Opinion
2023-CA-0433-MR
08-02-2024
TOMMY SMITH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Whitney B. Saffari Frankfort, Kentucky BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Jenny L. Sanders Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BELL CIRCUIT COURT HONORABLE ROBERT COSTANZO, JUDGE ACTION NO. 18-CR-00084
BRIEFS FOR APPELLANT: Whitney B. Saffari Frankfort, Kentucky
BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Jenny L. Sanders Assistant Attorney General Frankfort, Kentucky
BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND CALDWELL, JUDGES.
OPINION
CALDWELL, JUDGE
Tommy Smith appeals from the denial of his RCr 11.42 motion without an evidentiary hearing. We affirm.
Kentucky Rules of Criminal Procedure.
FACTS
In late November 2017, a criminal complaint was filed against Smith in Bell Circuit Court. This sworn statement recounted a law enforcement officer's recollection of recent events leading him to suspect Smith of criminal activity.
According to the complaint, the officer had recently attempted to stop a blue 1999 Ford Explorer late at night. The Explorer's driver slammed on the brakes, almost causing the officer and his partner to wreck. The officer pursued the Explorer for a time. The Explorer was traveling at a high rate of speed. The officer lost sight of the vehicle when its lights were turned off. The officer saw the lights turned back on as the Explorer turned onto a rough road. The officer ended the pursuit due to the high rate of speed and the roughness of the road.
The officer returned to the area the next morning to speak to nearby residents. Several residents said Tommy Smith was the driver of the blue 1999 Ford Explorer. One resident said Smith told him Angel Collett was a passenger in the vehicle and that Smith wrecked the vehicle on a mountain shortly after the pursuit. That resident also said the Explorer was still on top of the mountain where it had wrecked.
The officer located the Explorer and had it towed to a safer area. The officer looked through the already-open passenger door and saw a container with a white crystalline powder-like substance in it. The officer also saw oxygen hoses, fuel, and a Coleman fuel tank with a torch on it as well as a soda bottle with a broken plastic coat hanger on top. The officer believed these items were the makings of a generator to produce methamphetamine.
The officer also obtained a recorded statement from Collett. Collett identified Tommy Smith as the driver of the Explorer. Collett said she tried to get Smith to stop but he refused, saying he had a parole violation. She also said that Smith jumped out of the Explorer after wrecking it and ran down the mountain and that she had not seen him since then.
Again, this recounting of alleged events is from the officer's perspective as set forth in the criminal complaint against Smith.
In late January 2018, a Bell County grand jury indicted Smith for charges including first-degree fleeing or evading police, first-degree wanton endangerment of Collett and the two officers, first-degree possession of a controlled substance, and manufacturing methamphetamine, second or greater offense. This indictment also charged Smith with reckless driving, lack of proper vehicle registration, and possession of drug paraphernalia. And the indictment charged Smith with being a first-degree Persistent Felony Offender (PFO).
Smith entered a plea of not guilty to all charges in the indictment at arraignment, which occurred in late March 2018. Other than scheduling pretrial conferences and resolving bond matters, not much occurred in the case for the next few months based on our examination of the written record. For example, Smith filed no motions to suppress following his indictment and arraignment.
In early December 2018, Smith accepted the Commonwealth's offer on a plea of guilty and filed a motion to enter a guilty plea. The Commonwealth recommended dismissing the charges for reckless driving and lack of proper vehicle registration and amending the first-degree PFO charge to a second-degree PFO charge. And it recommended a twenty-year sentence of imprisonment on the second-offense methamphetamine manufacturing charge to run concurrently with shorter sentences (not exceeding five years' imprisonment) on each of the other remaining underlying charges in the indictment.
Following a hearing, the trial court accepted Smith's guilty plea after finding it to be voluntary. After reviewing a presentence investigative report, the trial court conducted a sentencing hearing and entered a written final judgment. Consistent with the Commonwealth's recommendations, the trial court sentenced Smith to twenty years' imprisonment for the second-offense methamphetamine manufacturing charge to be enhanced by the guilty plea to second-degree PFO. The trial court also sentenced Smith to five years' or less imprisonment respectively for each of the other remaining charges in the indictment to run concurrently with the twenty-year sentence for the second-offense manufacturing methamphetamine charge.
