BARNEY A. GLASS APPEALS v. COMMONWEALTH OF KENTUCKY
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RENDERED: June 9, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
NO.
1998-CA-003169-MR
AND
1999-CA-000513-MR
BARNEY A. GLASS
v.
APPELLANT
APPEALS FROM MARSHALL CIRCUIT COURT
HONORABLE DENNIS R. FOUST, JUDGE
ACTION NO. 97-CR-00029
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: BARBER, COMBS, and McANULTY, Judges.
COMBS, JUDGE:
Barney Glass (Glass) appeals the judgment of the
Marshall Circuit Court denying his RCr 11.42 motion for relief
from a conviction of trafficking in marijuana over five pounds
and being a second-degree persistent felony offender (PFO II).
He also appeals the denial of his CR 59.05 motion to alter, amend
or vacate that judgment.
(Appeal No. 1998-CA-003169-MR).
Glass’s second appeal is from the Marshall Circuit Court’s order
of February 4, 1999, denying his petition for pre-release
probation and the subsequent order denying his CR 59.05 motion to
alter, amend, or vacate.
(Appeal No. 1999-CA-000513-MR) The two
appeals have been consolidated.
Having carefully reviewed the
record and applicable law, we vacate and remand.
On March 21, 1997, Glass was indicted for the offenses
of trafficking in marijuana over five pounds1 and of being a
first-degree persistent felony offender (PFO I).
The
Commonwealth recites that it based the PFO I charge on two prior
felony convictions: (1) a January 5, 1993, federal court
conviction in Duluth, Minnesota, for conspiracy to deal in
counterfeit obligations; and (2) a September 3, 1987, federal
court conviction in Terre Haute, Indiana, for conspiracy and
dealing in counterfeit obligation.
According to the
Commonwealth, Glass received a sentence of eight (8) years on
each conviction.
Glass pleaded not guilty, and a trial was set for
November 24, 1997.
On that date, prior to the impaneling of the
jury, Glass accepted a "blind" plea agreement with the
Commonwealth in which he agreed to plead guilty to the charge of
trafficking in marijuana over five pounds and to the amended
charge of being a second-degree persistent felony offender (PFO
II).
The plea arrangement called for the maximum term of 20
years incarceration.
For reasons not relevant to these appeals,
Glass was not formally sentenced until June 15, 1998.
On November 10, 1998, Glass moved for RCr 11.42 relief,
alleging ineffective assistance of counsel and challenging the
enhancement of his sentence under KRS 532.080(5).
1
By order dated
Glass was in possession of 75 pounds of individually
packaged marijuana in violation of KRS 218A.421(4).
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November 19, 1998, the court denied that motion, finding that the
statutory enhancement provision had been properly applied and
that Glass’s claim of ineffective assistance of counsel was
without merit.
The court also denied appellant’s motion for an
evidentiary hearing and appointment of counsel.
Appellant moved to alter, amend or vacate the order of
November 19, 1998, pursuant to CR 59.05.
The court ordered Glass
to appear and held a hearing on the motion on December 11, 1998;
it denied the motion.
However, the court found Glass in contempt
of court as a result of the content of his 59.05 petition, in
which he had alleged, inter alia:
d. It appears from this Court’s order that
the Court is an advocate for the prosecution
as the Court has denied defendant’s motion
without a response from the Commonwealth’s
Attorney refuting or opposing the claims, as
well as request for relief, as asserted in
defendant’s RCr 11.42 motion. This Court is
clearly bias [sic] as well as prejudice [sic]
against criminal defendants. This Court
should sua sponte recuse itself from
defendant’s case and allow a judge who is
impartial towards [sic] criminal defendants
[sic] make a ruling regarding defendant’s RCr
11.42 motion.
It appears that the court had ordered him to appear at the CR
59.05 hearing in order to charge him with contempt.
The court
imposed a sentence of six months for the contempt charge — a
sentence which it subsequently suspended.
Appeal No. 1998-CA-
003169-MR followed.
However, just two days prior to that ruling, Glass
petitioned for pre-release probation on December 9, 1998.
