BASS (BRASTIN) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: DECEMBER 11, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-002378-MR
BRASTIN BASS
v.
APPELLANT
APPEAL FROM SIMPSON CIRCUIT COURT
HONORABLE JANET CROCKER, JUDGE
ACTION NO. 04-CR-00173
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE: ACREE AND CLAYTON, JUDGES; KNOPF,1 SENIOR JUDGE.
CLAYTON, JUDGE: This action comes on appeal before this Court after the
denial of Appellant, Brastin Bass’s, motion to vacate his judgment pursuant to
Kentucky Rules of Criminal Procedure (RCr) 11.42. Bass contends that the trial
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Senior Judge William L. Knopf sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
court erred in denying him an evidentiary hearing on the matter. Based upon the
following, we affirm the decision of the trial court.
FACTUAL BACKGROUND
Bass was indicted for trafficking in a controlled substance, first degree
(TICS 1), second subsequent offense; promoting contraband, first degree;
possession of drug paraphernalia; and persistent felony offender (PFO 1), first
degree on October 25, 2004, in Simpson County, Kentucky. On April 25, 2006,
Bass entered a guilty plea in Simpson Circuit Court pursuant to North Carolina v.
Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), for TICS and PFO 1.
He was sentenced to ten (10) years’ imprisonment for his crimes.
As a result of the plea agreement, the Commonwealth dismissed the
charge of promoting contraband, amended the TICS 1 charge to a first offense,
recommended ten (10) years on the TICS 1 charge and twelve (12) months on the
drug paraphernalia charge. The trial court refused to sentence Bass until a new
presentencing report (PSI) was received from the Department of Probation and
Parole. Specifically, the trial judge requested a clarification of Bass’s criminal
history upon which the PFO 1 charge was based.
Bass brought an RCr 11.42 motion arguing that his counsel was
ineffective in convincing him to plead guilty to the PFO charge. Specifically, Bass
contended that the indictment did not set forth the prior felonies which were being
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used as the basis of the PFO charge. The trial court denied Bass’s motion without
an evidentiary hearing. Bass now appeals contending that the trial court erred in
not granting him an evidentiary hearing.
STANDARD OF REVIEW
We review the trial court's denial of an RCr 11.42 motion for an abuse
of discretion. “[An RCr 11.42] motion is limited to issues that were not and could
not be raised on direct appeal.” Sanborn v. Com., 975 S.W.2d 905, 908-09 (Ky.
1998) (overruled on other grounds).
In order to prevail on an ineffective assistance of counsel claim, a
movant must show that his counsel’s performance was deficient and that but for
the deficiency, the outcome would have been different. Strickland v. Washington,
466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Courts must also
examine counsel’s conduct in light of professional norms based on a standard of
reasonableness. Fraser v. Com., 59 S.W.3d 448, 452 (Ky. 2001).
Pursuant to the holding in Strickland, a “defendant must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466
U.S. at 694. With this standard in mind, we will examine the trial court’s decision.
DISCUSSION
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Bass first asserts that the trial court erred in denying his motion for an
evidentiary hearing on the allegations set forth in his RCr 11.42 motion. There is
no requirement in RCr 11.42 that an evidentiary hearing be held each time a
motion is made under the statute. The rule provides that:
(5) Affirmative allegations contained in the answer shall
be treated as controverted or avoided of record. If the
answer raises a material issue of fact that cannot be
determined on the face of the record the court shall grant
a prompt hearing . . . .
Thus, we must examine Bass’s allegations of error and determine
whether, as he suggests, the trial court erred in denying his RCr 11.42 motion
without an evidentiary hearing.
Bass contends that his counsel was ineffective in counseling him to
plead guilty to the PFO 1 charge. The Commonwealth counters that his counsel
could not have been ineffective because Bass’s sentencing was statutorily predetermined and he met the statutory requirements for the sentence he received.
Bass, however, argues that his indictment should have set forth the specific
convictions upon which the Commonwealth was relying when charging him with
PFO 1.
The record is clear that Bass did not immediately enter a guilty plea.
While an offer was made by the Commonwealth in August of 2005, it was not until
February 22, 2006, that Bass signed the plea agreement. This plea was accepted by
the trial court as an Alford Plea and the trial judge delayed the sentencing of Bass
until a new PSI could be completed by the Department of Probation and Parole.
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On April 24, 2006, the trial judge imposed the sentence as agreed to in
the plea agreement after reviewing the details of the new PSI. Thus, Bass was
aware of the convictions upon which his PFO 1 charge was based and the trial
judge was very conscientious in making sure the charge was based upon legitimate
convictions. The record is clear regarding the actions of Bass, his counsel and the
trial judge, thus, the trial court acted appropriately in refusing to grant an
evidentiary hearing. Bass’s allegations of error were clearly refuted by the record.
Bass also argues that his counsel was ineffective in convincing him to
plead guilty to the PFO 1 charge. As set forth above, however, Bass’s charges
were amended and his sentence was reduced based upon the plea agreement he
entered into with the Commonwealth. The convictions set forth in the PFO 1
charge were legitimate and the trial judge made sure of the legitimacy of those
convictions. There is nothing in the record, nor does Bass raise anything, which
would indicate his counsel was anything but diligent. Thus, we will affirm the
decision of the trial court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Brastin Bass, pro se
Sandy Hook, Kentucky
Jack Conway
Attorney General of Kentucky
James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky
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