Smith filed a timely RCr 11.42 motion to vacate, set aside, or amend final judgment, alleging ineffective assistance of counsel. Specifically, Smith alleged his attorney told him: "that all of his offenses carried 20% parole eligibility, but that a conviction for Persistent Felony Offender First Degree would carry a parole eligibility of 10 years minimum." He also alleged his attorney said he could avoid the ten-year parole eligibility minimum by pleading to the reduced charge of second-degree PFO and that he would be parole-eligible after serving twenty percent or four years of the recommended twenty-year sentence.
Smith noted in his RCr 11.42 motion, however, that the manufacturing methamphetamine, second offense charge on which he entered a guilty plea was a Class A felony. Thus, as he was convicted of a Class A felony, Smith was classified as a violent offender who would not be eligible for parole until he served eighty-five percent or seventeen years of his twenty-year sentence.
Smith contended he was mis-advised by his attorney and entered a guilty plea which was not to his benefit. He alleged his attorney did not adequately communicate with him or explain matters sufficiently about parole eligibility. He asserted this caused him to think that reducing the PFO charge from first-degree to second-degree would make him parole-eligible much sooner and motivated him to take the plea offer. In essence, he argued that his attorney failed to advise him he would have to serve eighty-five percent of the negotiated twenty-year sentence because the manufacturing methamphetamine, second offense conviction was a Class A felony. He alleged he would have gone to trial or sought another plea offer had he been correctly advised about parole eligibility matters by his attorney. He requested an evidentiary hearing on his RCr 11.42 motion.
The trial court denied his RCr 11.42 motion without an evidentiary hearing. Smith filed a timely appeal. Further facts will be set forth as necessary.
ANALYSIS
Standard of Review
As we review the trial court's denial of Smith's RCr 11.42 motion, we must review its application of legal authority de novo (without deference) although any factual findings are reviewed only for clear error. Stiger v. Commonwealth, 381 S.W.3d 230, 234 (Ky. 2012). We also keep in mind that RCr 11.42 motions may be summarily denied without an evidentiary hearing if the motion's claims are refuted by the record or if the movant fails to specifically allege facts which, if true, would entitle him or her to relief. Id.
To be entitled to RCr 11.42 relief based on ineffective assistance of counsel, the "movant must show both that counsel provided deficient assistance and that he, the movant, was prejudiced as a result." Id. at 235.
If True, Smith's Attorney's Alleged Incorrect Advice About Parole Eligibility Would Constitute Deficient Assistance
In reviewing similar RCr 11.42 allegations that an attorney's failure to advise the client about being classified as a violent offender and the effect on parole eligibility, our Supreme Court stated: "[W]e agree with Stiger that counsel's alleged failure to take the violent offender statute into account when giving advice about parole eligibility would constitute, if proven, deficient performance." Stiger, 381 S.W.3d at 236 (citing Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)). See also Commonwealth v. Pridham, 394 S.W.3d 867, 878-79 (Ky. 2012). But regardless of any deficiency in Smith's counsel's allegedly erroneous advice about parole eligibility, the trial court did not err in denying Smith relief without an evidentiary hearing as Smith failed to allege facts which would make his rejecting the plea bargain a rational decision and so, he could not demonstrate prejudice.
Trial Court Did Not Err in Denying the RCr 11.42 Motion Without an Evidentiary Hearing as Smith Could Not Show Prejudice Based on the Record and Binding Precedent from our Supreme Court
In addition to showing deficient performance, an RCr 11.42 movant must also show prejudice to obtain relief on a claim of ineffective assistance of counsel. Stiger, 381 S.W.3d at 235 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
The trial court concluded that, regardless of any deficiency in counsel's performance, Smith had not shown prejudice. In the trial court's estimation, Smith had not shown prejudice because Smith's guilty plea had been entered voluntarily based on representations made in Smith's plea colloquy with the court. For example, the trial court noted that Smith affirmed he understood the charges against him, had reviewed the Commonwealth's evidence, was satisfied with his attorney's advice, and felt well-informed about the case.
