations it may be that resentencing alone will not be full redress for the constitutional injury. If, for example, an offer was for a guilty plea to a count or counts less serious than the ones for which a defendant was convicted after trial, or if a mandatory sentence confines a judge's sentencing discretion after trial, a resentencing based on the conviction at trial may not suffice. . . . In these circumstances, the proper exercise of discretion to remedy the constitutional injury may be to require the prosecution to reoffer the plea proposal. Once this has occurred, the judge can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed.
In the present case, if Pate is indeed able to prove on remand to the circuit court that he received the ineffective assistance of counsel, the second scenario that the Supreme Court discussed would be applicable, i.e., where the offer was to plead to a charge less serious than that for which the defendant was convicted after trial or when the mandatory sentence confines the sentencing discretion of the judge. However, we pause to question whether the Supreme Court's suggestion that "[i]n these circumstances, the proper exercise of discretion to remedy the constitutional injury may be to require the prosecution to reoffer the plea proposal," Lafler, __ U.S. __, 132 S.Ct. at 1389, is in accord with Kentucky jurisprudence concerning the Separation of Powers Doctrine. The Kentucky Supreme Court has stated that the Kentucky Constitution provides for the separation of powers:
The power to define crimes and establish the range of penalties for each crime resides in the legislative branch.Gibson v. Commonwealth, 291 S.W.3d 686, 689-90 (Ky. 2009). Furthermore, the Kentucky Supreme Court, in a decision rendered a few months prior to the decision in Lafler, held "[t]he prosecution decides whether to engage in plea bargaining or proceed to trial and is not required to reoffer a rejected or withdrawn plea offer." Porter v. Commonwealth, 394 S.W.3d 382, 394 (Ky. 2011).
The power to charge persons with crimes and to prosecute those charges belongs to the executive department, and by statute, is exercised by the appropriate prosecuting attorney. The power to conduct criminal trials, to adjudicate guilt and to impose sentences within the penalty range prescribed by the legislature belongs to the judicial department.
Therefore, while following the binding precedent of Porter yet fashioning an appropriate remedy in accord with the spirit of Lafler, we suggest that if the circuit court does find that Pate received the ineffective assistance of counsel in rejecting the plea offer, the circuit court simply revert the proceedings to the point where the plea had been offered, but before it was rejected. This was the point when the ineffective assistance of counsel would have occurred, and this is essentially the procedure that is followed in cases when courts find that a defendant received the ineffective assistance of counsel when counsel incorrectly advises a defendant to enter a guilty plea - the proceedings are taken back to the point prior to the defendant having entered the guilty plea, and the parties proceed from there. Then, once the offer is presumably accepted by the defendant, the case should proceed as all other cases involving plea agreements, i.e., with a plea colloquy and the trial court's determination of whether to accept or reject the plea agreement, etc. If the trial court accepts the plea agreement, then Pate's current conviction should be vacated and he should be resentenced accordingly. If the trial court rejects the plea agreement, then Pate's current conviction and sentence will remain the judgment of the circuit court. See Lafler, __ U.S. __, 132 S.Ct. at 1391. Consequently, we reverse and remand for an evidentiary hearing and further consideration regarding Pate's allegation that trial counsel rendered ineffective assistance by advising him that, if he was convicted of manufacturing methamphetamine, second or subsequent offense, his sentence could be served concurrently with his Pendleton County sentence.
Pate also asserts that prior to trial, counsel incorrectly told him he would be eligible for parole after serving only twenty percent of his sentence. Years after his incarceration began, the DOC informed him however that he would have to serve eighty-five percent of his sentence before becoming eligible for parole due to the fact that his offense was a Class A felony, which is classified as a violent offense. See KRS 439.3401(3). He contends that due to counsel's incorrect advice regarding parole eligibility, he received the ineffective assistance of trial counsel because if counsel had properly advised him regarding parole eligibility, he would not have rejected the Commonwealth's plea offers.
As we previously noted, the DOC's interpretation of KRS 439.3401 at the time Pate's case was in the trial court was in accord with counsel's advice that Pate would be eligible for parole after serving twenty percent of his sentence. In fact, the DOC did not change its interpretation of that statute until sometime after the statute was amended in 2006 (Pate was sentenced in the Bracken County case in 2005), and Pate was not notified by the DOC until 2009 that he was classified as a violent offender. Therefore, trial counsel's advice was in accord with the DOC's interpretation of KRS 439.3401 at the time the plea offers were made and rejected, so counsel did not perform deficiently. Accordingly, this ineffective assistance of trial counsel claim lacks merit.
