MONTGOMERY (JOSEPH LEE) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: DECEMBER 10, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001573-MR
JOSEPH LEE MONTGOMERY
v.
APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE KEN M. HOWARD, JUDGE
ACTION NOS. 06-CR-00477 AND 06-CR-00478
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON, MOORE, AND VANMETER, JUDGES.
MOORE, JUDGE: Joseph Lee Montgomery appeals the order of the Hardin
Circuit Court denying his RCr1 11.42 motion to vacate, set aside, or correct the
circuit court’s judgment. After a careful review of the record, we affirm because
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Kentucky Rule of Criminal Procedure.
Montgomery has failed to show that he received the ineffective assistance of trial
counsel.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Montgomery was indicted in Hardin Circuit Court case number 06-
CR-00478 of second-degree burglary, fourth-degree assault, and being a firstdegree persistent felony offender (PFO-1st). He was also indicted in Hardin
Circuit Court case number 06-CR-00477 of first-degree possession of a controlled
substance, second-degree criminal trespass, possession of drug paraphernalia, and
PFO-1st.
Montgomery signed a motion to enter a guilty plea that pertained to
both cases. Regarding punishment, his motion stated as follows:
I understand that if I plead “GUILTY,” the Court may impose
any punishment within the range provided by law and that
although it may consider the Commonwealth’s
recommendation, the Court may reject it. The legal penalty
ranges are set forth on the attached “Commonwealth’s Offer on
a Plea of Guilty (AOC-491.1)” which I have reviewed and
signed.
(TR, 06-CR-00477, at 32).
The Commonwealth’s Offer on a Plea of Guilty recommended
sentences for each charge and specified that its recommendations for certain
sentences were enhanced due to PFO-1st charges.
A plea colloquy was held, and Montgomery entered a guilty plea in
accordance with his Motion to Enter a Guilty Plea and the Commonwealth’s Offer
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on a Plea of Guilty. The court entered judgments and orders imposing sentences in
both cases. In case number 06-CR-00478, the judgment stated that Montgomery
was guilty of second-degree burglary (PFO-1st) and fourth-degree assault. He was
sentenced in that case as follows:
Ten (10) years, to serve, on the charge of Second-Degree
Burglary (PFO 1st) and Twelve (12) months, to serve, on the
charge of Fourth-Degree Assault, all under the custody of the
Department of Corrections, all to run concurrently, one with the
other, for a total of Ten (10) years, to serve, and concurrently
with case 06-CR-00477, but consecutively to any other
sentence the Defendant may have or receive from any other
court proceeding, in this jurisdiction or any other, with the
Defendant to forfeit any and all seized property and/or assets,
and with credit for time served in this matter, that being Onehundred sixty-seven (167) days, as of December 5, 2006.
(Emphasis removed).
In case number 06-CR-00477, the court’s judgment and order
imposing sentence were subsequently amended to correct a clerical error. The
amended judgment and order imposing sentence stated that Montgomery was
guilty of first-degree possession of a controlled substance (PFO-1st); seconddegree criminal trespass and possession of drug paraphernalia. He was sentenced
in that case as follows:
Ten (10) years, to serve, on the charge of First-Degree
Possession of a Controlled Substance (PFO 1st); Ninety (90)
days, to serve, on the charge of Second-Degree Criminal
Trespass and Twelve (12) months, to serve, on the charge of
Possession of Drug Paraphernalia, all under the custody of the
Department of Corrections, all to run concurrently, one with the
other, for a total of Ten (10) years, to serve, and concurrently
with case 06-CR-00478, but consecutively to any other
sentence the Defendant may have or receive from any other
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court proceeding, in this jurisdiction or any other, with the
Defendant to forfeit any and all seized property and/or assets,
and with the Defendant having no credit for time served in this
matter, as of December 5, 2006.
(Emphasis removed).
Montgomery subsequently moved to vacate, set aside, or correct the
court’s judgment pursuant to RCr 11.42. In his motion, he contended, inter alia,
that he had received the ineffective assistance of trial counsel because counsel had
failed to fully explain the plea agreement and had misled Montgomery regarding
the offenses to which he was pleading guilty.
An evidentiary hearing was held concerning Montgomery’s RCr
11.42 motion, in which both Montgomery and his trial counsel testified.
Thereafter, the circuit court denied Montgomery’s RCr 11.42 motion, finding that
Montgomery had previously been convicted twice of felony offenses and that he
was, therefore, knowledgeable about “criminal court procedure.” The court also
found that
[a]ll written documentation (the Commonwealth’s Plea Offer
dated October 10, 2006 and the Commonwealth’s Offer on a
Plea of Guilty dated December 5, 2006) were all signed by
[Montgomery] along with trial counsel clearly indicating that
the charges in this case included a First-Degree Persistent
Felony Offender status with no proposed amendment and that
the total sentence to serve in both cases was ten years.
The circuit court noted that
[n]o documents in the Court file or any documents produced at
the Evidentiary Hearing in this matter contain any reference to
a PFO Second status. [Montgomery’s] testimony that he
believed he signed such a document while at the Hardin County
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Detention Center prior to the entry of his plea in these cases is
not credible.
The court’s order stated that during the plea colloquy, Montgomery had been asked
if “any promises or representations had been made to him other than serving ten
years to which [Montgomery] responded ‘no.’” Further, Montgomery’s trial
counsel had approximately ten years of experience in criminal law in Kentucky
and trial counsel testified that he had reviewed with Montgomery “the nature of the
charges in both cases, the maximum and minimum penalties for each of the
charges and parole eligibility.”