The trial court also generally stated that it did not discern any viable arguments about prejudice from Smith's motion. And the court concluded there was no reasonable probability that Smith would have insisted on going to trial if he had been properly advised by counsel. It opined Smith failed to present "viable grounds for ineffective assistance of counsel rendering his guilty plea involuntary or unknowing that cannot be resolved by reference to the record." The trial court concluded no evidentiary hearing was necessary.
While it concluded no evidentiary hearing was necessary, the trial court did not specifically discuss how the record - besides any statements Smith made in entering his guilty plea - refuted any claims of prejudice from the alleged deficiency or why the trial court concluded there was no reasonable probability Smith would have gone to trial if properly advised by counsel.
As Smith points out, his conversations with counsel about parole eligibility prior to entry of his guilty plea occurred off the record so his statements made when entering his guilty plea cannot refute his allegations about the substance of his counsel's advice about parole eligibility. Furthermore, the trial court was not obliged to specifically inquire into parole eligibility matters at the guilty plea hearing. Stiger, 381 S.W.3d at 235. And based on our viewing of the guilty plea hearing, the trial court did not specifically inquire into parole eligibility matters at this hearing. So, we cannot agree with the trial court's determination that Smith's allegations about incorrect parole eligibility advice from counsel were refuted by Smith's statements at the guilty plea hearing that he was satisfied with counsel's advice and well-informed about his case. Nonetheless, as we explain in the body of the Opinion, regardless of any deficiency in counsel's performance, the trial court did not err in determining that prejudice could not be shown based on the record and that Smith was not entitled to an evidentiary hearing on his RCr 11.42 motion. See Haley v. Commonwealth, 586 S.W.3d 744, 751 (Ky. App. 2019) ("Where the record is clear that an ineffective assistance of counsel claim would ultimately fail the prejudice prong of Strickland, regardless of the outcome of a hearing on the deficiency prong, the trial court should be affirmed even in the absence of such a hearing.").
Nonetheless, we conclude the trial court reached the proper result based on the record before us and binding precedent from our Supreme Court. To the extent that our reasoning differs from the trial court, we have authority to affirm for independent grounds supported by the record. See Mark D. Dean, P.S.C. v. Commonwealth Bank &Tr. Co., 434 S.W.3d 489, 496 (Ky. 2014) ("If an appellate court is aware of a reason to affirm the lower court's decision, it must do so, even if on different grounds.").
If a RCr 11.42 movant entered a guilty plea rather than going to trial, the movant must show a reasonable probability that the movant would not have entered the guilty plea but for counsel's erroneous advice to establish prejudice. Stiger, 381 S.W.3d at 237 (citing Premo v. Moore, 562 U.S. 115, 129, 131 S.Ct. 733, 743, 178 L.Ed.2d 649 (2011)). And to obtain relief on an ineffective assistance claim, the movant must show the decision to reject a plea deal would be rational under the circumstances. Stiger, 381 S.W.3d at 237 (citing Padilla, 130 S.Ct. at 1485 and Williams v. Commonwealth, 336 S.W.3d 42 (Ky. 2011)).
Furthermore:
at the pleading stage it is movant's burden to allege specific facts which, if true, would demonstrate prejudice. A conclusory allegation to the effect that absent the error the movant would have insisted upon a trial is not enough. The movant must allege facts that, if proven, would support a conclusion that the decision to reject the plea bargain and go to trial would have been rational, e.g., valid defenses, a pending suppression motion that could undermine the prosecution's case, or the realistic potential for a lower sentence.Stiger, 381 S.W.3d at 237 (footnote and citation omitted).
Smith did not mention any suppression motions or identify any specific defenses in his RCr 11.42 motion. He simply alleged he would not have entered the guilty plea if his attorney had correctly advised him about violent offender classification and parole eligibility matters. And he did not discuss in his RCr 11.42 motion whether there was a "realistic potential for a lower sentence" if he went to trial. See Stiger, 381 S.W.3d at 237.
