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Court of Appeals of Kentucky.


NO. 2009–CA–001823–MR

Decided: May 04, 2012

BEFORE:  ACREE AND STUMBO, JUDGES;  LAMBERT, Double SENIOR JUDGE. BRIEFS FOR APPELLANT:  Heather McGregor Rachel G. Cohen Assistant Public Advocates LaGrange, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky



Joseph Sharer appeals from the judgment of the Warren Circuit Court denying his request for post-conviction relief filed pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42.   Appellant contends that the circuit court erred in denying his RCr 11.42 motion without holding an evidentiary hearing.   He alleges that his plea was the result of ineffective assistance of counsel because his attorney:  (1) failed to advise him that he would not be eligible for parole until he completed a sex offender treatment program;  and (2) failed to fully investigate the facts of the case.   After reviewing the record and the parties' briefs, we conclude that Appellant's motion was properly denied without an evidentiary hearing.   Thus, we affirm.

Facts and Procedural Background

On November 9, 2005, the Warren County Grand Jury indicted Appellant on counts of first-degree sodomy, first-degree sodomy by complicity, and being a second-degree persistent felony offender.   The charges stemmed from an incident at the Warren County Regional Jail in which an inmate was attacked and sexually assaulted by a number of other inmates.   Appellant was among those alleged to have taken part in the assault.

The record reflects that following an altercation with another inmate, the victim was beaten by several of his cellmates.   He was then dragged into the shower area and stripped of his clothing.   Other inmates who did not participate in the unfolding events described the sounds of an assault in the shower area and demands of a sexual nature.   Those witnesses also indicated that the victim was sexually assaulted in his bunk afterwards.   The assault apparently continued well into the night.

Once it was discovered that the victim had been assaulted he was questioned and transported to the medical center for treatment and evaluation.   Throughout the investigation of the incident the victim was reluctant to offer details of the assault.   However, he did inform medical staff that he had initially been assaulted by two African–American men but that other individuals had also jumped him.   A number of witnesses advised investigators that Appellant assisted with and was involved in the assault.

On August 30, 2006, Appellant entered an AlfordDouble plea of guilty to two amended charges of complicity to first-degree sexual abuse and the PFO 2 nd charge.   In exchange for the plea, the Commonwealth agreed to recommend a four-year sentence on each count of sexual abuse.   The sentence would be enhanced to eight years as a result of Appellant's PFO 2 nd status with the Commonwealth recommending probation.

At the ensuing plea hearing, Appellant confirmed that he could read and write.   He stated that he had read the plea agreement and that he had initially had questions about it but that his attorney had addressed them.   When the trial judge asked if Appellant had told everything he knew about the case to his attorney, Appellant confirmed that he had.   Appellant's attorney also indicated that he had received and reviewed discovery tendered by the Commonwealth.   This discovery included medical reports and eyewitness statements concerning the subject incident.   Appellant told the trial judge that he was very satisfied with his counsel and that his attorney was very intelligent, had a thorough working knowledge of the case, had explained everything he said he would, and had not failed or refused to do anything asked of him.   Appellant further stated that he needed no more time to talk about the case with his attorney.   The trial judge then explained to Appellant the various rights he would be waiving by entering a plea of guilty.

As part of the plea, Appellant was required to submit to a sexual offender evaluation, submit to DNA sampling, complete a sexual offender treatment program (SOTP), and register as a sex offender.   Appellant affirmed to the trial judge that he understood the terms of the plea agreement and that after reviewing the evidence against him with his attorney, he believed he could be found guilty by a jury if he chose to go to trial.   When the trial judge asked Appellant if his signature on the plea agreement meant that he had read, understood, and accepted the terms, conditions, and consequences of the agreement, Appellant answered in the affirmative.   The trial judge ultimately accepted Appellant's plea of guilty after finding that it was made knowingly, intelligently, and voluntarily.

On January 2, 2007, the trial court imposed the recommended eight-year sentence and placed Appellant on probation for five years.   Appellant was also ordered to complete the SOTP and to submit to DNA sampling.   On June 25, 2007, Appellant's probation was revoked as a result of his failure to comply with the terms of his probationary supervision.

