S. PETER PLYS v. COMMONWEALTH OF KENTUCKY
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RENDERED: February 12, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-002455-MR
S. PETER PLYS
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE EDWIN A. SCHROERING, JR., JUDGE
ACTION NO. 96-CR-001034
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * * * * * * *
BEFORE:
BUCKINGHAM, DYCHE, AND GARDNER, JUDGES.
GARDNER, JUDGE.
S. Peter Plys (Plys), appeals an order of the
Jefferson Circuit Court entered on September 11, 1997, denying
his motion to vacate, set aside or correct judgment brought
pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42,
without an evidentiary hearing on the motion.
We affirm.
On May 7, 1996, Plys was indicted for first degree
burglary, first degree rape, and first degree sodomy.
On the day
of his scheduled trial, appellant accepted the Commonwealth’s
offer on a plea of guilty and filed a motion to enter a guilty
plea.
Pursuant to the plea agreement, the appellant admitted
guilt to each of the indicted charges in exchange for a
recommended sentence of fifteen years on each charge, to run
concurrently for a total of fifteen years to serve.
The trial
court subsequently accepted the plea agreement and sentenced Plys
in accordance with its terms.
Following an unsuccessful attempt
to gain shock probation, on August 25, 1997, the appellant filed
the present motion to vacate his sentence pursuant to RCr 11.42.
On September 10, 1997, the trial court denied the motion.
This
appeal followed.
RCr 11.42 allows individuals in custody under sentence
to raise a collateral attack to the judgment entered against
them.
RCr 11.42(2) requires the movant to "state specifically
the grounds on which the sentence is being challenged and the
facts on which the movant relies in support of such grounds."
It
is well-established that an allegation of ineffective assistance
of counsel does not state grounds for relief under RCr 11.42
unless the petition presents sufficient facts to show that the
representation of counsel was inadequate.
See Thomas v.
Commonwealth, Ky., 459 S.W.2d 72 (1970); Mullins v. Commonwealth,
Ky., 454 S.W.2d 689, 691 (1970).
In order to establish ineffective assistance of
counsel, a person must satisfy a two-part test showing that
counsel's performance was deficient and that the deficiency
resulted in actual prejudice affecting the outcome.
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).
The movant bears the burden of overcoming a strong
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presumption that counsel's assistance was constitutionally
sufficient and outside the wide range of professionally competent
assistance.
Strickland v. Washington, 466 U.S. at 689-90, 104 S.
Ct. at 2065-66; Wilson v. Commonwealth, Ky., 836 S.W.2d 872, 878
(1992), cert. denied, 507 U.S. 1034, 113 S. Ct. 1857, 123 L. Ed.
2d 479 (1993).
Counsel's performance is based on an objective
standard of reasonableness.
Strickland v. Washington, 466 U.S.
at 688, 104 S. Ct. at 2064.
Prejudice is defined as proof that
there is a reasonable probability that, but for counsel's
unprofessional errors, the results would have been different.
Id., 466 U.S. at 694, 104 S. Ct. at 2068; Commonwealth v. Gilpin,
Ky., 777 S.W.2d 603, 605 (1989).
A reasonable probability is a
probability sufficient to undermine confidence in the outcome.
Strickland v. Washington, 466 U.S. at 694, 104 S. Ct. at 2068.
Appellant’s first contention is that his “employer had
critical exculpatory evidence as to [appellant’s] innocence.”
However, Plys does not identify this witness or what the alleged
“exculpatory evidence” is.
Failing to produce a witness for the
defendant is not error absent an allegation that the testimony of
the witness would have compelled acquittal.
Robbins v.
Commonwealth, Ky. App., 719 S.W.2d 742, 743 (1986).
Broad
general allegations, such as this, are insufficient to vacate a
judgment.
(1971).
Adkins v. Commonwealth, Ky., 471 S.W.2d 721, 722
The contention, as stated, fails to meet either the
deficient performance or the prejudice prong of the Strickland
test.
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Plys’ second contention is that his trial counsel told
him that he “had no opportunity to ‘win’ at trial and that he had
to enter a plea of guilt (sic),” and told him “to admit the
allegations or face sixty years incarceration.”
If trial
counsel’s assessment of the case was that the appellant had
little chance of winning at trial, and he told the appellant as
much, this does not constitute deficient performance.
The advice
by a lawyer for a client to plead guilty is not an indication of
any degree of ineffective assistance.
Beecham v. Commonwealth,
Ky., 657 S.W.2d 234, 236-237 (1983).
Similarly, trial counsel’s
admonition to “admit . . . or face sixty years” does not
constitute deficient performance.
Class B felonies.
Plys was charged with three
The maximum imprisonment authorized for a
Class B felony is twenty years, and it is possible that the
sentences would have been run consecutively.
Hence, the
appellant “faced” sixty years, in the sense that he “risked” a
sixty year sentence if convicted of all charges, received the
maximum sentence, and the sentences were run consecutively.
Appellant’s next contention relates to trial counsel’s
failure to call, at the sentencing hearing, a Dr. Wagner, who
helped developed an alternative sentencing plan, or any character
witnesses.
However, Plys was sentenced in accordance with his
plea agreement, so we discern no prejudice from any failure to
call these witnesses.
Further, a capable witness was called to
present the alternative sentencing plan to the court, so
additional testimony by Dr. Wagner is of questionable
significance.
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Appellant next contends that his trial counsel told
him, in essence, that if he pled guilty he would only serve six
months before being “probated.”
However, in his motion to plead
guilty, appellant stated, “[o]ther than [the Commonwealth’s offer
on a plea of guilty], no one, including my attorney has promised
me any other benefit in return for my guilty plea[.]”
Moreover,
in the course of his guilty plea, the following colloquy
occurred:
Trial Court: Now have any threats been made
to you or any promises or assurances been
made to you by anybody that if you plead
guilty that this court’s gonna go easy on you
or will probate the sentence or will
otherwise give any special treatment.
Anything like that?
Plys:
No your Honor.
Hence the record directly contradicts the appellant’s allegation
that he was assured that he would be “probated”, after serving
six months.
Lastly, appellant alleges the trial court erred by
denying his RCr 11.42 motion without conducting an evidentiary
hearing.
Where the movant's allegations are refuted on the face
of the record as a whole, no evidentiary hearing is required and
movant is not entitled to relief.
Sparks v. Commonwealth, Ky.
App., 721 S.W.2d 726, 727 (1986).
An evidentiary hearing on an
RCr 11.42 motion is not required if the record refutes movant's
factual allegations or if movant's unrefuted allegations do not
establish a right to relief.
S.W.2d 573 (1990).
Skaggs v. Commonwealth, Ky., 803
Here, appellant’s allegations are refuted
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from the face of the record.
Therefore it was proper for the
trial court to render its order without an evidentiary hearing.
Having found no error in the order of the trial court,
we affirm.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Fred R. Radolovich
Louisville, KY
A. B. Chandler III
Attorney General
Vickie L. Wise
Assistant Attorney General
Frankfort, KY
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