The Commonwealth asserts that Smith received the minimum sentence possible - presumably assuming Smith was convicted of the second- offense manufacturing methamphetamine offense and/or a combination of other charged offenses - and risked going to prison for life if he went to trial.
Smith could have faced life imprisonment based solely on a conviction for second-offense manufacturing methamphetamine even if not convicted of being a PFO at all. Kentucky Revised Statutes (KRS) 218A.1432(2) (second-offense manufacturing methamphetamine is a Class A felony); KRS 532.060(2)(a) (permitted sentence for a Class A felony conviction is twenty to fifty years' imprisonment or life imprisonment).
Smith did not discuss in his RCr 11.42 motion whether he would be likely to fare better at trial despite his receiving the minimum sentence for the manufacturing methamphetamine, second offense charge under the plea deal - to run concurrently with the lesser sentences for other convictions. He did contend in his RCr 11.42 motion that counsel failed to advise him that amending the PFO charge down from first degree to second degree had no practical effect on his sentence or parole eligibility since second offense or greater methamphetamine manufacturing is a Class A felony. See KRS 532.080(5)-(6)(a); KRS 532.060(2). But though this contention may indicate deficiency in counsel's performance if proven, this contention does not address prejudice - especially given Smith's receiving only a twenty-year sentence, the statutory minimum, under the plea deal.
Had Smith been convicted of the original charge of first-degree PFO, he could have been subjected to life imprisonment if he was also convicted of the Class A felony of second-offense manufacturing methamphetamine. KRS 532.080(6)(a). Instead, upon entry of his guilty plea pursuant to the
Commonwealth's offer, he was sentenced to the minimum sentence of twenty years' imprisonment for the second-offense methamphetamine manufacture. KRS 218A.1432(2); KRS 532.060(2)(a). And despite the statement in the trial court's written judgment that this sentence would be enhanced due to the guilty plea to second-degree PFO, the sentence for the second-offense methamphetamine manufacture charge was not actually enhanced as a practical matter since that is a Class A felony and he received the minimum sentence for a Class A felony.
According to Kentucky Online Offender Lookup records, Smith received a sentence of twenty years' imprisonment and would be eligible for parole after serving seventeen years.
Essentially, Smith could not have gotten a lighter sentence for second-offense methamphetamine manufacturing if he had been convicted of this charge following a trial. But Smith argues in his reply brief that it was not inevitable that he would be convicted of this charge if tried in response to the Commonwealth's contention that the evidence against Smith was strong.
Smith asserts in his reply brief that the items found in the vehicle could be found in any person's vehicle, that he was not caught in the act of manufacturing methamphetamine, and that the Commonwealth did not specifically state what the powdery white substance found in the vehicle turned out to be nor did it identify two or more chemicals found. He also suggests that his being the driver of the Explorer casts doubt on who, if anyone, was manufacturing methamphetamine in that vehicle and notes that Collett did not state anyone was manufacturing methamphetamine based on the officer's recollections in the criminal complaint. (These arguments were not made in the RCr 11.42 motion.)
Count IV of the indictment charged Smith with the offense of manufacturing methamphetamine, second or greater offense based on possession of equipment to manufacture methamphetamine with the intent to manufacture methamphetamine. Thus, it appears he was charged under KRS 218A.1432(1)(b) rather than under KRS 218.1432(1)(a). KRS 218A.1432(1) states: "A person is guilty of manufacturing methamphetamine when he knowingly and unlawfully: (a) Manufactures methamphetamine; or (b) With intent to manufacture methamphetamine possesses two (2) or more chemicals or two (2) or more items of equipment for the manufacture of methamphetamine."