On May 11, 2009, Appellant filed a “motion to vacate, set aside, or correct judgment pursuant to RCr 11.42” in which he alleged that his conviction should be set aside because he was denied the effective assistance of counsel.   Specifically, Appellant alleged that his attorney had failed to advise him that he was required to complete the SOTP before he would be eligible for parole. Double Appellant also alleged that his attorney had failed to adequately investigate the charges against him.   The circuit court denied Appellant's motion without holding an evidentiary hearing.   This appeal followed.


On appeal, Appellant presents the same arguments that he made before the circuit court and again asserts that he was denied the effective assistance of counsel in entering his guilty plea.   Because an evidentiary hearing was not held in this case, our review is focused on “whether the motion on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction.”  Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky.1967).

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court set forth a two-pronged analysis to be used in determining whether the performance of a convicted defendant's trial counsel was so deficient as to merit relief from that conviction:

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.

Id., 466 U.S. at 687, 104 S.Ct. at 2064.   The standard set out in Strickland was recognized and adopted by the Supreme Court of Kentucky in Gall v. Commonwealth, 702 S.W.2d 37, 39–40 (Ky.1985).

For a defendant to prove ineffective assistance of counsel in instances where a guilty plea has been entered, he must meet a modified Strickland standard and show:

(1) that counsel made errors so serious that counsel's performance fell outside the wide range of professionally competent assistance;  and (2) 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);  see also Hill v. Lockhart, 474 U.S. 52, 58–59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985).   To be valid, a guilty plea must represent a voluntary and intelligent choice among the alternative courses of action open to the defendant.  North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970);  Sparks, 721 S.W.2d at 727.

Where a defendant enters a guilty plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice “was within the range of competence demanded of attorneys in criminal cases.”  Hill, 474 U.S. at 56, 106 S.Ct. at 369, quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970).   The voluntariness of the plea is determined from the “totality of the circumstances.”  Commonwealth v. Elza, 284 S.W.3d 118, 121 (Ky.2009), quoting Rodriguez v. Commonwealth, 87 S.W.3d 8, 10–11 (Ky.2002);  see also Kotas v. Commonwealth, 565 S.W.2d 445, 447 (Ky.1978) (holding that “the validity of a guilty plea is determined not by reference to some magic incantation recited at the time it is taken but from the totality of the circumstances surrounding it”).   In making such a determination “the presumption of voluntariness inherent in a proper plea colloquy” is juxtaposed “with a Strickland v. Washington inquiry into the performance of counsel.”  Elza, 284 S.W.3d at 121, quoting Bronk v. Commonwealth, 58 S.W.3d 482, 486 (Ky.2001).   Ultimately, “the trial court must evaluate whether errors by trial counsel significantly influenced the defendant's decision to plead guilty in a manner which gives the trial court reason to doubt the voluntariness and validity of the plea.”  Bronk, 58 S.W.3d at 487.

We further note that “[a] defendant is not guaranteed errorless counsel, or counsel judged ineffective by hindsight, but counsel likely to render and rendering reasonably effective assistance.”  Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky.2001), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky.2009);  see also Sanborn v. Commonwealth, 975 S.W.2d 905, 911 (Ky.1998), overruled on other grounds by Leonard, supra.   Thus, in conducting our analysis, we must be highly deferential to counsel's performance, and we “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.”   Strickland, 466 U.S. at 689, 104 S.Ct. at 2065;  see also Hodge v. Commonwealth, 116 S.W.3d 463, 469 (Ky.2003), overruled on other grounds by Leonard, supra.   Moreover, “[i]t is well established that the advice by a lawyer for a client to plead guilty is not an indication of any degree of ineffective assistance.”  Beecham v. Commonwealth, 657 S.W.2d 234, 236–37 (Ky.1983).   Finally, “[i]f trial counsel's performance was determined to be deficient, but it appears the end result would have been the same, the appellant is not entitled to relief under RCr 11.42.”  Brewster v. Commonwealth, 723 S.W.2d 863, 864 (Ky.App.1986).

Appellant first argues that his trial counsel was ineffective for failing to advise him that he had to complete the SOTP before becoming eligible for parole.   Appellant contends that counsel instead “grossly misadvised” him that in the event his probation were revoked, he would be eligible for parole after serving only twenty percent of his sentence;  Appellant was apparently not told that this eligibility hinged on his completion of the SOTP. Accordingly, the question before us is whether this failure constitutes ineffective assistance of counsel.   For reasons that follow, we do not believe that it does.

