CHARLES MERTZ v. COMMONWEALTH OF KENTUCKY
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RENDERED:
October 17, 1997; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 97-CA-1034-MR
CHARLES MERTZ
APPELLANT
APPEAL FROM HENRY CIRCUIT COURT
HONORABLE DENNIS FRITZ, JUDGE
ACTION NO. 95-CR-003
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE:
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**
**
EMBERTON, HUDDLESTON, and MILLER, Judges.
MILLER, JUDGE.
Charles Mertz brings this appeal from an order of
the Henry Circuit Court denying his motion to vacate sentence
pursuant to Ky. R. Crim. P. (RCr) 11.42.
We affirm.
Appellant contends he received ineffectual trial counsel
when he was advised to accept and enter a plea of guilty providing
for a sentence in excess of that allowed under Kentucky sentencing
law.
In January 1995, appellant was indicted on six counts of
sodomy in the first degree (Ky. Rev. Stat. (KRS) 510.070) and two
counts of sexual abuse in the first degree (KRS 510.110).
not guilty in February 1995.
He pled
In July 1995, the Commonwealth
offered to amend the six sodomy counts to six counts of firstdegree sexual abuse in exchange for a plea of guilty.
As part of
the offer, the Commonwealth would recommend a total sentence of
fifteen years' imprisonment.
On the advice of counsel, appellant
accepted the Commonwealth's offer.
The court accepted the plea
agreement in September 1995 and entered judgment against appellant
on eight counts of first-degree sexual abuse.
sentenced to five years for each count.
Appellant was
Counts one through three
were to run consecutively, and counts four through eight were to
run concurrently for a total of fifteen years' service.
On January 21, 1997, appellant filed a motion pursuant to
RCr 11.42 to vacate his sentence.
On March 28, 1997, the trial
court entered findings and an order denying appellant's motion,
thus precipitating this appeal.
Appellant argues that he received ineffective assistance
of counsel because his trial counsel advised him to enter a guilty
plea agreement that provided for a total sentence exceeding that
allowed by KRS 532.110(1)(c).
The provision reads as follows:
(1) When multiple sentences of imprisonment
are imposed on a defendant for more than
one (1) crime, . . . the multiple sentences shall run concurrently or consecutively as the court shall determine at the
time of sentence, except that:
. . .
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(c) The aggregate of consecutive indeterminate terms[1] shall not exceed in maximum
length the longest extended term which
would be authorized by KRS 532.080 for the
highest class of crime for which any of
the sentences is imposed.
Because appellant's eight first-degree sexual abuse counts were
Class D felonies, he argues that his aggregated sentence of fifteen
years was impermissible under this provision since the counts could
have been enhanced only to the Class C level, which carries a
maximum term of ten years.
KRS 532.060(2).
We disagree with
appellant's interpretation of KRS 532.110.
Appellant correctly states that his convictions were
limited to Class D felonies. KRS 510.110. His statement, however,
that his sentence must be limited to the Class C felony maximum of
ten years is incorrect.
The purpose of KRS 532.110(1)(c) is to
place an upper limit on the maximum term of imprisonment that can
be imposed through consecutive indeterminate sentences equivalent
to the maximum term that could be imposed upon a persistent felony
offender under KRS 532.080.
See Commentary to KRS 532.110.
Here,
this maximum is found in KRS 532.080(6)(b):
If the offense for which he presently stands
convicted is a Class C or Class D felony, a
1
The trial court found that appellant's claim is erroneous
because he is relying primarily upon statutes relating to indeterminate sentences.
However, although appellant was sentenced to
three consecutive five-year terms, with five additional terms to
run concurrently with the other three, appellant's sentences are
indeterminate for purpose of the statutes at issue. Ky. Rev. Stat.
(KRS) 532.060 classifies a sentence for a felony as an indeterminate sentence. See Woods v. Commonwealth, Ky. App., 712 S.W.2d 363
(1986).
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persistent felony offender in the first degree
shall be sentenced to an indeterminate term of
imprisonment, the maximum of which shall not
be less than ten (10) years nor more than
twenty (20) years.
It is clear that twenty years is the maximum sentence authorized
for a Class D felony under KRS 532.080.
only fifteen years.
Appellant was sentenced to
In view of this, appellant's argument is
without merit. See Milner v. Commonwealth, Ky. App., 655 S.W.2d 31
(1983).
To prevail on his claim of ineffective assistance of
counsel guaranteed by the Sixth Amendment of the United States
Constitution and Section 11 of the Kentucky Constitution, appellant
must show:
. . . (1) that counsel made errors so serious
that counsel's performance fell outside the
wide range of professionally competent assistance as the counsel was not performing as
counsel guaranteed by the Sixth Amendment and
(2) that the deficient performance prejudiced
the defense by so seriously affecting the
process that there is a reasonable probability
that the defendant would not have pled guilty,
and the outcome would have been different.
Centers v. Commonwealth, Ky., 799 S.W.2d 51, 55 (1990), citing
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984), and Sparks v. Commonwealth, Ky. App., 721 S.w.2d 726
(1986).
In the case at bar, appellant's claim clearly fails the
first prong of the Strickland test.
Appellant did not receive
ineffective assistance of counsel.
The Commonwealth argues that the appeal of appellant's
RCr 11.42 motion was not timely filed.
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We need not consider this
issue since the Commonwealth has prevailed upon the merits.
See
West v. Commonwealth, Ky., 887 S.W.2d 338 (1994).
The fifteen-year total sentence was proper.
For the foregoing reasons, the order of the circuit court
is affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Charles Mertz, Pro Se
LaGrange, KY
A. B. Chandler III
Attorney General
Amy F. Howard
Assistant Attorney General
Frankfort, KY
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