HARGUS W. GABBARD v. COMMONWEALTH OF KENTUCKY

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RENDERED: February 5, 1999; 2:00 p.m. NOT TO BE PUBLISHED C ommonwealth O f K entucky C ourt O f A ppeals NO. 1997-CA-002484-MR HARGUS W. GABBARD APPELLANT APPEAL FROM LINCOLN CIRCUIT COURT HONORABLE DANIEL J. VENTERS, JUDGE ACTION NO. 1996-CR-000030 v. COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: EMBERTON, KNOPF, AND SCHRODER, JUDGES. KNOPF, JUDGE: Hargus Gabbard appeals from a September 8, 1997, order of Lincoln Circuit Court denying his RCr 11.42 motion for relief from a criminal conviction. Gabbard maintains that counsel’s erroneous guilty-plea advice led to an excessive sentence and that consequently he should be permitted to withdraw his plea. For the reasons that follow, we are persuaded that such relief is not available in this case. Accordingly, we affirm the order of Lincoln Circuit Court. In conjunction with his January 1997 guilty plea to the charge of escape in the second degree (KRS 520.030), Gabbard was sentenced to ten (10) years in prison. Gabbard was sentenced as a first-degree persistent felony offender (PFO), and he pled guilty in exchange for what was the shortest possible sentence in these circumstances for someone with that status. At the time of his plea and sentencing, however, one of Gabbard’s two (2) prior convictions was on appeal to our Supreme Court and thus was not final. That conviction, therefore, should not have been used in determining Gabbard’s status as a PFO, which otherwise could not have been deemed higher than second-degree. KRS 532.080; Melson v. Commonwealth, Ky., 772 S.W.2d 631 (1989). Had Gabbard been sentenced as a second-degree instead of a first-degree PFO, ten (10) years would have been the maximum sentence to which he was subject instead of the minimum. When Gabbard and his former counsel discovered this error, sometime around July 1997, they brought it to the trial court’s attention, and Gabbard moved to have his conviction vacated so that he might be afforded an opportunity to plead again. Before the trial court ruled on this motion, the Supreme Court upheld Gabbard’s second felony conviction. (1996-SC-883-MR, rendered 09-04-97). The trial court thereupon denied Gabbard’s motion, reasoning that the sentence had been within statutory limits when imposed, and, in light of the Supreme Court’s decision, could not now be reduced. In a subsequent order responding to Gabbard’s motion to reconsider, the trial court agreed to amend the record to reflect that Gabbard had been sentenced as a second rather than a firstdegree PFO, but otherwise reasserted its prior ruling. Gabbard has appealed from that ruling and insists that counsel’s misadvice with regard to his sentencing status was an error of -2- such magnitude as to entitle him to relief from his conviction. We disagree. Gabbard relies on Melson, supra, but as the Commonwealth points out, Melson both supports and defeats Gabbard’s claim. In that case, the appellants had been convicted of escape during the pendency of their appeals from prior convictions. The convictions under appeal were used during the guilt phase of the subsequent trial to the defendants’ disadvantage. Our Supreme Court ruled that this use of non-final convictions violated the truth-in-sentencing statute, KRS 532.055, and would similarly be inappropriate in PFO proceedings. The Court went on, however, to state that: the error of admitting these non-final convictions was harmless. The convictions have subsequently been affirmed and the time to file a Petition for Rehearing has elapsed. Thus, if the case were remanded for sentencing, the convictions would be final and admissible, making this an exercise in futility. Melson v. Commonwealth, Ky., 772 S.W.2d at 633. We agree with Gabbard that the error in this case was not harmless, for had he been correctly advised, it seems unlikely that he would have pled guilty in exchange for the maximum possible sentence. Nevertheless, we also agree with the trial court that Gabbard’s claim has been rendered moot by the subsequent affirmance of his second felony conviction. The situation has become what Gabbard believed it was at the time of his guilty plea. He could now properly be sentenced as a first- degree PFO to as much as twenty (20) years in prison. At most, a remand would allow him to reconsider the choice he made then. -3- He has suggested no reason to think that his choice now would be any different, and thus such a remand would be “an exercise in futility.” Because the Lincoln Circuit Court has thus afforded Gabbard all the relief that is available to him, we affirm that court’s modified order of September 8, 1997. ALL CONCUR. BRIEF FOR APPELLANT: BRIEF FOR APPELLEE: Mark Wettle Appellate Public Advocate Louisville, Kentucky A. B. Chandler III Attorney General J.T. Blaine Lewis Assistant Attorney General Frankfort, Kentucky -4-

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