As an initial matter, we note that a considerable portion of the parties' briefs is devoted to discussing whether Strickland analysis is even merited here given that parole eligibility is historically considered a “collateral” consequence of a guilty plea and, hence, a failure to advise in this regard does not amount to ineffective assistance of counsel.   See Edmonds v. Commonwealth, 189 S.W.3d 558, 567 (Ky.2006);  Turner v. Commonwealth, 647 S.W.2d 500, 500–01 (Ky.App.1982).   Appellant argues that a valid ineffective-assistance-of-counsel claim exists in light of the United States Supreme Court's decision in Padilla v. Kentucky, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), wherein the United States Supreme Court reversed a decision of the Supreme Court of Kentucky holding that deportation was a collateral consequence outside the scope of the guarantee of the Sixth Amendment right to counsel and, therefore, trial counsel's failure to advise the defendant about such an issue entitled the defendant to no relief under Strickland.   See generally Commonwealth v. Padilla, 253 S.W.3d 482 (Ky.2008), rev'd and remanded sub nom.  Padilla v. Kentucky, supra.   Instead, the United States Supreme Court held that Strickland analysis applied in that instance because of the seriousness of deportation as a consequence of a criminal plea and because the attorney incorrectly advised his client that pleading guilty would not subject him to deportation.   See generally Padilla v. Kentucky, supra.

The Commonwealth argues that Padilla is limited in applicability to deportation consequences, while Appellant contends that Padilla should be read more broadly as rejecting the direct-or-collateral-consequence distinction in analyzing an ineffective-assistance-of-counsel claim.   Ultimately, we need not address this dispute because even if this issue has merit, Appellant cannot satisfy the Strickland requirements. Double

Even if trial counsel failed to advise Appellant that he would be required to complete the SOTP to be eligible for parole, the trial court explicitly advised Appellant that he would be required to complete the SOTP as part of his plea.   In addition, Appellant acknowledged that he had read and understood the plea agreement after going over it with his attorney, and the agreement itself includes both Appellant's signature and the requirement that he complete the SOTP. This requirement was reiterated during final sentencing.   Thus, the record shows that Appellant was made fully aware that he must complete the SOTP.

Moreover, the record reflects that trial counsel was able to negotiate a very favorable plea for Appellant in light of the potential sentence he was facing.   Because of this fact, Appellant cannot satisfy the “prejudice” prong of Sparks, supra, which – even assuming that deficient performance can be established – requires a defendant to further prove “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, 721 S.W.2d at 728.   The United States Supreme Court has further elaborated that in order “to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.”  Padilla, 130 S.Ct. at 1485.

Under the circumstances presented herein, rejection of the Commonwealth's plea offer would not have been rational.   Had Appellant insisted on going to trial, he was facing two counts of first-degree sodomy – a potential Class A felony Double – the sentence for which would have been enhanced upon conviction in the event that he was found to be a second-degree persistent felony offender.   Thus, Appellant was facing a potential life sentence with no chance of parole for twenty years,Double a fact reflected in the plea agreement.   He would also have been classified as a “violent offender” with its attendant effect on parole eligibility. Double

By agreeing to plead guilty, however, Appellant received only five years of supervised probation.   Consequently, it is difficult to believe that Appellant would have insisted on proceeding to trial if he had been told by his attorney that he would have to complete the SOTP in order to be eligible for parole.   Frankly, under the circumstances it would have been wholly irrational to do so.   Appellant admitted during his plea colloquy that the evidence against him could result in a guilty verdict at trial.   Indeed, multiple witnesses implicated him in the subject incident.   Thus, the likelihood of a conviction was high.   We further note that parole eligibility is not the same as parole warranty.   Appellant was never guaranteed parole even if he had completed the SOTP. It beggars belief that Appellant would have risked the far harsher sentence that could have resulted from a trial merely because of a requirement that he complete the SOTP in order to be eligible for parole, especially since he was placed on supervised probation as a result of the plea.

