RONALD LEE HEARD v. COMMONWEALTH OF KENTUCKY
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RENDERED:
February 18, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002611-MR
RONALD LEE HEARD
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE LAURANCE B. VANMETER, JUDGE
ACTION NO. 03-CR-00295-001
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; GUIDUGLI AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal from an order denying
appellant’s RCr 11.42 motion alleging ineffective assistance of
counsel for failure to investigate and discover that one of
appellant’s prior felony convictions (for persistent felony
offender purposes) was actually a misdemeanor for which
appellant had served out his sentence more than five years
before commission of the present offenses.
Because the record
refutes appellant’s allegation that the prior conviction was a
misdemeanor and because only one prior felony conviction needs
to be within five years of the present offense pursuant to KRS
532.080(3)(c)1, we affirm the denial of the RCr 11.42 motion
without a hearing.
On March 17, 2003, appellant, Ronald Heard, was
indicted for possession of a controlled substance in the first
degree, possession of marijuana, possession of drug
paraphernalia, and for being a persistent felony offender in the
first degree (“PFO I”).
According to the indictment, the
offenses were committed on January 25, 2003.
In support of the
PFO I charge, the indictment alleged that Heard had previously
been convicted of the felony offenses of burglary in the third
degree in 1982, possession of cocaine in 1992, and flagrant
nonsupport in 2001.
On May 2, 2003, Heard pled guilty to all of the
charged offenses in exchange for the Commonwealth’s
recommendation that he be sentenced to a total of ten years on
all the counts.
Heard was subsequently sentenced to one year on
the first-degree possession of controlled substance charge,
enhanced to ten years on the PFO I charge, and twelve months on
each of the misdemeanor charges to be served concurrently with
the ten-year sentence.
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On September 29, 2003, Heard filed a motion pursuant
to RCr 11.42 to vacate or set aside his conviction.
In this
motion, Heard alleged that his counsel on the guilty plea
rendered ineffective assistance of counsel when he failed to
discover that one of the prior felony convictions underlying the
PFO I charge, the 1992 conviction for possession of cocaine, was
actually a misdemeanor for which he had served out his sentence
in 1994.
Heard insisted that had his counsel discovered and
informed him of this fact, he would not have pled guilty to the
PFO I charge.
In the alternative, Heard contended that had his
counsel objected to the PFO I charge because the 1992 conviction
was a misdemeanor, the charge would have been dismissed
altogether.
The trial court denied the RCr 11.42 motion without
an evidentiary hearing, and this appeal followed.
To prevail on a claim of ineffective assistance of
counsel on a guilty plea, the defendant must show that his
counsel’s performance was deficient relative to current
professional standards and that but for the deficient
performance, the defendant would not have pled guilty and would
have insisted on going to trial.
Hill v. Lockhart, 474 U.S. 52,
106 S. Ct. 366, 88 L. Ed. 2d 203 (1985).
A hearing on an RCr
11.42 motion is not necessary if the record on its face refutes
the movant’s allegations.
Hopewell v. Commonwealth, 687 S.W.2d
154 (Ky. App.1985).
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As to Heard’s claim that one of the felony convictions
underlying his PFO I conviction was actually a misdemeanor,
Heard did not include any of the record of the prior conviction
in the record on appeal before us.
Nor did he even attach a
copy of the final judgment of conviction in that case to his RCr
11.42 motion.
There is simply nothing in the record before us
to support Heard’s claim except his unsubstantiated self-serving
allegation.
In fact, the record in the present case refutes
Heard’s allegation that the prior conviction at issue was for a
misdemeanor.
During the plea colloquy in the instant case, Heard
admits to having two prior felony convictions, one being in
1992.
Also, the indictment in the case at bar states that the
1992 conviction for possession of cocaine, which served as a
basis for the PFO I charge, was a felony.
Finally, in the
court’s opinion and order denying the RCr 11.42 motion, the
court takes judicial notice of the Fayette Circuit Court record
91-CR-050 in which Heard was convicted of the felony of
possession of cocaine.
Heard next argues that since he served out his
sentence on the 1992 conviction in 1994, it could not serve as
the basis for the PFO I charge pursuant to KRS 532.080(3)(c)1.
Thus, his counsel on the guilty plea was ineffective for
advising and allowing him to plead guilty to the PFO I charge.
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KRS 532.080(3)(c)1 provides that a PFO I offender must
have “[c]ompleted service of the sentence imposed on any of the
previous felony convictions within five (5) years prior to the
date of the commission of the felony for which he now stands
convicted.”
(emphasis added).
That subsection has been
interpreted so as to require only that completion of service of
sentence or discharge from probation or parole on any, not each,
of the prior convictions be within five years of the commission
of the current offense.
(Ky. App. 1980).
Howard v. Commonwealth, 608 S.W.2d 62
Since it was undisputed that completion of the
sentence on the 2001 conviction for flagrant nonsupport was
within five years of the current offense, it is immaterial when
Heard served out his sentence on the 1992 conviction.
Hence,
Heard’s counsel was not ineffective for advising and/or allowing
him to plead guilty to the PFO I charge.
For the reasons stated above, the order of the Fayette
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
Ronald Lee Heard, pro se
Beattyville, Kentucky
BRIEF FOR APPELLEE:
Gregory D. Stumbo
Attorney General of Kentucky
James Havey
Assistant Attorney General
Frankfort, Kentucky
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