Smith also argues it would have been rational for him to reject the plea deal if he had been properly advised of the effect of violent offender classification on parole eligibility. According to his reply brief:
It would have been rational to reject the plea and proceed to trial even if Mr. Smith was facing the potential sentence of 20 years to life. Best case scenario is that Mr. Smith is acquitted of all charges. The middle of the road scenario is the possibility of [conviction on] lesser included offenses, which would have been lower than a Class A felony. Worse case scenario is that Mr. Smith was convicted and sentenced to life. Still yet, he would have still been eligible for parole at 20 years. Due to his attorney's misadvice, Mr. Smith is serving a 20-year sentence at 85% parole eligibility, which is 17 years to the parole board. With only a three-year difference for parole eligibility on a life sentence, Mr. Smith would have taken his chances at trial, if not for the incorrect information he received from his trial counsel. Mr. Smith was prejudiced by his trial counsel's deficient performance because he was deprived of his constitutional right to go to trial.(Reply brief, p. 4.)
To resolve the parties' contrary arguments about whether Smith could show prejudice or was entitled to an evidentiary hearing to resolve this issue, we carefully consider the reasoning behind the somewhat contradictory results in Pridham and Stiger. Both Pridham and Stiger filed RCr 11.42 motions alleging ineffective assistance of counsel based on alleged incorrect advice about parole eligibility in light of violent offender classification. Yet Pridham was held to be entitled to an evidentiary hearing to resolve his RCr 11.42 motion, 394 S.W.3d at 879, whereas Stiger was held not to be entitled to such an evidentiary hearing. 381 S.W.3d at 237-38.
Again, in both cases, our Supreme Court held that if either movant was able to prove that his attorney had incorrectly advised him on matters of violent offender classification and the effects on parole eligibility, this would constitute deficient performance. Pridham, 394 S.W.3d at 878-79; Stiger, 381 S.W.3d at 236. But resolution of the two cases hinged on whether Stiger and Pridham had alleged specific facts warranting an evidentiary hearing on prejudice and/or whether the record refuted any assertion that it would be rational to reject the plea deal.
Stiger pled guilty upon the Commonwealth's offer to charges including five counts of first-degree robbery and of being a first-degree persistent felony offender. He received a sentence of twenty years' imprisonment. He alleged in his RCr 11.42 motion that his attorney told him he would be eligible for parole after serving twenty percent of his sentence, despite first-degree robbery being a violent offense for which one must serve at least eighty-five percent of his/her sentence before parole eligibility. Id. at 232.
Our Supreme Court determined that Stiger could not demonstrate prejudice based on the record. Our Supreme Court pointed to strong evidence, including several eyewitness accounts, of violent behavior supporting five charges of first-degree robbery in Stiger. And it concluded that any decision to reject the twenty-year sentence plea deal could not have been rational under the facts -especially since Stiger received the minimum sentence for one count of first-degree robbery as enhanced for being a PFO:
Stiger faced five counts of first-degree robbery, for all of which the Commonwealth's evidence appears to have been formidable, and an allegation of first-degree PFO. Stiger maintains that there is some question about one of his prior convictions and about the admissibility of his confession to the two video store robberies, but there does not appear to be any doubt that Stiger was at least a second-degree PFO, and there were victims ready to identify him as the perpetrator of at least three of the five robberies. Stiger has alleged no defenses to those three robberies. As a PFO of either degree, had Stiger been convicted of even one first-degree robbery, he would have been subject to a minimum sentence of twenty years - the sentence he received under the plea bargain - and would also have been subject to the violent offender statute's parole eligibility restrictions. It thus appears
that Stiger's chances of improving on his outcome by going to trial were not just exceedingly slim, but virtually non-existent. His chances of faring worse, on the other hand, were considerable. As noted, the Commonwealth had substantial evidence of seven class B felonies, several of which involved significant acts of violence. That evidence together with Stiger's status as a repeat offender would have made for a high risk at trial of a sentence far above the twenty-year minimum. While it is true that even had things gone against Stiger at trial his parole ineligibility would have been extended, at most, from seventeen years to twenty, parole eligibility would not have been his only concern. Stiger was in his twenties at the time of his plea, so the difference between the twenty-year sentence offered to him and the much longer sentence (potentially seventy years or life) he would have risked at trial was very real. Because Stiger thus had little, if any, chance of improving his outcome at trial, but could easily have fared far worse, we are not persuaded that, had he been correctly advised about the parole consequences of his plea, there is a reasonable probability that he would have rejected the plea bargain and insisted upon a trial. It simply would not have been a "rational" choice under the circumstances.Id. at 237-38 (footnote omitted). Thus, our Supreme Court affirmed the denial of the RCr 11.42 motion without an evidentiary hearing in Stiger.
