J. W. TURNER v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: April 30, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1997-CA-003236-MR
J. W. TURNER
APPELLANT
APPEAL FROM GRAVES CIRCUIT COURT
HONORABLE JOHN T. DAUGHADAY, JUDGE
INDICTMENT NO. 93-CR-033
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** ** ** **
BEFORE:
BUCKINGHAM, EMBERTON and HUDDLESTON, Judges.
HUDDLESTON, Judge.
J. W. Turner appeals from an order denying his
Ky. R. Crim. Proc. (RCr) 11.42 motion to vacate a 15-year sentence
imposed following his plea of guilty to six counts of incest.
In
his motion, Turner claimed that his counsel provided ineffective
assistance
when
she
mistakenly
informed
him
that
if
he
was
convicted by a jury of all charges pending against him he faced a
possible 60-year sentence.
This misinformation, Turner says, led
him to plead guilty when would not otherwise have done so.
Turner
insists on appeal that the circuit court erred when it failed to
conduct an evidentiary hearing to consider whether he received
ineffective assistance of counsel before ruling on his motion.
On April 6, 1993, Turner was charged in an indictment
with six counts of incest, in violation of Ky. Rev. Stat. (KRS)
530.020.
The Commonwealth offered to recommend a maximum ten-year
sentence in exchange for a guilty plea, but revoked its offer when
Turner failed to enter a guilty plea at a pre-trial hearing.
On
November 1, 1993, Turner pleaded guilty, pursuant to North Carolina
v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to six
counts of incest. On December 6, 1993, the circuit court sentenced
Turner to imprisonment for a term of 20 years.
On May 5, 1997, Turner filed a RCr 11.42 motion seeking
vacation
of
his
sentence
or,
in
performance of the plea agreement.
the
alternative,
specific
Turner argued that his counsel
was ineffective because she mistakenly informed him that he faced
a maximum sentence of 60 years.
Turner contended that he would not
have pleaded guilty had counsel properly informed him that the
maximum possible sentence was 20 years.
On September 29, 1997, the circuit court conducted an
evidentiary hearing and determined that Turner had entered a plea
without any recommendation as to sentence from the Commonwealth.
The court also found that "at the time [Turner] was sentenced, the
Court mistakenly advised him that he faced a maximum sentence on
all six felony Counts of sixty years."
On October 28, 1997, the
court vacated Turner's 20-year sentence.
On November 3, 1997, Turner moved for further findings
regarding his claim that his counsel had rendered ineffective
assistance leading him to plead guilty when he would not otherwise
2
have done so.
On December 2, 1997, the circuit court denied
Turner's request and determined that his claim of ineffective
assistance of counsel and failure to make a knowing, intelligent
and
voluntary
evidence.
On
plea
of
guilty
December
3,
was
1997,
not
the
supported
court
sentencing Turner to 15 years' imprisonment.
by
entered
credible
an
order
This appeal follows
the circuit court's denial of Turner's motion for an evidentiary
hearing
to
consider
his
claim
that
he
received
ineffective
assistance of counsel and his claim that the court should have made
specific findings of fact on this issue.
When a trial court denies a motion for an evidentiary
hearing on the merits of allegations raised in a RCr 11.42 motion,
our review is limited to whether the motion "on its face states
grounds that are not conclusively refuted by the record and which,
if true, would invalidate the conviction."
Ky., 411 S.W.2d 321, 322 (1967).
Lewis v. Commonwealth,
If the movant's allegations are
refuted on the face of the record as a whole, no evidentiary
hearing is required.
Hopewell v. Commonwealth, Ky. App., 687
S.W.2d 153, 154 (1985).
In Sparks v. Commonwealth, Ky. App., 721 S.W.2d 726, 727
(1986), this Court observed that:
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
3
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.1
Following an evidentiary hearing, the circuit court found
that at the time of the sentence it had mistakenly advised
Turner that he faced a maximum sentence on all six felony counts of
60 years rather than a maximum sentence of but 20 years.2
Turner
has
motion
also
attached
as
an
exhibit
to
his
RCr
11.42
correspondence from his attorney which he contends shows that his
counsel mistakenly informed him that if he was convicted by a jury
on all counts, he could face a possible 60-year sentence.
KRS
532.110(1)(c)
limits
the
aggregate
consecutive
sentences a court may impose:
The aggregate of consecutive indeterminate terms 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.
1
Citing Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 370,
88 L.Ed.2d 203 (1985). Cf., Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); McMann v. Richardson,
397 U.S. 759, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970).
2
The court based its decision that the maximum sentence is
20 years on Ky. Rev. Stat. (KRS) 532.110(1)(c) and 532.080(6)(b).
See also Dawson v. Commonwealth, Ky. App., 756 S.W.2d 935 (1988),
and Sparks v. Commonwealth, Ky. App., 721 S.W.2d 726 (1987).
4
Thus, the circuit court correctly determined that the maximum
sentence that it could impose was 20 years, not 60 years.
Turner insists that had he not been misinformed by his
counsel and by the court that he was subject to a maximum sentence
of 60 years he would not have pleaded guilty, but, instead, would
have insisted on going to trial.
Because his assertion raises a
factual issue that cannot be resolved simply by reference to the
transcript of the hearing at which he pleaded guilty and was
sentenced, an evidentiary hearing is required.
Accordingly, the order denying Turner's RCr 11.42 motion
is vacated and this case is remanded to Graves Circuit Court with
directions to conduct an evidentiary hearing to consider whether
Turner received ineffective assistance of counsel and whether, as
a result, he pleaded guilty to six counts of incest when he would
not otherwise have done so.
Turner shall be permitted to testify
at such hearing and may call witnesses on his behalf.
The court
shall make specific findings of fact regarding this issue.
ALL CONCUR.
BRIEF FOR APPELLANT:
Mark Wettle
Appellate Public Advocate
Louisville, Kentucky
BRIEF FOR APPELLEE:
A. B. Chandler III
5
Attorney General of Kentucky
Dana M. Todd
Assistant Attorney General
Frankfort, Kentucky
6
7
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
