Opinion
NO. 2014-CA-001274-MR NO. 2014-CA-001275-MR NO. 2014-CA-001615-MR NO. 2014-CA-001616-MR NO. 2014-CA-001617-MR
03-11-2016
JESSIE TERRY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE AND JESSE RAY TERRY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Meredith Krause Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE DANIEL BALLOU, JUDGE
ACTION NOS. 12-CR-00033 & 12-CR-00163 APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE DANIEL BALLOU, JUDGE
ACTION NOS. 12-CR-00176, 12-CR-00252, & 12-CR-00261 OPINION
AFFIRMING IN PART, VACATING IN PART, AND REMANDING BEFORE: DIXON, NICKELL, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Jessie Terry, a/k/a Jesse Ray Terry brings these consolidated appeals from the Whitley County Circuit Court - two orders entered July 8, 2014, and three orders entered September 4, 2014, denying motions made in each case on appeal pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. After careful review of the record and the applicable law, we affirm in part, vacate in part, and remand.
BACKGROUND
On March 13, 2013, appellant entered a "global" guilty plea in Whitley Circuit Court in five separate criminal cases. A final judgment was entered in each case on May 8, 2013, and no appeal was taken therefrom. The sentences were to run consecutively for a total prison sentence to serve of 28 years.
On May 29, 2014, Terry filed an RCr 11.42 motion for ineffective assistance of counsel in all five cases. The circuit court denied the motions in 12-CR-00033 and 12-CR-00163 by order entered July 8, 2014, and denied the motions in 12-CR-00176, 12-CR-00252 and 12-CR-00261, by order entered September 4, 2014. Terry timely appealed each of the orders which have now been consolidated for review by this Court.
In Appeal No. 2014-CA-001274-MR, appellant pleaded guilty to theft by unlawful taking over $500 but less than $10,000 and was sentenced to five years in prison, to run consecutive with the sentences in the other four cases that he pleaded to simultaneously on March 13, 2013.
In Appeal No. 2014-CA-001275-MR, appellant pleaded guilty to theft by unlawful taking over $500 and criminal complicity to forgery in the second degree. A third count, being a persistent felony offender in the first degree, was dismissed as part of his plea. He received a sentence of five-years' imprisonment for his theft by unlawful taking charge and five years on his criminal complicity to forgery charge, the two sentences to run concurrently but consecutive with the sentences in the other four cases he pleaded to on the same date.
In Appeal No. 2014-CA-001615-MR, appellant pleaded guilty to theft by unlawful taking over $500. In exchange for the plea, a charge of being a persistent felony offender in the first degree was dismissed. He was sentenced to five-years' imprisonment, to run consecutive with the sentences in the other four cases pleaded to on the same date.
In Appeal No. 2014-CA-001616-MR, appellant pleaded guilty to receiving stolen property over $500. Upon entering his plea, a charge of being a persistent felony offender in the first degree was dismissed. He received a sentence of five-years' imprisonment, to run consecutive with the sentences in the other four cases he pleaded to on the same date.
In Appeal No. 2014-CA-001617-MR, appellant pleaded guilty to escape in the second degree and to being a persistent felony offender in the second degree. Appellant was sentenced to five-years' imprisonment on the escape in the second degree charge, which was enhanced to eight-years' imprisonment by his persistent felony offender second-degree charge, all of which were to run consecutive with the other sentences that he pleaded to on the same date, for a total sentence to serve of 28 years. This appeal follows.
ANALYSIS
The issues on appeal are the same for each case and will be reviewed collectively unless otherwise noted. Appellant claims that his trial counsel was ineffective because: 1) trial counsel misadvised appellant in regards to his parole eligibility, and 2) trial counsel failed to provide appellant with discovery in his case and adequately review the same with him. Appellant also asserts on appeal that he was entitled to an evidentiary hearing on the claims below.
In order to be granted relief under RCr 11.42, the movant must demonstrate an error which "rise[s] to the level of a constitutional deprivation of due process." Johnson v. Com., 180 S.W.3d 494, 498 (Ky. App. 2005) (quoting Com. v. Basnight, 770 S.W.2d 231, 237 (Ky. App. 1989)). In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court promulgated a two-part test for ineffective assistance of counsel claims. A petitioner is entitled to relief for ineffective assistance of counsel if his or her counsel at trial provided representation that "fell below an objective standard of reasonableness," and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Of course, "[a] defendant is not guaranteed errorless counsel, or counsel adjudged ineffective by hindsight, but counsel reasonably likely to render . . . reasonably effective assistance." McQueen v. Com., 949 S.W.2d 70, 71 (Ky. 1997).
On appeal, this Court's review is de novo in regard to counsel's performance and as to any potential deficiency caused by counsel's performance. Brown v. Com., 253 S.W.3d 490 (Ky. 2008). And, "a reviewing court should defer to the determination of facts made by the trial judge." Logan v. Com., 446 S.W.3d 655, 658-59 (Ky. App. 2014).
