MAJOR (CHRISTOPHER) VS. COMMONWEALTH OF KENTUCKY

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RENDERED: NOVEMBER 25, 2009; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2008-CA-001855-MR CHRISTOPHER MAJOR v. APPELLANT APPEAL FROM JESSAMINE CIRCUIT COURT HONORABLE C. HUNTER DAUGHERTY, JUDGE ACTION NO. 07-CR-00190 COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: CAPERTON, DIXON, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Christopher Major brings this pro se appeal from a September 19, 2008, order of the Jessamine Circuit Court denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion without an evidentiary hearing. We affirm. Appellant entered a guilty plea to driving under the influence (fourth or subsequent), operating a motor vehicle upon revoked license, receiving stolen property over $300, and with being a persistent felony offender in the first degree. He was sentenced to a total of fifteen-years’ imprisonment. Thereafter, appellant filed an RCr 11.42 motion alleging ineffective assistance of counsel. By a September 19, 2008, order, the circuit court denied appellant’s RCr 11.42 motion without an evidentiary hearing. This appeal follows. Appellant contends that the circuit court erroneously denied his RCr 11.42 motion without an evidentiary hearing. Appellant also contends that his trial counsel rendered ineffective assistance. To prevail, appellant must demonstrate that trial counsel was deficient and that except for counsel’s deficiency, there exist a reasonable probability that appellant would not have pleaded guilty but would have insisted upon a jury trial. See Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985); Sparks v. Com., 721 S.W.2d 726 (Ky. App. 1986). And, appellant is entitled to an evidentiary hearing if his allegations are not refuted upon the face of the record. Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001). Essentially, appellant argues that his trial counsel was ineffective for advising him to plead guilty to the charge of persistent felony offender in the first degree. Appellant claims that trial counsel failed to conduct a proper investigation of appellant’s prior criminal record and failed to correctly understand the persistent felony offender sentencing guidelines. Appellant believes that he was ineligible to -2- be sentenced as a persistent felony offender in the first degree and should have only been sentenced as a persistent felony offender in the second degree. The status of persistent felony offender in the first degree is codified in Kentucky Revised Statutes (KRS) 532.080(3)(c)(1) and reads as follows: (3) A persistent felony offender in the first degree is a person who is more than twenty-one (21) years of age and who stands convicted of a felony after having been convicted of two (2) or more felonies, or one (1) or more felony sex crimes against a minor as defined in KRS 17.500, and now stands convicted of any one (1) or more felonies. As used in this provision, a previous felony conviction is a conviction of a felony in this state or conviction of a crime in any other jurisdiction provided . . . . .... (c) That the offender: 1. Completed 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[.] Under KRS 532.080(3)(c)(1), a defendant is considered eligible for sentencing as a first-degree persistent felony offender if: (1) he is more than twenty-one years old, (2) has been convicted of two prior felonies or at least one felony sex crime against a minor, and (3) has completed service upon one of the prior felonies within five years of the instant offenses. Manning v. Com., 23 S.W.3d 610 (Ky. 2000). The record reveals that appellant committed the instant offenses in July 2007 and was over twenty-one years of age at that time. Additionally, the record indicates that appellant was previously convicted of at least two felonies. In -3- March 2007, appellant was convicted of the felony offense of receiving stolen property over $300, and in February 1997, appellant was convicted of the felony offense of robbery in the second degree. As appellant’s last felony conviction was in March 2007, it is clear that one of the prior felonies occurred within five years of the instant charged felony. As such, appellant plainly qualified for sentencing as a persistent felony offender in the first degree. Upon the whole, we conclude that appellant’s allegation that trial counsel rendered ineffective assistance was refuted upon the face of the record and that the circuit court properly denied appellant's RCr 11.42 motion without an evidentiary hearing. For the foregoing reasons, the order of the Jessamine Circuit Court is affirmed. ALL CONCUR. BRIEF FOR APPELLANT: BRIEF FOR APPELLEE: Christopher Major, Pro Se Pineville, Kentucky Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky -4-

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