DARIEN PARROTT APPELLANT v. APPELLEE (2013)

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Darien Parrott appeals from the December 16, 2010, order of the Graves Circuit Court denying his Kentucky Rules of Criminal Procedure (“RCr”) 11.42 motion for relief.   Because Appellant has failed to show that the trial court abused its discretion, we affirm.

On May 5, 2009, Parrott was indicted on two counts of first-degree trafficking in a controlled substance, first offense.   Parrott was charged with knowingly selling cocaine to a confidential informant on two occasions.   Lab tests confirmed that the substance which was exchanged between Parrott and the informant was cocaine.

Parrott hired private counsel Kevin Bishop to represent him and initially pled not guilty.   However, Parrott subsequently moved to withdraw his plea and enter a guilty plea, in conformity with North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d (1970).   Pursuant to a plea agreement between Parrott and the Commonwealth, one of Parrott's charges was dismissed and the other was amended to possession of cocaine, first offense.   Additionally, the Commonwealth recommended a sentence of three years.   The plea offer form indicated that the reason for the amended charges was the reluctance of the confidential informant to testify at trial.   On February 16, 2010, the trial court accepted Parrott's plea;  found him guilty of one count of possession of cocaine, first offense;  and sentenced him to three years' imprisonment.   Parrott subsequently sought shock probation, which was denied.

On December 10, 2010, Parrott filed a motion, pursuant to RCr 11.42, to vacate, set aside, or correct his sentence.   Therein Parrott alleged that he had entered into his plea bargain involuntarily, unintelligently, and unknowingly.   Parrott further alleged that his trial counsel was ineffective for failing to prepare a defense, failing to investigate, failing to appeal the trial court's denial of his motion to suppress, and for advising him to plead guilty.   Parrott's motion was denied on December 16, 2010, without benefit of an evidentiary hearing.   This appeal followed.

We review a trial court's denial of RCr 11.42 relief under an abuse of discretion standard.  Bowling v. Commonwealth, 981 S.W.2d 545, 548 (Ky.1998).   An abuse of discretion has occurred when the trial court's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.  Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999) (citation omitted).

To succeed on a claim of ineffective assistance of counsel, a movant must meet two requirements.

First, the defendant must show that counsel's performance was deficient.   This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.   Second, the defendant must show that the deficient performance prejudiced the defense.   This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.   Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).   The trial court must therefore determine whether “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”  Id. at 694, S.Ct. at 2068.  “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  Id.

On appeal, Parrott restates his allegations of attorney error, namely that he was coerced into making a guilty plea;  that his attorney erred by failing to appeal a denied suppression motion;  that his attorney failed to present certain defenses and interview prospective witnesses;  and that the informant in the case was untrustworthy.  “[T]he effect of a plea of guilty is to waive all defenses other than that the indictment charges no offense.”  Quarles v. Commonwealth, 456 S.W.2d 693, 694 (Ky.1970).   Parrott failed to preserve any arguments relating to his defense, or the evidence against him.   Furthermore, Parrott fails to cite that portion of the record wherein his suppression motion can be found and our review of the record reveals none.   Therefore, his arguments pertaining to the evidence against him as well as the suppression motion are not properly before this Court and will not be considered.   Additionally, given that Parrott did not receive a trial, any arguments pertaining to his attorney's preparation and practice of said trial are moot.

It therefore appears that the only argument remaining for our review is that Parrott was coerced into his guilty plea.   Parrott's allegation is merely a bald assertion that he was coerced;  it is unsupported by any additional information.   Parrott's motion to enter a guilty plea, signed by Parrott, indicates that his plea was made “freely, knowingly, intelligently, and voluntarily.”   Therefore, according to the record, there is no evidence that Parrott was coerced.   Moreover, it has been held that an attorney's advice to accept a plea bargain, when that plea bargain results in a lesser sentence than what the accused would be facing if found guilty on all charges, does not constitute ineffective assistance.  Russell v. Commonwealth, 992 S.W.2d 871 (Ky.App.1999).   In this case, a guilty verdict from a jury would have yielded five to ten years' imprisonment on Parrott's first charge and ten to twenty years' imprisonment on his second charge, notwithstanding any enhancements.   Kentucky Revised Statutes (“KRS”) 218A.1412(3)(a);  KRS 532.060(2)(b)-(c).  In exchange for his guilty plea, Parrott only received three years' total imprisonment.   Given the circumstances, the trial court did not abuse its discretion when it denied Parrott's motion for relief.

It is not clear from Parrott's brief whether he is arguing that he was improperly denied an evidentiary hearing.   Therefore, in an abundance of caution, we will address the issue as though it were properly raised.   An evidentiary hearing is required “if the answer raises a material issue of fact that cannot be determined on the face of the record.”  RCr 11.42(5);  Stanford v. Commonwealth, 854 S.W.2d 742, 743 (Ky.1993).   Hence, an evidentiary hearing is unnecessary when the record refutes the claims of error or when the allegations, even if true, would not be sufficient to invalidate the conviction.  Id.;  Brewster v. Commonwealth, 723 S.W.2d 863 (Ky.App.1986).   As we have already concluded, the record is clear in refuting Parrott's bald allegation that he was coerced into entering a plea of guilty.   Accordingly, we find no error with the trial court's refusal to hold an evidentiary hearing.

For the foregoing reasons, the December 16, 2010, order of the Graves Circuit Court is affirmed.

ALL CONCUR.

CLAYTON, JUDGE: