JEROME TRICE v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: September 10, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002221-MR
JEROME TRICE
v.
APPELLANT
APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE CHARLES W. BOTELER, JR., JUDGE
ACTION NOS. 95-CR-001 & 95-CR-129
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
KNOPF, MILLER, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Appellant, Jerome Trice, appeals from the
Hopkins Circuit Court's denial of his RCr 11.42 motion to vacate,
set aside, or correct judgment.
After reviewing the record and
applicable law, we affirm.
On January 10, 1995, the Hopkins County Grand Jury
indicted appellant on one count of murder for shooting and
killing a pregnant woman, Christy Mayes.
At a party on
December 31, 1994, appellant fired a gun during an altercation
with other individuals.
The room was crowded, and appellant's
bullet struck Mayes, an innocent bystander, who died a few hours
later.
Mayes's child was born alive by Caesarean, but died on
May 31, 1995, as a result of complications from injuries caused
by the shooting.
On July 28, 1995, appellant was indicted by the
Hopkins County Grand Jury on a second count of murder for the
death of the child.
Appellant himself was shot during the
altercation, suffering serious injuries which have permanently
left him a paraplegic.
On January 16, 1996, appellant entered into a plea
agreement with the Commonwealth, pleading guilty to the amended
charges of two counts of second-degree manslaughter for which the
Commonwealth recommended 10 years on each count, to run
consecutively for a total of 20 years.
On February 28, 1996,
appellant was sentenced in accordance with the plea agreement.
On May 2, 1997, appellant filed a motion pursuant to KRS 532.110
to have the two sentences run concurrently.
On May 6, 1997, the
Hopkins Circuit Court denied the motion.
On July 11, 1997, appellant filed an RCr 11.42 motion
in Hopkins Circuit Court alleging ineffective assistance of
counsel and cruel and unusual punishment.
An evidentiary hearing
was held on appellant's motion on February 12, 1998.
On
August 24, 1998, the court entered an order denying the motion,
from which this appeal followed.
Appellant raises two issues on appeal.
First, he
contends that his guilty plea was invalid because of ineffective
assistance of counsel.
Second, he argues that the trial court
abused its discretion when it overruled his RCr 11.42 motion,
thereby, due to his medical condition, permitting a sentence and
-2-
conditions to exist which constitute cruel and unusual
punishment.
Where an appellant challenges a guilty plea based on
ineffective assistance of counsel, he must show both that counsel
made serious errors outside the wide range of professionally
competent assistance and 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 pled guilty but would have insisted on
going to trial.
Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366,
88 L. Ed. 2d 203 (1985); Sparks v. Commonwealth, Ky. App., 721
S.W.2d 726 (1986).
The burden is on the movant to overcome a
strong presumption that counsel's assistance was constitutionally
sufficient.
Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984); 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).
Appellant first asserts that defense counsel, Rob Embry
(Embry), was ineffective because he failed to adequately prepare
for trial; therefore, appellant chose to plead guilty rather than
risk going to trial with an unprepared counsel.
In support of
his argument, appellant states that counsel only met with him
twice and did not engage in adequate case preparation.
Appellant
does not articulate with any specificity how he was prejudiced,
nor how additional preparation might have assisted in his
defense.
Furthermore, appellant received an evidentiary hearing
on his RCr 11.42 motion, of which the trial court stated in its
-3-
August 24, 1998 order that "no evidence was presented at the
hearing showing that counsel was unprepared."
A review of the record refutes appellant's claim that
he was not satisfied with the services of his counsel.
The
record contains the motion to enter guilty plea and arraignment
order (guilty plea), both signed by appellant, which state that
he was represented by competent counsel.
Furthermore, when
appellant appeared in court with counsel to enter his guilty plea
on January 16, 1996, he indicated that he was satisfied with
counsel’s representation.
Therefore, this argument is without
merit.
Appellant next argues that counsel was ineffective for
incorrectly advising him that he could be released in as early as
six months on "medical parole" or shock probation.
However, at
the evidentiary hearing, Embry and Danny Dees, an investigator
for the Department of Public Advocacy, testified that appellant
was not told that he would receive "medical parole."
Rather, he
was told that his medical condition would be looked upon
favorably when he came up for parole, and although they believed
that there was such a thing as "medical parole," they told
appellant they did not know what the criteria for receiving it
was.
Appellant himself testified that counsel did not promise
shock probation or "medical parole," just that appellant could be
eligible for such release options.
Other witnesses at the
hearing stated that although counsel had given appellant hope
that an early release might occur, he did not guarantee it.
-4-
Appellant is not eligible for shock probation under KRS
533.060 which precludes a person who has been convicted of a
class A, B, or C felony involving the use of a firearm from
receiving probation, shock probation, or conditional discharge.