The final claim Pate asserts concerning his RCr 11.42 motion is that the circuit court erred in denying his motion without holding an evidentiary hearing. As we discussed supra, the only claim Pate raises that required an evidentiary hearing was whether he received the ineffective assistance of trial counsel regarding his allegation that counsel incorrectly advised him that his sentences could be served concurrently. Therefore, we reverse and remand for an evidentiary hearing concerning that claim and for further consideration of that particular claim. However, the court did not err in failing to hold an evidentiary hearing concerning Pate's remaining RCr 11.42 claims.
2. CR 60.02
Pate next asserts that the circuit court erred to his substantial prejudice and denied him due process of law when it denied his CR 60.02 motion. Specifically, he contends that his CR 60.02 motion should have been granted because he received the ineffective assistance of trial counsel when counsel advised him incorrectly during the plea bargaining process by failing to tell Pate of the applicability of KRS 439.3401(1), i.e., that he would be considered a violent offender if convicted of manufacturing methamphetamine, second or subsequent offense, and he would have to serve eighty-five percent of his sentence before becoming parole eligible. Pate further asserts that his CR 60.02 motion should have been granted due to "the acquiescence of trial counsel, the Commonwealth, and the court to the presentation of false testimony regarding penalty at trial."
On appeal, we review the denial of a CR 60.02 motion for an abuse of discretion. "A movant is not entitled to a hearing on a CR 60.02 motion unless he affirmatively alleges facts which, if true, justify vacating the judgment and further allege[s] special circumstances that justify CR 60.02 relief." White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000) (internal quotation marks and citation omitted).
"Civil Rule 60.02 is not intended merely as an additional opportunity to relitigate the same issues which could reasonably have been presented by direct appeal or RCr 11.42 proceedings." McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997) (internal quotation marks omitted). Civil Rule 60.02 "is not a separate avenue of appeal to be pursued in addition to other remedies, but is available only to raise issues which cannot be raised in other proceedings." Id.
Pate's argument that he received the ineffective assistance of trial counsel when counsel incorrectly advised him regarding the eighty-five percent parole eligibility requirement was raised in his RCr 11.42 motion, as discussed, supra. Therefore, because this claim was raised in his RCr 11.42 motion, it was not properly presented in his CR 60.02 motion.
Pate also asserts that his CR 60.02 motion should have been granted due to "the acquiescence of trial counsel, the Commonwealth, and the court to the presentation of false testimony regarding penalty at trial." The Commonwealth argues that this claim was not properly brought in a CR 60.02 motion. Rather, the Commonwealth contends that this claim should be brought in a Declaration of Rights action, and because Pate's appeal number 2009-CA-000734 is from a Declaration of Rights action challenging the DOC's changed interpretation of KRS 439.3401, the Commonwealth argues it is the proper appeal for considering this issue.
Regardless of whether this claim was properly brought in Pate's CR 60.02 motion, the claim lacks merit. In Robinson v. Commonwealth, 181 S.W.3d 30, 37-38 (Ky. 2005), the Kentucky Supreme Court held that a probation and parole officer's incorrect testimony during the penalty phase of the trial regarding parole eligibility amounted to palpable error. The Court noted that
[t]he use of incorrect, or false, testimony by the prosecution is a violation of due process when the testimony is material. . . . This is true irrespective of the good faith or bad faith of the prosecutor. . . . When the prosecution knows or should have known that the testimony is false, the test for materiality is whether there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.Robinson, 181 S.W.3d at 38 (internal quotation marks omitted).
At the time the testimony was presented in this matter, it was not necessarily incorrect or false because it was in accord with the DOC's interpretation of KRS 439.3401 at that time, as stated in the affidavit of DOC employee Johnathan Hall that Pate filed in the circuit court in support of his CR 60.02 motion and which we discussed supra. Regardless, even if we were to assume for the sake of argument that the testimony was false when it was presented during the penalty phase of Pate's trial, the testimony was not material because it did not affect the jury's judgment. The jury could have recommended sentencing Pate to anywhere from twenty years to life imprisonment for his conviction for manufacturing methamphetamine, second or subsequent offense. See KRS 218A.1432(2); KRS 532.060(2)(a). However, the jury recommended that Pate be sentenced to the minimum, i.e., twenty years of imprisonment. Therefore, because Pate received the minimum sentence for this conviction, the allegedly false penalty phase testimony was not material because it could not have affected the jury's judgment. Consequently, this claim lacks merit.