In contrast, our Supreme Court affirmed this Court's vacating the denial of RCr 11.42 relief and remanding for an evidentiary hearing in Pridham to resolve similar claims of ineffective assistance of counsel for alleged incorrect advice about parole eligibility - despite noting the strength of the Commonwealth's evidence of guilt. 394 S.W.3d at 880-81. The key distinction with Stiger (rendered the same day) appears to be the fact that Pridham did not receive the minimum sentence for the offenses to which he pled guilty - although the differing ages of Pridham and Stiger were also noted.
Pridham accepted the Commonwealth's offer to plead guilty to all charged offenses after the jury selection portion of trial began. He had been indicted for manufacturing methamphetamine, second offense (a Class A felony); two Class D felonies; and being a first-degree PFO. Under the plea deal, he was sentenced to thirty years' imprisonment (ten years more than the minimum twentyyear sentence for second-offense methamphetamine manufacturing) - to run concurrently with two five-year terms of imprisonment apparently imposed for the Class D felonies. Id. at 871.
The Supreme Court explained why it concluded that an evidentiary hearing was necessary:
To be sure, as the Commonwealth points out, the seemingly egregious difference in this case between six years of parole ineligibility, as allegedly represented by Pridham's counsel, and twenty years as mandated by statute is something of a red herring. Had Pridham been correctly advised that he was charged with an offense coming under the violent offender statute, he would have faced a choice not between six years of parole ineligibility and twenty, but between the Commonwealth's thirty-year plea offer with its twentyyear parole ineligibility, and going to trial after which he was almost certain to be convicted of a class A felony -he was after all caught virtually red-handed and confessed - whereupon he would have been subject to a base sentence of twenty years to life with the possibility of PFO enhancement under KRS 532.080 as well. The
Commonwealth maintains that even had he been accurately advised, Pridham would not have risked a trial and the likelihood of an even stiffer sentence. The Commonwealth may well be right in its analysis but 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.
Even had Pridham been sentenced to life imprisonment, his parole ineligibility would still have been twenty years. It would not be unreasonable, arguably, for a fifty-seven year old man to find little difference between a thirty-year sentence and a life sentence. Had he been correctly advised, in other words, Pridham might have concluded that he risked virtually nothing by going to trial. He had no realistic chance of acquittal but he had a slim chance of receiving a sentence of twenty years with parole eligibility in about seventeen years. So, arguably, correct advice could have resulted in his making a different choice. The Court of Appeals did not err, therefore, by ruling that Pridham's allegations of prejudice, like his allegations of counsel's deficient performance, stated a claim and so warrant an evidentiary hearing. On remand, the trial court will have the opportunity to hear from Pridham and the counsel who allegedly misadvised him and on a complete record will be in a position to determine whether Pridham was, in fact, prejudiced by erroneous advice that led to a thirtyyear sentence plea deal.Id. at 880-81 (footnote omitted). See also Stiger, 381 S.W.3d at 236 n.2 (stating that our Supreme Court remanded for an evidentiary hearing in Pridham because Pridham alleged facts indicating he had a realistic chance of a lower sentence even if acquittal was unlikely and thus an evidentiary hearing was necessary to resolve whether the incorrect advice was given and if so, whether it would have been rational for Pridham to reject the plea deal and go to trial).
Despite concluding an evidentiary hearing was necessary under the facts in Pridham, our Supreme Court pointed to its decision in Stiger (rendered the same day) as illustrating: "[T]hat where the defendant fails to plead facts showing the decision to go to trial would have been rational under the circumstances, the prosecution's evidence is strong and the defendant received the minimum sentence for the charged offense an evidentiary hearing may be unnecessary." Pridham, 394 S.W.3d at 880 n.9.
