Opinion
NO. 2015-CA-001310-MR
01-13-2017
DONALD BROCK APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Heather Hodgson Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky J. Hays Lawson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BELL CIRCUIT COURT
HONORABLE ROBERT V. COSTANZO, JUDGE
ACTION NO. 12-CR-00053 OPINION VACATING AND REMANDING
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BEFORE: COMBS, DIXON AND NICKELL, JUDGES. COMBS, JUDGE: Donald Ray Brock brings this appeal from an order of the Bell Circuit Court order denying his motion to vacate judgment and sentence pursuant to RCr 11.42. After our review, we conclude that Brock has stated a prima facie case of ineffective assistance of counsel. Therefore, we vacate the court's order and we remand this case for an evidentiary hearing.
Kentucky Rules of Criminal Procedure.
A Bell County Grand Jury indicted Brock for two counts of burglary in the second degree and for being a persistent felony offender in the first degree (PFO I). The Commonwealth offered a plea agreement providing for a total sentence of fifteen years on the two counts of burglary and dismissal of the PFO I charge.
According to Brock, his trial attorney advised him that if he accepted the offer, he would be eligible for parole in three years - or 20 percent of the fifteen-year sentence. She further advised that if he went to trial, the maximum sentence he could receive was thirty years with parole eligibility after six years - or 20 percent of the sentence.
Brock elected to proceed to trial. The record contains a signed notice of his rejection of the Commonwealth's offer in which Brock acknowledged that he had been offered a total sentence of fifteen years in exchange for a guilty plea and that he understood he could receive a maximum sentence of thirty years if he rejected the offer.
On the day of trial, the parties agreed to amend one of the second-degree burglary charges to burglary in the third degree. The jury found Brock guilty of burglary in the second degree, burglary in the third degree, and of being a PFO I. He was sentenced to twenty-years' imprisonment. Under the terms of KRS 532.080(7), the conviction on the PFO charge means that he is ineligible for parole until he serves a minimum of ten years, which is four years more than the six years that his counsel had allegedly advised him to be his maximum parole eligibility period.
Kentucky Revised Statutes.
Brock's conviction was affirmed on direct appeal. Brock v. Commonwealth, 407 S.W.3d 536 (Ky. 2013). Brock, pro se, thereafter filed a motion to vacate judgment and sentence pursuant to RCr 11.42 with an accompanying memorandum. The Commonwealth did not file a response. The trial court denied the motion without an evidentiary hearing. Brock then filed this appeal.
In order 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 as 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). "At the trial court level, '[t]he burden is upon the accused to establish convincingly that he was deprived of some substantial right which would justify the extraordinary relief afforded by ... RCr 11.42.' Dorton v. Commonwealth, 433 S.W.2d 117, 118 (Ky.1968). On appeal, the reviewing court looks de novo at counsel's performance and any potential deficiency caused by counsel's performance. Groseclose v. Bell, 130 F.3d 1161, 1164 (6th Cir.1997); McQueen v. Scroggy, 99 F.3d 1302, 1310-1311 (6th Cir.1996), overruled on other grounds by, In re Abdur'Rahman, 392 F.3d 174 (6th Cir.2004)." Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008)
An evidentiary hearing is required only "if there is a material issue of fact that cannot be conclusively resolved, i.e., conclusively proved or disproved, by an examination of the record." Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001) (internal citations omitted).
The trial court first noted that the failure to advise correctly regarding parole eligibility could rise to the level of ineffective assistance of counsel. The trial court then held that the first prong of Strickland had been met because trial counsel gave Brock professionally deficient advice in telling him that he would be eligible for parole after a maximum of six years if he went to trial when instead a PFO conviction would have meant that he would be eligible only after serving ten years. Nonetheless, the trial court held that the prejudice prong of Strickland had not been met because the difference in the number of years (ten as opposed to six) before parole eligibility was relatively small and because there was no guarantee that Brock would actually be granted parole after the minimum period. The trial court also noted that under the terms of the rejected plea offer, Brock would have been eligible for parole in three years. He decided to go to trial based on the erroneous advice that he would eligible for parole after six years if he received the maximum sentence. The trial court observed that apparently Brock
did not think that an increase in parole eligibility of three years (between that possible under the plea and that erroneously told him by counsel) was material, i.e., too much risk, for he rejected the plea upon that understanding of his eligibility. The question is whether an additional difference of four years in parole eligibility would have been so material to a rational person to
change the calculus and cause one to accept the plea offer.The trial court concluded that it was not. Brock was faced
with a potential thirty-year sentence if convicted at trial; the offer was for half that amount, and a dismissal of the PFO count. The evidence against him was significant, if not impervious. Under these circumstances, [Brock] rejected the offer, and it is very difficult to imagine that the crucial element that would have changed his calculus was the potential for four more years before being eligible for parole.
