Opinion
NO. 2011-CA-000947-MR
12-07-2012
LENNY R. WADE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Margaret A. Ivie Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway, Attorney General of Kentucky Todd D. Ferguson, Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BRECKINRIDGE CIRCUIT COURT
HONORABLE ROBERT A. MILLER, JUDGE
ACTION NOS. 08-CR-00078 & 08-CR-00123
OPINION
AFFIRMING
BEFORE: CLAYTON, KELLER, AND MAZE, JUDGES. KELLER, JUDGE: Lenny R. Wade (Wade) appeals from the trial court's denial of his Kentucky Rules of Crimial Procedure (RCr 11.42) motion to vacate judgment without an evidentiary hearing. On appeal, Wade argues that the court erred because the record does not refute his allegations that trial counsel failed to adequately advise him of the facts, the law, and his rights before he entered his guilty plea. The Commonwealth argues to the contrary. Having reviewed the record, we affirm.
FACTS
On August 6, 2008, the grand jury indicted Wade for flagrant non-support based on an arrearage of $5,505.50 in child support. Wade was released on bond but failed to appear for a hearing and, on November 5, 2008, the grand jury indicted him for bail jumping in the first degree. Wade was arrested on that charge and, through his attorney, entered into plea negotiations with the Commonwealth. The Commonwealth offered a sentence of three years' imprisonment probated for five years on the flagrant non-support charge and one year imprisonment on the bail jumping charge if Wade would agree not to seek early release. Wade rejected that offer, first seeking diversion, then offering to plead guilty to both charges in exchange for a sentence of three years' imprisonment probated for five years. The Commonwealth rejected that counter proposal and the parties reached a final plea agreement that provided for five years' imprisonment on each charge, to run consecutively, probated for five years. As part of the agreement, Wade was required to pay child support and to refrain from criminal activity.
Before entering his guilty plea, Wade signed a document indicating that the possible sentence for each charge was one to five years' imprisonment. Furthermore, Wade signed a motion to enter guilty plea indicating that: he understood his rights; he had reviewed the Commonwealth's offer that set forth the possible penalty ranges; and he was in fact guilty of the charges.
During the plea hearing, Wade stated that counsel had explained the charges and the possible penalties and that he understood the Commonwealth's offer. Furthermore, Wade stated he had not been threatened or coerced into agreeing to plea; he understood and could read English; he had read and understood the plea agreement documents; and he was satisfied with counsel's representation. Following the hearing, the court accepted Wade's plea.
At the sentencing hearing, Wade affirmed that he had read, signed, and initialed the order of probation indicating he understood the terms and conditions of his release and agreed to comply with those terms and conditions. Furthermore, the court advised Wade that, if he violated the terms of his probation, he would likely return to prison. Wade indicated that he understood. The court then imposed a sentence consistent with the plea agreement.
On July 13, 2009, less than three months after the court imposed judgment, the Commonwealth filed a motion to revoke Wade's probation. In support of that motion, the Commonwealth attached an affidavit from the county attorney's office indicating that Wade had not paid his child support. The Commonwealth also filed a probation and parole officer's report indicating that Wade had been arrested on June 9, 2009, and charged with first-degree possession of cocaine, second offense; use/possession of drug paraphernalia, first offense; and tampering with physical evidence.
On the initial revocation hearing date, Wade stated that he was dissatisfied with counsel because counsel had not adequately explained the plea agreement and its implications. Contrary to his testimony at the plea hearing, Wade also stated that he had not been able to read or understand the plea documents he had signed. The court delayed the hearing, in part, so that Wade could retain new counsel. It appears that Wade was unable to do so, because he did not have new counsel at the subsequent and final revocation hearing. Following that hearing, during which Wade did not present any exculpatory evidence, the court revoked his probation.
On March 30, 2010, Wade filed an RCr 11.42 motion to vacate his sentence arguing that his counsel had not adequately advised him prior to entry of his guilty plea. The Commonwealth filed a response, and the court denied Wade's motion without holding an evidentiary hearing. Wade then filed this appeal.
STANDARD OF REVIEW
In considering ineffective assistance of counsel, the reviewing court must focus on the totality of evidence before the judge or jury and assess the overall performance of counsel throughout the case in order to determine whether the identified acts or omissions overcome the presumption that counsel rendered reasonable professional assistance. See United States v. Morrow, 977 F.2d 222, 230 (6th Cir. 1992); Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S. Ct. 2574, 2586, 91 L. Ed. 2d 305 (1986).
ANALYSIS
The test for determining ineffective assistance of counsel on a guilty plea is whether
counsel made errors so serious that counsel's performance fell outside the wide range of professionally competent assistance; and . . . that the deficient performance so seriously affected the outcome of the plea process that, but for the errors of counsel, there is a reasonable probability that the defendant would not have pleaded guilty, but would have insisted on going to trial.Sparks v. Commonwealth, 721 S.W.2d 726, 727-28 (Ky. App. 1986). If the record refutes the issues raised by a defendant in his RCr 11.42 motion, the court is not required to hold an evidentiary hearing. RCr 11.42(5); Parrish v. Commonwealth, 272 S.W.3d 161, 166 (Ky. 2008).
As reflected in the record, Wade testified and executed documents indicating that he understood the charges against him, the potential implications of his plea, the rights he was waiving, and the conditions of his probation. Therefore, his argument that he was not adequately informed is without merit. Furthermore, Wade testified that he was satisfied with his counsel's performance. Therefore, his argument that counsel's performance was otherwise deficient is without merit.
Finally, we note that Wade's argument that he would have insisted on going to trial if he had been more completely informed or effectively represented is also meritless. Wade participated in plea negotiations with the Commonwealth, during which the Commonwealth offered significantly shorter terms of imprisonment. However, those offers would have required Wade to immediately begin serving his sentence. It appears from the plea negotiations that Wade rejected those offers because he wanted to get out of jail and to eliminate the possibility of any additional immediate imprisonment. The plea agreement Wade accepted, and that his counsel negotiated, accomplished those goals. Had Wade rejected the Commonwealth's offer, he would have likely been found guilty at trial as he has offered no defense to the charges. Furthermore, he likely would have remained in jail pending trial and would have received a sentence of some term of imprisonment. Because going to trial would have resulted in continued imprisonment, a fate Wade sought to avoid, there is no reasonable probability that Wade would have insisted on going to trial.
CONCLUSION
The record reflects that Wade's counsel performed within the wide range of acceptable and competent professional assistance. Furthermore, the record reflects that there is no reasonable probability that Wade would have rejected the Commonwealth's plea offer and insisted on going to trial had counsel represented him differently. Therefore, we affirm the trial court's denial of his RCr 11.42 motion without holding an evidentiary hearing.
ALL CONCUR. BRIEF FOR APPELLANT: Margaret A. Ivie
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway,
Attorney General of Kentucky
Todd D. Ferguson,
Assistant Attorney General
Frankfort, Kentucky