Opinion
NO. 2013-CA-000950-MR
01-15-2016
DAVID LEE HAYES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: David Lee Hayes, Pro se Sandy Hook, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Christian K. R. Miller Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE OLU A. STEVENS, JUDGE
ACTION NOS. 07-CR-000787 AND 09-CR-001232 OPINION
AFFIRMING BEFORE: NICKELL, STUMBO, AND VANMETER, JUDGES. VANMETER, JUDGE: David Lee Hayes brings this appeal from an order of the Jefferson Circuit Court denying relief pursuant to RCr 11.42. He alleges ineffective assistance of counsel for his trial counsel's failure to advise him of the extended period of parole ineligibility under the violent offender statute. We affirm.
Kentucky Rules of Criminal Procedure.
Facts
In indictment number 07-CR-000787, Hayes was indicted as a juvenile for eleven counts of complicity to commit robbery in the first degree, and one count of criminal syndication. Hayes pled guilty on October 16, 2007, to one count of robbery in the first degree, four counts of facilitation to robbery and one count of facilitation to criminal syndication: engaging in organized crime. He received thirteen years' imprisonment, and was committed to the Department of Juvenile Justice.
When Hayes turned eighteen, he was finally sentenced to five years' probation. Approximately three months later, Hayes, now an adult, robbed a convenience store. He was indicted in case 09-CR-001232 for one count of first-degree robbery and one count of possession of a handgun by a convicted felon. After a hearing on August 26, 2009, his probation was revoked and he was ordered to serve his thirteen-year sentence. Hayes pled guilty under indictment 09-CR-001232 to both first-degree robbery and possession of a handgun by a convicted felon. He received ten-year sentences on each count, to run concurrently with each other and consecutively with the offenses in indictment 07-CR-000787, for a total sentence of twenty-three years.
On August 23, 2012, Hayes's private counsel filed a motion pursuant to RCr 11.42 for his indictments in both 07-CR-000787 and 09-CR-001232, alleging that Hayes was not adequately informed of the longer period of parole ineligibility for violent offenders. The Jefferson Circuit Court conducted an evidentiary hearing, and denied Hayes's motion. This appeal follows.
On appeal, Hayes argues as follows: 1) his motion for relief under RCr 11.42 was timely filed in his 07-CR-000787 indictment; 2) his trial counsel was ineffective for failing to inform him of the 85% parole eligibility requirement for violent offenders; and 3) the trial court's factual findings in Hayes's 09-CR-001232 indictment were clearly erroneous.
Analysis
In Strickland, the United States Supreme Court promulgated a two-part test for ineffective assistance of counsel claims. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A petitioner is entitled to relief for the ineffective assistance of counsel if his counsel at trial provided representation that "fell below an objective standard of reasonableness," Strickland, 466 U.S. at 688, 104 S. Ct. at 2064, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068. "On appeal, the reviewing court looks de novo at counsel's performance and any potential deficiency caused by counsel's performance." Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008). However, "[e]ven though claims of ineffective assistance of counsel are subject to de novo review, a reviewing court should defer to the determination of facts made by the trial judge." Logan v. Commonwealth, 446 S.W.3d 655, 658-59 (Ky. App. 2014). Of course, "[a]dvising a defendant to plead guilty does not, in and of itself, constitute ineffective assistance of counsel." Russell v. Commonwealth, 992 S.W.2d 871, 875 (Ky. App. 1999). In order to prove prejudice in the context of a guilty plea, the movant must show 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, 52, 106 S. Ct. 366, 367, 88 L. Ed. 2d 203 (1985).
Hayes first argues that his counsel in his 07-CR-000787 indictment did not inform him of the longer period of parole ineligibility for violent offenders.
Kentucky Revised Statutes ("KRS") 439.3401(3)(a) provides "[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 shall not be released on probation or parole until he has served at least eighty-five percent (85%) of the sentence imposed." KRS 515.020(2) states that robbery in the first degree is a Class B felony. We note that trial courts, in order to ensure that criminal defendants are adequately informed of their parole eligibility, may include a description of parole eligibility for violent offenders in their Boykin v . Alabama, 395 U.S. 238, 241-42, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969), colloquies. Additionally, parole eligibility may be included in plea agreements with the Commonwealth.
In Padilla v. Kentucky, the United States Supreme Court held that failing to inform a criminal defendant of the potential for deportation as a result of his conviction constitutes ineffective assistance of counsel under the Sixth Amendment. 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).
Initially, Kentucky courts were reluctant to expand Padilla. "Padilla is narrowly written to apply to the consequences of guilty pleas solely in the context of immigration, and we cannot expand its scope." King v. Commonwealth, 384 S.W.3d 193, 195 (Ky. App. 2012). The Kentucky Supreme Court, however, has held that failing to inform a defendant of a longer period of parole ineligibility under the violent offender's statute could constitute ineffective assistance of counsel. Commonwealth v. Pridham, 394 S.W.3d 867, 880-81 (Ky. 2012).