Brock argues that he did make the required showing of prejudice to meet the second prong of Strickland. He contends that if he had been accurately informed that he would have to serve ten years of his sentence rather than six before becoming eligible for parole, he would have elected to accept the Commonwealth's plea offer. He further contends that he is entitled to an evidentiary hearing on his motion.
Consideration of the terms of a plea bargain is deemed to be a critical stage in criminal proceedings entitling a defendant to effective assistance of counsel.
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 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.Lafler v. Cooper, 132 S. Ct. 1376, 1387, 182 L. Ed. 2d 398 (2012). The inquiry involves "what risks were attendant to trial versus the benefits to be gained vis à vis a plea bargain, and counsel's conduct with respect to communicating these factors to the defendant." Osborne v. Commonwealth, 992 S.W.2d 860, 864 (Ky. App. 1998).
The Kentucky Supreme Court has held that misadvice concerning parole eligibility can rise to the level of ineffective assistance of counsel -- particularly when parole eligibility can be easily determined by reading a "succinct, clear and explicit" statute. Commonwealth v. Pridham, 394 S.W.3d 867, 878 (Ky. 2012). In Brock's case, KRS 532.080(7) clearly and mandatorily provides that a person found to be a PFO I whose present offense is a Class A, B, or C felony shall not be eligible for probation until that person has served ten years. Burglary in the second degree is a Class C felony. KRS 511.030. Therefore, we agree with the trial court that Brock's allegation concerning his trial counsel's advice concerning parole eligibility indeed met the first prong of Strickland of deficient performance.
In order to establish the second prong of prejudice under Strickland, "the claimant must initially allege and ultimately show that absent counsel's error a meaningfully different result was a substantial likelihood, more likely than not or very nearly so." Pridham, 394 S.W.3d at 880. As a matter of law, the trial court determined that no prejudice resulted from the misadvice concerning parole eligibility. Again, the trial court held that the difference of four years before parole eligibility could not have been the crucial element that persuaded Brock to reject the plea offer. The court essentially substituted its judgement for Brock's own thought process and freedom of informed choice. Four years of liberty cannot be dismissed as "insignificant."
If an evidentiary hearing is not held (as it was not in this case), our review is limited to "whether the motion 'on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction.'" Sparks v. Commonwealth, 721 S.W.2d 726, 727 (Ky. App.1986) (quoting Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky.1967)). Brock's allegations are not conclusively refuted by the record. Indeed, they are not refuted at all. The speculation of the trial court as to the impact of an additional four years to be served does not serve to refute Brock's allegations. If it were relevant, it would in fact tend to reinforce his contentions.
Under Commonwealth v. Pridham, supra, Brock is clearly entitled to an evidentiary hearing. In Pridham, the claimant accepted a plea offer which provided for a thirty-year sentence. He later filed a motion pursuant to RCr 11.42 alleging that his attorney rendered ineffective assistance by mistakenly advising him that if he pleaded guilty, he would become eligible for parole after serving six years. However, the fact was that the violent offender statute applied and rendered him ineligible for parole for twenty years. Pridham argued that if he had been properly advised, he would have chosen to go to trial. The Kentucky Supreme Court concluded that the "sharply extended period of parole ineligibility" was "a serious enough and certain enough detriment that a person pleading guilty" was "entitled to know about it." Pridham, 394 S.W.3d at 878. The Commonwealth argued that even if Pridham had been accurately advised, he would not have risked going to trial and possibly incurring an even stiffer sentence. The Court refused to capitulate to mere conjecture, holding that even if the Commonwealth were correct, an evidentiary hearing was required to explore the parameters of Pridham's demonstration of prejudice:
...at this juncture, without the benefit of the record from an evidentiary hearing, this Court is only called upon to determine whether Pridham has stated a prima facie ineffective assistance claim. As noted above, at the pleading stage it is the movant's burden to allege specific facts which, if true, would demonstrate prejudice. While mere conclusory allegations to that effect are not enough, Pridham has met the minimal standard as to the prejudice prong.Id. at 880 (internal citation omitted).
Brock, too, has met the minimal standard as to the prejudice prong. An evidentiary hearing will provide him with the opportunity to establish that counsel misadvised him as he has alleged and that absent the misadvice, there is a reasonable probability that he would have insisted upon accepting the plea offer. Id. He is entitled to no less.
We vacate the order of the Bell Circuit Court denying Brock's RCr 11.42 motion and we remand this matter for an evidentiary hearing.
ALL CONCUR. BRIEFS FOR APPELLANT: Heather Hodgson
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky J. Hays Lawson
Assistant Attorney General
Frankfort, Kentucky