CHRISTIAN HARMON v. COMMONWEALTH OF KENTUCKY
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RENDERED:
November 2, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002533-MR
CHRISTIAN HARMON
v.
APPELLANT
APPEAL FROM ROWAN CIRCUIT COURT
HONORABLE WILLIAM B. MAINS, JUDGE
ACTION NO. 98-CR-00078
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, GUIDUGLI and McANULTY, JUDGES.
EMBERTON, JUDGE: Christian Harmon appeals from the denial of
Kentucky Rules of Criminal Procedure (RCr) 11.42 relief from a
judgment entered on his guilty plea to three counts of thirddegree rape involving a fifteen-year-old child.
He argues that
his counsel was ineffective in failing to properly advise him of
the length of time he would have to serve prior to being eligible
for parole and in failing to inform him that a three-year period
of “conditional discharge” would be added to the five-year term
he accepted in exchange for his plea.
We affirm.
In October 1998, Harmon, by his own admission in a
detailed statement, had sexual intercourse three times with a
fifteen-year-old child he had contacted over the Internet.
Harmon was arrested less than one hour after he committed the
crimes in a Days Inn Motel room from which the police collected
three used condoms and a birthday card indicating Harmon’s
awareness of the age of the victim.
On November 18, 1998, Harmon
entered a guilty plea to three counts of third-degree rape.
Consistent with the plea agreement, Harmon was ordered to serve
three concurrent five-year terms.
Subsequent motions for
probation and shock probation were denied.
On December 3, 1999,
the trial court entered an order indicating that a statutorily
mandated period of conditional probation had inadvertently been
omitted from the judgment.
Shortly thereafter, on December 18,
1999, Harmon filed a pro se RCr 11.42 motion alleging ineffective
assistance of counsel.
That motion was denied on April 25, 2000,
but on May 3, 2000, counsel for Harmon filed a motion to hold his
previous RCr 11.42 motion in abeyance pending supplementation by
counsel.
The trial court thereafter set aside his previous order
and allowed counsel to supplement Harmon’s pro se pleadings.
By
order dated October 3, 2000, the trial court denied the
supplemented RCr 11.42 motion without holding a requested
evidentiary hearing.
In this appeal, Harmon predicates his claim of
ineffective assistance of counsel on the theory that he received
material misinformation from his trial counsel during the course
of plea negotiations.
He asserts that if he had in fact received
correct information as to the timing of parole eligibility and
the period of conditional probation mandated by Kentucky Revised
-2-
Statutes (KRS) 532.043, he would have rejected the Commonwealth’s
offer and insisted on proceeding to trial.
Having reviewed
Harmon’s contention in light of the evidence of record, we find
no error in the trial court’s decision in this case.
Harmon’s complaint regarding parole eligibility centers
on the allegation that he was informed he would be eligible for
parole in one year but later found out that he could not complete
the required sex offender treatment program within that time
frame.
This court, in Centers v. Commonwealth,1 reiterated the
familiar standard of Strickland v. Washington,2 that in order to
prevail on a claim of ineffective assistance of counsel, a
defendant must show (1) that counsel’s performance fell outside
the range of professionally competent assistance; and (2) that
the deficient performance so prejudiced the process that there is
a reasonable probability that, but for counsel’s errors, the
defendant would not have pled guilty and the outcome would have
been different.
Harmon’s complaint does not satisfy the
Strickland criteria on either point.
In this case, Harmon was facing a potential sentence of
fifteen years for the crimes based upon a set of facts as to
which a jury was not likely to be sympathetic.
We find no
reasonable probability that but for the failure to advise him
that completion of the sex offender treatment program might
exceed the one-year time frame for initial parole eligibility,
Harmon would have insisted upon taking the chance that he might
1
Ky. App., 799 S.W.2d 51, 55 (1990).
2
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
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receive an additional ten years in addition to the five he
received pursuant to the plea.
Furthermore, the holding in
Turner v. Commonwealth,3 makes clear that a defendant need not be
informed of every possible consequence and aspect of his plea.
Thus, Harmon did not demonstrate either ineffective assistance or
resulting prejudice.
Nor can he demonstrate prejudice resulting from the
failure to be advised of the three-year period of conditional
discharge after completion of his sentence required by KRS
532.043.
As noted by the Commonwealth, KRS 532.043 would apply
to Harmon’s sentence regardless of whether he pled guilty or
opted to go to trial.
We are therefore convinced that even if he
had not been informed of the period of conditional discharge,
Harmon cannot demonstrate an error so egregious that it would
likely affect the outcome of his case.
The denial of Harmon’s RCr 11.42 motion is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Christopher F. Polk
Rob Eggert
Louisville, Kentucky
Albert B. Chandler III
Attorney General
N. Susan Roncarti
Assistant Attorney General
Frankfort, Kentucky
3
Ky. App., 647 S.W.2d 500 (1982).
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