Therefore, counsel was incorrect in advising appellant that he
might receive shock probation.
A plea is not rendered
involuntary by the pleader's ignorance of collateral
consequences, such as its bearing on parole or probation
eligibility.
Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709,
23 L. Ed. 2d 274 (1969);
S.W.2d 500 (1982).
Turner v. Commonwealth, Ky. App., 647
Furthermore, "[e]ffective assistance of
counsel does not guarantee error-free representation.”
Ramsey v.
Commonwealth, Ky., 399 S.W.2d 473, 475 (1966), cert. denied, 35
U.S. 865, 87 S. Ct. 126, 17 L. Ed. 2d 93 (1966).
We do not
believe that counsel's error regarding shock probation rises to
the level of ineffective assistance.
By pleading guilty,
appellant accepted a 20-year sentence, fully aware that probation
was not a certainty.
The record contains the "Commonwealth's
Offer on a Plea of Guilty", signed by appellant, which clearly
states that the Commonwealth was making no recommendation on
probation.
Furthermore, we do not believe that appellant was
prejudiced by counsel's error.
Even if appellant had known he
was not eligible for shock probation, faced with two-life
sentences to a crime with multiple eyewitnesses, he is not likely
to have insisted upon a trial.
Appellant next argues that counsel incorrectly advised
him that, under the guilty plea, he would be eligible for parole
-5-
in four years.
Appellant states that he has been told by
Corrections that he is classified as a violent offender and,
therefore, will not be eligible for parole until serving 50% of
his sentence, ten years.
Appellant pled guilty to two counts of
second-degree manslaughter, a class C felony.
Therefore, he is
not classified as a violent offender under KRS 439.3401.
Appellant received a sentence of 20 years.
Counsel correctly
advised appellant that he will be eligible for parole after
serving 20% of his sentence, four years.
501 KAR 1:030E.
The test for determining the validity of a guilty plea
is whether the plea represents a voluntary and intelligent choice
among the alternative courses of action open to the defendant.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed.
2d 162 (1970).
The record indicates that appellant’s plea was
knowing, intelligent, and voluntary as required by Boykin;
v. Commonwealth, Ky. App., 829 S.W.2d 432 (1992).
Kiser
Appellant’s
plea represented an intelligent choice among the alternative
courses of action.
Appellant was charged with two counts of
murder, for which he could have received two life sentences had
he chosen to go to trial.
Appellant was aware that there were
multiple eyewitnesses to his crime.
Due to the efforts of
counsel, appellant received a total sentence of twenty years and
will be eligible for parole in four.
As a result, we adjudge
that trial counsel's performance did not fall outside of the wide
range of professionally competent assistance.
Appellant's final argument is that his sentence should
be vacated as it constitutes cruel and unusual punishment due to
-6-
his serious medical condition.
Appellant is partially paralyzed
and alleges that he has suffered greatly as a result of not
receiving proper medical treatment in prison.
Our review of the
record supports appellant's claim that he has suffered from
substantial medical problems during his incarceration.
is entitled to proper medical treatment.
Appellant
However, an RCr 11.42
motion is not the proper vehicle for such a claim.
The United States Supreme Court has held that
deliberate indifference to a prisoner's serious illness or injury
states a cause of action under the Federal Civil Rights Act, 42
U.S.C.A. §1983.
Estelle v. Gamble, 429 U.S. 97,
50 L. Ed. 2d 251 (1976).
97 S. Ct. 285,
Both state and federal prisoners have a
constitutionally guaranteed right to a certain degree of medical
treatment while incarcerated.
Gamble, 429 U.S. at 105, 97 S. Ct.
at 291.
While not every showing of inadequate medical
treatment will establish the existence of a
constitutional violation, the Eighth
Amendment does protect a prisoner from
actions amounting to a "deliberate
indifference" to his medical needs. When an
inmate can establish that prison officials
have shown such indifference to his medical
needs that it offends "evolving standards of
decency" a valid constitutional claim has
been made.
Byrd v. Wilson, 701 F.2d 592, 594-95 (6th Cir. 1983); Gamble, 429
U.S. at 104-5, 97 S. Ct. at 291-92.
The proper forum for
appellant is to bring a separate §1983 claim, not to raise the
issue in the appeal of the conviction to this Court.
For the aforementioned reasons, the judgment of the
Hopkins Circuit Court is affirmed.
-7-
ALL CONCUR.
BRIEF FOR APPELLEE:
BRIEF FOR APPELLEE:
Kim Brooks
Covington, Kentucky
A. B. Chandler, III
Attorney General
Michael G. Wilson
Assistant Attorney General
Frankfort, Kentucky
-8-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