I. Misadvice Regarding Parole Eligibility
Appellant's first argument is that his trial counsel gave him bad advice regarding parole eligibility upon entering into the plea agreement. Appellant alleges that counsel advised him that if he did not plead guilty in all five cases, he could face a maximum sentence of fifty years before being eligible for parole. Additionally, appellant alleges that counsel advised him he would be eligible for parole in four years if he accepted the 28-year sentence he received. In fact, under this sentence, he is not eligible for parole for at least five years and six months. See Kentucky Revised Statutes (KRS) 439.340(3)(b) and 501 Ky. Admin. Regs. 1.030. Based upon our review of the record, appellant faced a maximum sentence of forty years for all charges in all five cases, assuming the convictions were to run consecutively. KRS 520.030; KRS 532.080(6)(b).
In the recent Supreme Court decision of Commonwealth v. Pridham, 394 S.W.3d 867 (Ky. 2012), the Court resolved the legal question of whether trial counsel's misadvice upon parole eligibility may form the basis of an ineffective assistance of counsel claim. The Supreme Court answered the question in the affirmative and held that misadvice concerning parole eligibility may form the basis of a Sixth Amendment claim of ineffective assistance of counsel. The Court noted that Pridham alleged that trial counsel erroneously advised that he would be parole eligible after six years of the thirty-year sentence; however, because of the violent offender statute, Pridham was not parole eligible until serving twenty years. The Court held that "[w]e do not believe it unreasonable to expect of competent defense counsel [to possess] an awareness of the violent offense statute and accurate advice concerning its effect on parole eligibility." Pridham, 394 S.W.3d at 879.
We believe there is clearly a material issue of disputed fact regarding parole eligibility that cannot be conclusively resolved on the record of this case. Appellant alleges that counsel did not give accurate advice regarding parole eligibility for his plea. No evidentiary hearing was conducted. Upon our review of the record it does not appear that the Commonwealth responded to the RCr 11.42 motions in any of the cases and the circuit court, entered the same order in each case, summarily denying the motions, without recitation of any facts regarding the denial of the motions.
Upon review of a trial court's denial of an RCr 11.42 motion without an evidentiary hearing, we must initially determine whether there exists a "material issue of fact that cannot be conclusively resolved, i.e., conclusively proved or disproved, by an examination of the record." Fraser v. Com., 59 S.W.3d 448, 452 (Ky. 2001). If a material issue of fact exists that cannot be conclusively resolved upon the face of the record, the trial court must grant the motion for an evidentiary hearing. Without the testimony of the attorney, there is nothing in the record to refute appellant's allegations.
Accordingly, we must remand for an evidentiary hearing on this issue. Fraser, 59 S.W. 3d 448. And, given that appellant requested the appointment of counsel in his respective motions, counsel must be appointed if the court determines that appellant is indigent. Id. However, on remand regarding this issue, we are mindful that in order to prove prejudice in the context of a guilty plea, the movant must still establish that counsel's performance so seriously affected the case that but for the deficiency, the movant would not have pled guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). Appellant is furthermore required to demonstrate facts to the extent that his decision to forgo a plea bargain and go to trial would have been rational under the circumstances of the case. Stiger v. Com., 381 S.W.3d 230 (Ky. 2012).
II. Failure to Provide Discovery
Appellant's second argument is that his trial counsel was ineffective because counsel failed to provide him with the discovery in the respective case or discuss its contents, so he could make an informed decision as to whether to plead guilty or proceed to trial. RCr 11.42(2) provides, in relevant part, that the movant "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." Appellant alleges in his brief that had he been provided the contents of the discovery in his cases, he would have rejected the plea offer and gone to trial. Yet, appellant fails to expressly state what discovery he could have been apprised of which would have affected his decision not to plead guilty or what evidence would have supported his position to go to trial. Mere conclusory allegations not supported by specific facts are insufficient to support an RCr 11.42 motion nor do such allegations necessitate a hearing that effectively serves the function of a discovery deposition. Sanders v. Com., 89 S.W.3d 380 (Ky. 2002), overruled on other grounds in Leonard v. Com., 279 S.W.3d 151 (Ky. 2009). Accordingly, we find no error below or basis for RCr 11.42 relief based upon this argument.
Finally, we note that the Commonwealth has raised on appeal the issue of appellant's failure to properly verify each of his respective motions below pursuant to RCr 11.42(2). The failure to verify arguably denied the circuit court jurisdiction to consider the merits of the RCr 11.42 motion. Stanford v. Com., 854 S.W.2d 742 (Ky. 1993). However, the issue does not appear to have been raised below nor addressed by the circuit court. The Supreme Court has held that substantial, not strict compliance, is sufficient to warrant judicial review of an RCr 11.42 motion. Cleaver v. Com., 569 S.W.2d 166 (Ky. 1978). We conclude that appellant has set forth sufficient facts in this case to warrant review under the substantial compliance standard.
For the foregoing reasons, we affirm the circuit court ruling as concerns the allegations regarding the failure of counsel to disclose the contents of discovery obtained in each case, but vacate and remand for an evidentiary hearing regarding counsel's advice on parole eligibility.
ALL CONCUR. BRIEF FOR APPELLANT: Meredith Krause
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky