YUSUF A. ALIM v. COMMONWEALTH OF KENTUCKY
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RENDERED: April 3, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 96-CA-3249-MR
YUSUF A. ALIM
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ELLEN B. EWING, JUDGE
ACTION NO. 95-CR-1048
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE:
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BUCKINGHAM, KNOX, and MILLER, Judges.
MILLER, JUDGE:
Yusuf A. Alim brings this appeal from a November
21, 1996 order of the Jefferson Circuit Court.
We affirm.
On March 12, 1996, appellant pled guilty to two counts
of illegal possession of cocaine and one count of illegal possession of heroin.
He was sentenced to twelve years' imprisonment.
On July 5, 1996, appellant filed an Ky. R. Crim. P.
(RCr) 11.42 motion to vacate, set aside, or correct sentence.
Appellant contended that he received ineffective assistance of
counsel because trial counsel failed to tender an alternative
sentencing plan.
On November 21, 1996, the circuit court denied
appellant's motion without conducting an evidentiary hearing.
This appeal followed.
Appellant contends the circuit court committed reversible error by denying his RCr 11.42 motion without an evidentiary
hearing.
It is well established that when the allegations raised
in an RCr 11.42 motion are refuted upon the face of the record,
an evidentiary hearing is not required.
In the case sub judice,
appellant contends that trial counsel was ineffective because of
failure to proffer an alternative sentencing plan to the court.
In order to prevail, appellant must satisfy the two-prong test
set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984); accord, Gall v. Commonwealth, Ky.,
702 S.W.2d 37 (1985), cert. denied, 478 U.S. 1010, 106 S. Ct.
3311, 92 L. Ed. 2d 724 (1986).
First, he must demonstrate that
the performance of counsel was deficient, and, second, that the
deficiency resulted in actual prejudice. In essence, we believe
there exists no reasonable probability that the result of the
sentencing proceedings would have been different, that is appellant would have been granted probation.
In the judgment of conviction and sentence, the circuit
court specifically concluded as follows:
. . . [T]he Court is of the opinion that
probation or probation with an alternative
sentencing plan, should be denied for the
following reasons:
_XX__
A.
There is substantial risk that
defendant will commit another
crime during any period of proba-
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tion, probation with an alternative sentencing plan, or conditional discharge.
_XX__
B.
The defendant is in need of correctional treatment that can be
provided most effectively by the
defendant's commitment to a correctional institute.
_XX__
C.
Probation, probation with an
alternative sentencing plan, or
conditional discharge would unduly depreciate the seriousness
of the defendant's crime.
Upon the foregoing, it is clear that the court's decision to deny
appellant "probation or probation with an alternative sentencing
plan" was based upon the likelihood of appellant recidivism and
the need for institutional correctional treatment.
Moreover, the
court specifically found that probation with an alternative
sentencing plan would "unduly depreciate the seriousness of the .
. . [appellant's] crime."
We think the record plainly demon-
strates that trial counsel's alleged failure to proffer an
alternative sentencing plan did not result in actual prejudice to
appellant.
Hence, we cannot say that the circuit court committed
reversible error by denying appellant's RCr 11.42 motion without
an evidentiary hearing.
For the foregoing reasons, the order of the circuit
court is affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Irvin J. Halbleib
Louisville, KY
A. B. Chandler III
Attorney General
Elizabeth A. Myerscough
Ass't Attorney General
Frankfort, KY
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