Ultimately, Appellant fails to provide any reasons that would support a rational basis for rejecting the plea he was offered.   He contends only that completion of the SOTP, which requires an inmate to accept responsibility for his offenses, would have flown in the face of the rationale behind his Alford plea, which does not require a defendant to actually inculpate himself or to admit guilt.   Thus, the argument goes, it is reasonable to believe that he would have refused to plead guilty had he known that completion of the SOTP was required in order for him to be eligible for parole.   However, this argument rings hollow – particularly given that Appellant was advised by the trial judge during his plea colloquy that he would have to complete the SOTP yet chose to proceed with his guilty plea anyway.   Under these circumstances, we see no reason to believe “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, 721 S.W.2d at 728.   Therefore, Appellant's argument that he was denied the effective assistance of counsel because his attorney failed to advise him that he must complete the SOTP before being eligible for parole must fail.

Appellant next argues that his attorney failed to adequately investigate his case, but this contention is refuted by the record.  “Under Strickland, defense counsel has an affirmative duty to make reasonable investigation for mitigating evidence or to make a reasonable decision that particular investigation is not necessary.”  Hodge v. Commonwealth, 68 S.W.3d 338, 344 (Ky.2001).  “The reasonableness of counsel's investigation depends on the circumstances of the case.”  Id. “In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.”  Strickland, 466 U.S. at 691, 104 S.Ct. at 2066.   However, “[a] reasonable investigation is not an investigation that the best criminal defense lawyer in the world, blessed not only with unlimited time and resources, but also with the benefit of hindsight, would conduct.   The investigation must be reasonable under all the circumstances.”  Haight, 41 S.W.3d at 446 (Ky.2001) (internal citation omitted);  see also Parrish v. Commonwealth, 272 S.W.3d 161, 169 (Ky.2008).

Appellant argues that his attorney “conducted no investigation into the facts and circumstances surrounding the case.”   He specifically points to the fact that his attorney did not interview the victim even though the victim told medical personnel that he had been attacked by two African–Americans.   Appellant is not African–American.

However, in open court Appellant acknowledged that he had told everything he knew about the case to his attorney and his attorney indicated that he had been provided with and had reviewed discovery from the Commonwealth.   This discovery included statements made by multiple eyewitnesses implicating Appellant in the assault.   Moreover, Appellant's argument fails to acknowledge that while the victim specifically identified two African–Americans as the persons who had assaulted him, he also told medical personnel that other individuals were involved.   We further note that while Appellant argues that “investigation and speaking to witnesses was of extreme importance to developing a defense,” he fails to specify how such additional investigation would have benefitted his case.   A vague allegation that counsel failed to investigate, without offering specific facts as to what such an investigation would have revealed, is insufficient to support an RCr 11.42 motion.   See Sanders v. Commonwealth, 89 S.W.3d, 380, 390 (Ky.2002), overruled on other grounds by Leonard, supra ;  Hodge, 116 S.W.3d at 468.

In addition, we are again compelled to focus on the fact that Appellant's counsel was able to negotiate a favorable, even lenient, plea bargain in this case even though multiple witnesses implicated Appellant in the subject incident.   Appellant was evidently aware of the evidence against him as he acknowledged during the plea colloquy that he believed there was enough evidence that a jury might find him guilty should he proceed to trial.  “[I]t is entirely rational to plead guilty to a judge in the hope of a[sic] receiving a more lenient sentence than from a jury.   Indeed, it is not an uncommon trial strategy to avoid facing a jury in such circumstances.”  Johnson v. Commonwealth, 103 S.W.3d 687, 695 (Ky.2003).   Consequently, without this Court being advised as to what additional – and exculpatory – information additional investigation would have revealed, we simply do not believe that Appellant would have rejected the plea bargain negotiated by his counsel.   Indeed, this suggestion strains credulity.   Thus, we must reject Appellant's claim of ineffective assistance of counsel in this regard.

In light of the foregoing, any claim of cumulative error must also be rejected.   Furthermore, because a review of the record satisfies us that Appellant's allegations are clearly without merit and resolvable by the record as it stands, he is not entitled to relief pursuant to RCr 11.42 and the trial court did not err in refusing to hold an evidentiary hearing.


For the foregoing reasons, the decision of the Warren Circuit Court is affirmed.