The trial court held that Hayes's motion for his 07-CR-000787 indictment was untimely filed, adding as follows:
Even if the motion had been timely filed, there is still no basis for relief under RCr 11.42. The issue presented is whether or not counsel advised the Defendant of his parole eligibility per KRS [439.3401]. The record indicates that Emily Farrar-Crockett represented the Defendant at the time of his plea, but the Defendant failed to call her as a witness at hearing[,] [i]nstead offering the testimony of Patricia Eschner, who represented the Defendant at the time of his plea in the 09CR1232 indictment. Even if the Court were to determine that Ms. Echsner did not advise him of the application of KRS [439.3401], it would not be determinative of whether or not Ms. Farrar-Crockett so advised him at the time of his plea in the 07CR0787 indictment. The Defendant failed to meet his burden.
RCr 11.42(10) provides that:
Any motion under this rule shall be filed within three years after the judgment becomes final, unless the motion alleges and the movant proves either:
(a) that the facts upon which the claim is predicated were unknown to the movant and could not have been ascertained by the exercise of due diligence; or
(b) that the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively.
As the Commonwealth points out, our Supreme Court has previously held that "for purposes of post-conviction relief, a youthful offender's original sentencing order is a final judgment." Commonwealth v. Carneal, 274 S.W.3d 420, 428 (Ky. 2008). Hayes's youthful offender sentencing order was entered on February 28, 2008, and he did not file his RCr 11.42 motion until August 23, 2012. Because Hayes's motion for his 07-CR-00787 conviction was not filed until well outside the three-year period established in RCr 11.42(10), his motion would be considered untimely filed unless he could establish one of the exceptions in RCr 11.42(10)(a) or (b).
Hayes claims that he could not have discovered his longer period of parole ineligibility by due diligence until September 2, 2011, because that is when he was informed of his parole ineligibility in a letter. As a preliminary matter, assuming that Hayes actually became aware of the extended period of parole eligibility for violent offenders when he claims, this would not explain why he waited almost an entire year before he filed his motion. Regardless, at the hearing conducted over this matter, Hayes's counsel for his 09-CR-001232 indictment testified that she did advise Hayes of his parole ineligibility. The trial court noted as follows:
During the course of the hearing, the Defendant testified that Ms. Eschner did not advise him [ ] that his sentence would carry 85% parole eligibility. He further testified that had she so advised, he would not have entered a guilty plea. Ms. Eschner testified that she did not include mention of the 85% parole eligibility in the plea agreement nor did she expressly note having advised the
Defendant that the sentence was to be served at 85% parole eligibility. However, she testified that her notes reflected that she advised the Defendant of the implications of his guilty plea and sentence and that she recalled advising the Defendant was to be served at 85%. She further testified that she routinely advises clients of their parole eligibility in connection with plea agreements. There is no reason to believe she deviated from her practice here. Based on her testimony and her notes, the Court finds that Ms. Eschner did advise the Defendant that his sentence (to include the 13-year sentence in 07CR0787) would be subject to 85%.
The trial court here made a determination that Hayes was actually informed of his period of parole eligibility. We will not disturb a trial court's finding of fact unless clearly erroneous. CR 52.01. "A factual finding is not clearly erroneous if it is supported by substantial evidence." Garland v. Commonwealth, 458 S.W.3d 781, 786 (Ky. 2015) (quoting Hunter v. Hunter, 127 S.W.3d 656, 659 (Ky. App. 2003)). Furthermore, "[s]ubstantial evidence is evidence, when taken alone or in light of all the evidence, which has sufficient probative value to induce conviction in the mind of a reasonable person." Id. Having reviewed the record, we are satisfied that the trial court's ruling that Hayes was informed by his trial counsel of parole eligibility requirements was supported by substantial evidence.
Kentucky Rules of Civil Procedure.
Because the trial court determined that Hayes was actually informed of his period of parole ineligibility when he pled guilty in his 09-CR-001232 indictment, there is no reason to doubt that Hayes could have discovered with due diligence that his 07-CR-000787 indictment would be subject to the same parole requirements. Hayes was finally sentenced in 09-CR-001232 on August 26, 2009, and he was therefore informed of the requirement concerning parole eligibility for violent offenders prior to the time that the three-year period in RCr 11.42(10) had expired for his 07-CR-000787 indictment.
Certainly, his attorney's advice regarding this information should have put Hayes on notice, so that he could have discovered the underlying facts surrounding his RCr 11.42 motion in 07-CR-000787 with due diligence, especially because Hayes was charged with robbery in both indictments. Commonwealth v. Stacey, 177 S.W.3d 813, 816 (Ky. 2005) ("Stacey has not presented any evidence that his alleged mental incapacity was either unknown to him or could not have been ascertained by him by the exercise of due diligence during the three-year limitations period of RCr 11.42(10)."). These facts should have put Hayes on notice within the three-year period in RCr 11.42(10).
Because the trial court's ruling for Hayes's 09-CR-001232 was supported by substantial evidence, and Hayes's motion for his 07-CR-000787 claim was untimely filed, Hayes's claim that his counsel was ineffective for failing to advise of his parole eligibility under the violent offender statute is without merit.
Conclusion
In sum, we hold that Hayes's motion for relief pursuant to RCr 11.42 was untimely filed for his 07-CR-000787 indictment, because he could have discovered the parole consequences for his guilty plea with due diligence. Additionally, we hold that the circuit court's factual findings in regards to Hayes's parole eligibility were not clearly erroneous.
The order denying Hayes's motion for RCr 11.42 relief is therefore affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: David Lee Hayes, Pro se
Sandy Hook, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Christian K. R. Miller
Assistant Attorney General
Frankfort, Kentucky