Unlike Pridham who received a thirty-year sentence for the same offense, id. at 871, Smith received the minimum sentence for second-offense manufacturing methamphetamine. Like Smith's receiving this minimum sentence, Stiger received the minimum sentence for a PFO-enhanced conviction on first-degree robbery and first-degree burglary charges in his plea deal. Stiger, 381 S.W.3d at 234.
Like Stiger who was charged with multiple counts of first-degree robbery, Smith faced several serious charges if he went to trial. Even if Smith had been acquitted of the second-offense manufacturing methamphetamine charge, he risked conviction as a first-degree PFO and for three counts of wanton endangerment among other charges.
Even if Smith had been acquitted of methamphetamine manufacture and convicted of only one underlying Class D felony, he could have received twenty years' imprisonment if the sentence for the Class D felony were enhanced upon a first-degree PFO conviction. KRS 532.080(6)(b).
While our Supreme Court stated or implicitly suggested that there was strong evidence of guilt on the charged offenses in both Stiger and Pridham, there is only the officer's sworn statement in the criminal complaint in the record on appeal here. Nonetheless, despite the lack of other evidence such as laboratory test results or other witness's statements in the record before us, the officer's sworn statement recounted his directly witnessing behavior supporting the wanton endangerment and fleeing or evading police charges as well as seeing items in the Explorer arranged in a manner suggesting their use in methamphetamine manufacture. And Smith did not point to any suppression motions or identified defenses in his RCr 11.42 motion. See Stiger, 381 S.W.3d at 237-38 (noting lack of defenses to at least some of the charged robberies).
See Stiger, 381 S.W.3d at 238 ("[G]iven the strength of the prosecution's evidence on the multitude of charges, there is every reason to think that he would have fared worse."). Cf. Pridham, 394 S.W.3d at 880 (despite ultimately remanding for an evidentiary hearing to determine if prejudice was shown due to Pridham's allegations of specific facts, stating Pridham was "almost certain to be convicted of a class A felony - he was after all caught virtually redhanded and confessed ....").
Perhaps Smith's age at the entry of his guilty plea (then in his midforties) was closer to that of Pridham than that of Stiger at the time they entered guilty pleas. However, while a man in his late fifties like Pridham would not necessarily be expected to live longer than his thirty-year sentence, see 394 S.W.3d at 880, a man in his mid-forties like Smith would often have a reasonable prospect of living substantially longer than the twenty-year sentence he received.
Despite this distinction, Smith argues that there was little practical difference between his negotiated twenty-year sentence under the plea deal and a potential life sentence if he went to trial in terms of parole eligibility. He correctly points out he would be eligible for parole after serving seventeen years under the plea deal and after serving twenty years if convicted of a Class A felony and sentenced to life imprisonment. See KRS 439.3401.
Under KRS 439.3401(1)(b) and (3)(a), a defendant convicted of a Class A felony is classified as a violent offender and violent offenders sentenced to a term of years must serve eighty-five percent of their sentence before they become eligible to be released on parole. Under KRS 439.3401(2), a defendant convicted of a Class A felony who receives a life sentence is not eligible for parole until he/she has served at least twenty years. See also 501 Kentucky Administrative Regulations (KAR) 1:030 Section 3(e)(4)(b) (person convicted of a Class A felony after June 2007 is eligible for parole after serving twenty years if sentenced to life imprisonment, but if sentenced to a term of years, that person is eligible for parole after serving eighty-five percent of his sentence or twenty years, whichever is less).
But our Supreme Court rejected a similar argument about the practical effect of a twenty-year sentence versus life imprisonment in terms of parole eligibility in Stiger, recognizing that parole eligibility is not always paramount. 381 S.W.3d at 238 ("While it is true that even had things gone against Stiger at trial his parole ineligibility would have been extended, at most, from seventeen years to twenty, parole eligibility would not have been his only concern.").
