Opinion
NO. 2012-CA-001911-MR
03-28-2014
JACKIE RAY PRYOR APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Susan Jackson Balliet 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NOT TO BE PUBLISHED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 HENDERSON CIRCUIT COURT
HONORABLE KAREN LYNN WILSON, JUDGE
ACTION NO. 10-CR-00021
OPINION
REVERSING AMD REMANDING
BEFORE: LAMBERT, STUMBO AND THOMPSON, JUDGES. THOMPSON, JUDGE: Jackie Ray Pryor appeals from a Henderson Circuit Court order denying his motion to vacate conviction and sentence pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. We conclude Pryor's motion sufficiently presented questions of fact and he is entitled to an evidentiary hearing. Therefore, we reverse and remand.
A jury found Pryor guilty of flagrant non-support and being a first-degree persistent felony offender. He was sentenced to serve fifteen years, and his conviction affirmed on appeal. Pryor v. Commonwealth, (2010-CA-001175-MR) 2011 WL 2416744 (Ky. App. 2011). He then filed a motion pursuant to RCr 11.42 raising numerous claims and requesting appointment of counsel and an evidentiary hearing. The trial court denied the motion without a hearing, and this appeal followed.
On appeal, Pryor alleges his attorney was ineffective for advising him to refuse a plea offer which would have resulted in a shorter sentence than the fifteen years he received following trial. He reasserts his request for appointment of counsel and an evidentiary hearing.
Under what is well known as the Strickland test, to prove ineffective assistance of counsel, a defendant must show: (1) that counsel's representation was deficient in that it fell below an objective standard of reasonableness, measured against prevailing professional norms; and (2) that he was prejudiced by counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Recently, the United States Supreme Court recognized a defendant's right to effective assistance of counsel in rejecting a plea offer.
If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in consideringLafler v. Cooper, --- U.S. ---, 132 S.Ct. 1376, 1387, 182 L.Ed.2d 398 (2012). Adapting the Strickland test to the circumstances, the Court set forth the applicable standard:
whether to accept it. If that right is denied, prejudice can 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.
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.Id. at 1385.
The pivotal question here is whether Pryor's allegations in his RCr 11.42 motion were stated with specificity to entitle him to appointment of counsel and an evidentiary hearing. In dismissing Pryor's motion, the trial court ruled Pryor had not addressed the first prong of the Strickland test by adequately describing the content of his counsel's allegedly deficient advice.
RCr 11.42(2) states the motion "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. Failure to comply with this section shall warrant a summary dismissal of the motion." We must determine whether Pryor's allegations are sufficient.
The pertinent portion of Pryor's motion states as follows:
Lafler v. Cooper, 132 S.Ct. 1376, 1384, 182 L.Ed.2d 398 (2012) requires a remand when a defendant has rejected a plea offer more favorable than the sentence he received and has done so based on erroneous legal advice. Movant was on probation on a prior flagrant nonsupport conviction when he was arrested and charged a second time under the same statute. The Commonwealth offered to settle this case for a sentence far less than 15 years, but Movant's lawyer advised him not to accept the offer based on erroneous legal advice.The circuit court denied Pryor's RCr 11.42 motion without appointment of counsel and an evidentiary hearing concluding Pryor's general allegations of ineffective assistance of counsel were insufficient as a matter of law.
Counsel advised Movant to reject the plea offer knowing that after his first nonsupport conviction he had accrued new arrears of over $1,000, sufficient to sustain a new conviction on a new nonsupport offense, and he was subject to conviction as a PFO I. After he rejected the offer, he was convicted of flagrant nonsupport and sentenced to 15 years as a PFO I.
Movant's attorney was ineffective by informing Movant of "an incorrect legal rule" and advising him not to accept the Commonwealth's better offers. Movant was prejudiced because he "lost out on the opportunity to plead guilty and receive the lower sentence[s] that [were] offered to him." Lafler v. Cooper, 132 S.Ct. 1376, 1384, 182 L.Ed.2d 398 (2012). Under Lafler and Strickland this court must reverse Movant's conviction and order the Commonwealth to reinstate the previous offers.
The Commonwealth points out Pryor's motion did not state with specificity the terms of the plea offer Pryor was allegedly advised to reject or other facts sufficient to warrant appointment of counsel and an evidentiary hearing. Although his motion could have stated the precise terms of the offered plea, we deem Pryor's allegations sufficient to warrant appointment of counsel and an evidentiary hearing.
A prisoner is entitled to an RCr 11.42 hearing if "the motion on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction." Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967). When an evidentiary hearing is required and an indigent defendant has specifically requested in writing the appointment of counsel, counsel must be appointed. Fraser v. Commonwealth, 59 S.W. 3d 448, 453 (Ky. 2001).
The problem encountered by many indigent prisoners is a circuitous one. Appointment of counsel is not required unless an evidentiary hearing is ordered but to be entitled to an evidentiary hearing, the prisoner, not trained in the nuances of the law, must state with specificity the grounds for challenging his or her conviction. Recognizing this quandary, we do not impose the same standards on pro se prisoners as those applied to legal counsel. Commonwealth v. Miller, 416 S.W.2d 358, 360 (Ky. 1967).
Pryor alleges the Commonwealth offered a sentence "far less" than fifteen years. In light of the nature of his crime, it seems improbable that no plea offer would have been made by the Commonwealth and, whether he stated the details of the plea offer or not, the record does not conclusively refute his allegation. Notably, Pryor faced a minimum of ten-years' imprisonment upon conviction, a fact counsel had a duty to properly inform him of when considering whether to accept any plea offer.
Before concluding, we point out that if Pryor successfully demonstrates he received ineffective assistance of counsel, the trial court will be required to determine an appropriate remedy keeping in mind it is the prosecutor's role to decide "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). Therefore, it would be appropriate to return the proceedings to the point where the plea was offered, but before it was rejected. Pate v. Kentucky Depart. of Corrections, 2009-CA-000734-MR, 2013 WL 3808000, 8 (Ky.App. 2013).
Kentucky Rules of Civil Procedure 76.28(4)(c) permits this Court to cite an unpublished case rendered after January 1, 2003, where there is no published opinion adequately addressing the issue before the court.
We agree Pryor has raised a material issue of fact that cannot be conclusively resolved by an examination of the record and entitled to an evidentiary hearing. The trial court's order is reversed and the case remanded for an evidentiary hearing and appointment of counsel.
ALL CONCUR. BRIEF FOR APPELLANT: Susan Jackson Balliet
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