B. APPEAL NUMBER 2009-CA-002110
Pate asserts that the trial court erred in denying his motion for sentence clarification. Specifically, he contends that RCr 10.10 "provide[s] the trial courts with the limited jurisdiction to correct judgments when there are clerical mistakes or errors that exist in the record." Kentucky Rule of Criminal Procedure 10.10 states as follows:
Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the
pendency of an appeal, such mistakes may be so corrected before the appeal is perfected in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.
Contrary to Pate's assertion, RCr 10.10 only applies to clerical mistakes, and the mistake that Pate alleges occurred during the penalty phase of his trial was not clerical in nature. See McMillen v. Commonwealth, 717 S.W.2d 508, 509 (Ky. App. 1986). Therefore, RCr 10.10 is inapplicable and this claim lacks merit.
C. APPEAL NUMBER 2009-CA-000734
In Pate's final appeal, he contends that the circuit court should have held a hearing before granting the DOC's motion to dismiss Pate's petition for a declaration of rights. In his petition for a declaration of rights filed in the circuit court, Pate alleged that the DOC had committed an Ex Post Facto violation when it re-classified him as a violent offender with an eighty-five percent parole eligibility requirement after initially classifying him as a non-violent offender when he first came to the DOC. The DOC responded to his petition and moved to dismiss it on the basis that Pate's offense of manufacturing methamphetamine, second or subsequent offense, had long been classified as a Class A felony, and all Class A felony offenders are considered to be violent offenders pursuant to KRS 439.3401. The circuit court granted the DOC's motion to dismiss.
We review a trial court's order dismissing a complaint de novo. It is well established that a court should not grant a motion to dismiss a complaint unless it appears the pleading party would not be entitled to relief under anyWagoner v. Bradley, 294 S.W.3d 467, 468 (Ky. App. 2009) (internal quotation marks and citations omitted), overruled on other grounds by Hammers v. Plunk, 374 S.W.3d 324, 330 (Ky. App. 2011).
set of facts which could be proved in support of his claim.
Contrary to Pate's assertion, a statute imposing a condition that must be met before a prisoner may be eligible for parole is not an Ex Post Facto law because prisoners do not have a right to be paroled and because the Parole Board is not required to release a prisoner prior to the completion of his maximum sentence. See Garland v. Commonwealth, 997 S.W.2d 487, 489-90 (Ky. App. 1999). Therefore, the fact that Pate is statutorily required to serve eighty-five percent of his sentence before becoming eligible for parole is not an Ex Post Facto violation. Consequently, the circuit court did not err in dismissing Pate's petition for a declaration of rights without holding an evidentiary hearing.
In its Supplemental brief in appeal number 2009-CA-000734, the Commonwealth asserts that Pate appears to be relying upon the "doctrine of contemporaneous construction" in his argument that the DOC's initial interpretation of KRS 439.3401 regarding parole eligibility is entitled to controlling weight. The Commonwealth contends that "contemporaneous construction cannot be founded upon an administrative agency's failure to correctly apply the law." However, because we have determined that Pate's claim in appeal number 2009-CA-000734 lacks merit, we need not address the Commonwealth's argument concerning the doctrine of contemporaneous construction.
Accordingly, in appeal number 2011-CA-000465, we reverse and remand for an evidentiary hearing and further proceedings concerning Pate's RCr 11.42 allegation that he received the ineffective assistance of trial counsel when counsel incorrectly advised him regarding whether his sentence would run concurrently or consecutively to his prior sentence, which allegedly caused him to reject the Commonwealth's plea offers. We affirm regarding the remainder of Pate's claims from appeal number 2011-CA-000465, as well as regarding Pate's claims from appeal numbers 2009-CA-000734 and 2009-CA-002110.
ALL CONCUR. BRIEFS FOR APPELLANT: Case No. 2009-CA-000734: Lawrence Pate
Pro se (opening appellant's brief)
Burgin, Kentucky
Case Nos. 2009-CA-000734, 2009-CA-
002110, and 2011-CA-000465
Margaret Ivie
Assistant Public Advocate (supplemental
reply brief in 2009-CA-000734;
appellant's opening and reply briefs in
2009-CA-002110 and 2011-CA-000465)
Frankfort, Kentucky
Case Nos. 2009-CA-002110 and 2011-
CA-000465
M. Brooke Buchanan
Assistant Public Advocate
(appellant's opening and reply briefs in
2009-CA-002110 and 2011-CA-000465)
Frankfort, Kentucky
BRIEFS FOR APPELLEES: Case No. 2009-CA-000734: J. Todd Henning
Justice & Public Safety Cabinet
Office of Legal Services
Frankfort, Kentucky
Case Nos. 2009-CA-002110 and 2011-
CA-000465
Jack Conway
Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky