TURNER (ROBERT) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: MAY 28, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-001185-MR
ROBERT TURNER
v.
APPELLANT
ON REMAND FROM SUPREME COURT OF KENTUCKY
NO. 2007-SC-000633-DG
APPEAL FROM DAVIESS CIRCIUT COURT
HONORABLE HENRY M. GRIFFIN III, JUDGE
ACTION NOS. 03-CR-00370 AND 03-CR-00431
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
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BEFORE: DIXON, MOORE, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: This matter is before the Court of Appeals on remand from
the Kentucky Supreme Court by Opinion rendered August 27, 2009, in Appeal No.
2007-SC-000633-DG. The Supreme Court reversed the Court of Appeals’ Opinion
and Order dismissing the appeal as having been untimely filed. The Supreme
Court determined that the appeal was timely filed and remanded for consideration
upon the merits. Having been so directed, we shall forthwith determine the merits
of the case sub judice.
Turner pleaded guilty to various offenses, including first-degree
robbery. Under a plea agreement with the Commonwealth, he was eventually
sentenced to a total of sixteen-years’ imprisonment. Subsequently, Turner filed a
Kentucky Rules of Criminal Procedure (RCr) 11.42 motion to vacate sentence
based upon ineffective assistance of trial counsel. By order entered April 6, 2006,
the circuit court denied the RCr 11.42 motion without an evidentiary hearing.
Turner contends that he received ineffective assistance of trial counsel
and that the circuit court erred by denying his RCr 11.42 motion without an
evidentiary hearing. To prevail, Turner must demonstrate that trial counsel
rendered ineffective assistance and that except for counsel’s ineffective assistance,
there exist a reasonable probability that he would not have pleaded guilty but
would have insisted upon a jury trial. Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Gall v. Com., 702 S.W.2d 37 (Ky. 1985). To
be entitled to an evidentiary hearing, there must exist a material issue of fact that
cannot be conclusively resolved upon the face of the record. Fraser v. Com., 59
S.W.3d 448 (Ky. 2001).
Turner specifically argues that trial counsel was ineffective for grossly
misadvising him concerning parole eligibility. Turner states that trial counsel
erroneously informed him that he would be eligible for parole in four years. In
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actuality, Turner was only eligible for parole after serving 85 percent of his
sixteen-year sentence of imprisonment as a violent offender under Kentucky
Revised Statutes (KRS) 439.3401, which would be thirteen years and six months.
We are persuaded that gross misadvice concerning parole eligibility
may constitute ineffective assistance of trial counsel. See Sparks v. Sowders, 852
F. 2d 882 (6th Cir. 1988). Were appellant’s allegation true concerning trial
counsel’s misadvice as to parole eligibility, we think that trial counsel’s
performance was deficient and that Turner would not have viewed the plea offer so
favorably if the true facts were known to him. There is a wide discrepancy
between parole eligibility in four years versus thirteen years. Also, Turner’s
allegation concerning trial counsel’s gross misadvice upon parole eligibility is not
refuted upon the face of the record. See Fraser, 59 S.W.3d 448.
In sum, we hold that a trial counsel’s gross misadvice concerning
parole eligibility may constitute ineffective assistance of trial counsel. As Turner’s
allegation concerning trial counsel’s gross misadvice was not refuted upon the face
of the record, we vacate the circuit court’s order summarily denying Turner’s RCr
11.42 motion and remand for an evidentiary hearing. See Fraser, 59 S.W.3d 448.
For the foregoing reasons, the order of the Daviess Circuit Court is
vacated and this cause is remanded for proceedings consistent with this opinion.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Erin Hoffman Yang
Assistant Public Advocate
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Rickie L. Pearson
Assistant Attorney General
Frankfort, Kentucky
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