Trial counsel also testified during the evidentiary hearing that at the
time of Montgomery’s guilty plea, counsel
was aware that under Kentucky Law an individual charged with
the offenses such as [Montgomery] with a PFO 1st
enhancement would have a parole eligibility of “ten years flat”
or a minimum of ten years to serve. [Trial counsel] further
testified that this would have been the advice that he gave to
[Montgomery] concerning his parole eligibility in the case.
The circuit court noted that trial counsel also
testified that his file in this case reflected that he discussed with
[Montgomery] enrollment in the Substance Abuse Program
(SAP). [Trial counsel] could not recall specifically if the SAP
discussion and request for referral by the Trial Court was at the
request of [Montgomery] in order to “change his life” or the
request of [Montgomery’s] girlfriend. Either way, [trial
counsel] testified that he advised [Montgomery] that SAP
completion could be helpful to him in achieving credit toward
his parole eligibility.
The court found that Montgomery
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testified that he was advised by [trial counsel] that if he took a
ten year to serve sentence that he would be eligible for parole in
two years and that completion of SAP would “let me go home.”
[Montgomery’s] testimony is inconsistent and contrary to all of
the documentation which contains [his] signature and the guilty
plea colloquy in this case and thus the Court does not find
[Montgomery’s] statements credible.
Therefore, the circuit court concluded that Montgomery’s ineffective assistance of
trial counsel claim lacked merit and denied his RCr 11.42 motion.
Montgomery now appeals, contending that the circuit court erred in
denying his motion because he received the ineffective assistance of trial counsel
when counsel failed to correctly advise Montgomery of the charges and
consequences of his guilty plea.
II.
STANDARD OF REVIEW
In a motion brought under RCr 11.42, “[t]he movant has the burden of
establishing convincingly that he or she was deprived of some substantial right
which would justify the extraordinary relief provided by [a] post-conviction
proceeding. . . . A reviewing court must always defer to the determination of facts
and witness credibility made by the circuit judge.” Simmons v. Commonwealth,
191 S.W.3d 557, 561 (Ky. 2006), overruled on other grounds by Leonard v.
Commonwealth, 279 S.W.3d 151, 159 (Ky. 2009). An RCr 11.42 motion is
“limited to issues that were not and could not be raised on direct appeal.” Id.
III.
ANALYSIS
Montgomery alleges that the circuit court erred in denying his RCr
11.42 motion because he received the ineffective assistance of trial counsel when
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counsel failed to correctly advise Montgomery of the charges and consequences of
his guilty plea. Specifically, Montgomery contends that trial counsel told him he
was pleading guilty to PFO-2nd, rather than PFO-1st, and that counsel advised
Montgomery that he would be eligible for parole after serving only twenty percent
of his sentence.
A showing that counsel’s assistance was ineffective in
enabling a defendant to intelligently weigh his legal
alternatives in deciding to plead guilty has two
components: (1) that counsel made errors so serious that
counsel’s performance fell outside the wide range of
professionally competent assistance; and (2) that the
deficient performance so seriously affected the outcome
of the plea process that, but for the errors of counsel,
there is a reasonable probability that the defendant would
not have pleaded guilty, but would have insisted on going
to trial.
Bronk v. Commonwealth, 58 S.W.3d 482, 486-87 (Ky. 2001).
As for Montgomery’s claim that counsel told him he was pleading
guilty to PFO-2nd, rather than PFO-1st, the trial court found that all of the
documentation in the case record referred to PFO-1st. Upon review of the record,
we agree that all of the written documentation, including the Commonwealth’s
Offer on a Plea of Guilty, upon which Montgomery’s Motion to Enter a Guilty
Plea was based, mentions only PFO-1st. Additionally, upon review of the plea
colloquy, it is evident that Montgomery was aware that he was pleading guilty to
PFO-1st because the court reviewed all of the charges against Montgomery, and
Montgomery acknowledged that he was pleading guilty to them, including PFO-
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1st. There was no mention of a PFO-2nd charge during the plea colloquy.
Therefore, the circuit court did not err in this finding.
Regarding Montgomery’s assertion that trial counsel told him he
would be eligible for parole after completing only twenty percent of his sentence if
he completed SAP training, it appears from Montgomery’s appellate brief that this
allegedly mistaken advice stemmed from the advice where counsel allegedly
informed Montgomery that he was pleading to PFO-2nd, rather than PFO-1st.
Montgomery’s appellate brief alleges that counsel “misrepresented the charges he
was pleading to and misadvised him as to the sentence he would be serving when
he was advised by [counsel] that he was pleading to second-degree PFO and with
parole eligibility after only serving two (2) years of his ten-year sentence.” Thus,
it appears that Montgomery’s alleged belief that he would be eligible for parole in
two years was based on his alleged belief that he was pleading guilty to PFO-2nd,
which was a claim the trial court found not credible.
What the trial court did find credible, however, was that counsel
“correctly advised [Montgomery] that he would be parole eligible only after
serving ‘ten years flat.’” We cannot second-guess a trial court’s credibility
determination. Therefore, we cannot say that the trial court erred in this finding.
Thus, Montgomery failed to prove that his counsel gave him incorrect
advice. Consequently, because Montgomery failed to establish that his trial
counsel performed deficiently, his claim that he received the ineffective assistance
of trial counsel likewise fails.
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Finally, we pause to note that although Montgomery asks us to
address issues concerning whether “an attorney’s mistaken advice on a collateral
matter can constitute deficient performance under Strickland [v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052, 1064, 80 L.Ed.2d 674 (1984)]” and whether “the
ruling in Padilla v. Commonwealth[, 253 S.W.3d 482 (Ky. 2008)] should not be
extended to apply to all collateral consequences,” we decline to address these
issues, as to do so would merely be dicta.
Accordingly, the order of the Hardin Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Margaret A. Ivie
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky
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