Despite any lack of significant difference in parole eligibility, both Smith and Stiger risked much higher sentences than their respective twenty-year sentences under plea deals if they went to trial - especially as both were repeat offenders. See id. And despite Smith being in his forties in contrast to Stiger being in his twenties at the time of their respective guilty pleas, their life expectancies would likely surpass the twenty years they received as negotiated sentences. In other words, "Under those circumstances, there is no reasonable probability that Stiger [or Smith] with the benefit of correct advice, would have rejected the plea deal and gone to trial." See id.
This is especially true as Smith did not point to a suppression motion or specifically identify a defense to his charges in his RCr 11.42 motion. Thus, like Stiger, Smith has failed to allege specific facts which should show prejudice resulting from any incorrect advice from counsel and he is not entitled to an evidentiary hearing. See id.
In sum, this case is strikingly similar to Stiger and substantially distinct from Pridham. So, under the facts here (especially the lack of suppression motions or specific asserted defenses and Smith's receiving the minimum sentence), we discern no reversible error in the trial court's denying Smith RCr 11.42 relief without an evidentiary hearing based on the record and binding precedent from our Supreme Court.
Smith's Citation to Recent United States Supreme Court Precedent in His Reply Brief Does Not Change our Reliance on Binding Kentucky Precedent
We conclude Smith is not entitled to an evidentiary hearing as we must follow binding precedent from our Supreme Court, SCR 1.030(8)(a). However, we note Smith's argument that recent precedent from the United States Supreme Court may call for prejudice analysis based solely on the defendant's decision making and not "potential, or even likely, outcomes of proceedings that never took place[.]" (Reply brief, page 2 (citing Lee v. United States, 582 U.S. 357, 137 S.Ct. 1958, 198 L.Ed.2d 476 (2017) (hereinafter Lee))).
Rules of the Kentucky Supreme Court.
Smith further suggests Lee calls for determining whether rejecting a plea deal was rational considering the factors most important to the defendant rather than unduly focusing on the likelihood of conviction or potential sentence if the defendant went to trial. Smith states he only entered his guilty plea because he thought he would be eligible for parole in four years. This suggests that he focused on achieving parole eligibility as soon as possible, in his view akin to Lee's identifying avoiding deportation as the determinative issue in Lee's making decisions regarding whether to enter a guilty plea or go to trial.
We do not perceive Lee as establishing a new federal constitutional rule, however. And Lee is factually distinguishable since deportation is a "particularly serious penalty" and since Lee alleged particular facts why he was more concerned with avoiding deportation than with simply reducing his term of imprisonment - such as Lee's having lived in the United States for most of his life and his elderly parents' lacking other relatives in the United States to care for them. 582 U.S. at 370, 137 S.Ct. at 1968. In contrast, Smith did not allege any particular facts why he would be more concerned with parole eligibility than with the length of his sentence in his RCr 11.42 motion. Thus, we do not perceive anything in Lee as affecting our application of the Kentucky Supreme Court's preLee precedent such as Pridham and Stiger to this case.
Furthermore, we are unaware of any opinions from our Supreme Court specifically considering whether the prejudice analysis called for in its prior precedent such as Pridham and Stiger should be changed due to the United States Supreme Court decision in Lee. Perhaps our Supreme Court might consider tweaking its guidance on prejudice analysis based on Lee if presented with an argument for doing so in a case properly before it. However, we do not perceive Lee as having superseded or overruled Stiger or Pridham in any way such that we may disregard either otherwise binding opinion from our Supreme Court. Furthermore, we lack the authority to overrule these published opinions from our Supreme Court ourselves. SCR 1.030(8)(a). So, applying binding precedent from our Supreme Court such as Stiger and Pridham, we are compelled to affirm the trial court's denial of Smith's RCr 11.42 motion without an evidentiary hearing upon the record before us.
Further arguments or issues raised in the parties' briefs but not discussed herein have been determined to lack merit or relevancy to our resolving this appeal.
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the Bell Circuit Court.
ALL CONCUR.