Following a review of the pre-release assessment, the court
entered a judgment denying the motion on February 4, 1999.
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Glass
filed a motion for CR 59.05 relief from that judgment, which was
denied by order dated February 18, 1999.
Glass then filed Appeal
No. 1999-CA-000513-MR, which has been consolidated with the
earlier appeal.
In his first appeal, Glass raises seven alleged claims
of error.
However, our decision here rests upon only one of
those seven allegations, and our discussion accordingly will be
focused upon and limited to that dispositive argument.
Specifically, Glass contends that his counsel was ineffective for
his failure to investigate fully and to explore count two (2) of
the indictment in which he was charged with being a first-degree
persistent felony offender.
“The burden of proof [is] upon the appellant to show
that he was not adequately represented by appointed counsel.”
Jordan v. Commonwealth, Ky., 445 S.W.2d 878, 879 (1969).
In
order to establish that counsel’s assistance was so ineffective
as to rise to the level of prejudice requiring reversal, the
appellant needs to satisfy a two-part test: (1) that counsel’s
representation was ineffective as evaluated by an objective
standard of reasonableness and (2) that "there is a reasonable
probability that, but for counsel’s unprofessional errors, the
results of the proceeding would have been different.”
Hill v.
Lockhart, 474 U.S. 52, 57, 106 S. Ct. 366, 88 L. Ed.2d 203 (1985)
(quoting Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104
S. Ct. 2052, 80 L. Ed.2d 674 (1984)).
The Commonwealth pursued the PFO I charge based on the
premise that Glass had been convicted of two (2) prior felonies
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in United States District Court.
however, reveals a critical error.
Our review of the record,
In 1987, Glass was convicted
once in federal court for the offenses of conspiracy and dealing
in counterfeit currency; he received two (2) four-year sentences
of incarceration (to be served consecutively) for a total term of
eight years.
Glass was sent to a prison camp in Terre Haute,
Indiana, where he remained until paroled on May, 4, 1990.
Thereafter, Glass’s parole was revoked; he was transported to the
federal prison camp in Duluth, Minnesota, to serve out the
remainder of his sentence.
1994.
He was released on probation in March
The record is devoid of a "second felony" conviction in
Duluth in 1993 as alleged by the Commonwealth.
This state of the record substantiates the fact that
Glass was erroneously charged with PFO I status as he had only
one (1) prior felony conviction.
532.080(4).
KRS 532.080(1); See KRS
The maximum enhancement penalty provision applicable
to Glass should have been that provided by KRS 532.080(2) — the
PFO II statute.
Our review thus is narrowed to a weighing of the risks
involved in proceeding to trial as contrasted with the benefits
to be derived from entering into a plea agreement.
We focus with
particularity on the conduct of counsel in communicating to the
defendant the risks/benefits assessment in a competent manner.
Kentucky case law consistently holds that where a plea
of guilty may result in a lighter sentence than might otherwise
be imposed should the defendant proceed to trial, the
recommendation of counsel that a defendant accept the plea
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bargain is proper.
Commonwealth v. Campbell, Ky., 415 S.W.2d
614, 616 (1967) (citations omitted).
See also Wiley v.
Commonwealth, Ky. App., 575 S.W.2d 166, 168 (1978) holding:
Neither plea bargaining nor sentence
negotiation should be discouraged as long as
they are conducted in such manner that the
rights and interests of all concerned are
properly protected and carefully scrutinized
by the trial court.
In ascertaining whether Glass is entitled to an
evidentiary hearing, “[o]ur review is confined 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.”
(1967).
Lewis v. Commonwealth, Ky., 411 S.W.2d 321, 322
Therefore, we have reviewed the record most carefully as
to the sentence imposed upon Glass by virtue of his plea
agreement since his claim rests upon his contention that counsel
was most deficient with respect to negotiating that plea
agreement.
We have found no objective evidence in the record which
would refute Glass’s claim of ineffective assistance.
On the
contrary, it amply supports the presumption that Glass would have
more wisely opted to take his chances with a jury as opposed to
voluntarily accepting the maximum term of incarceration
permissible under the law; i.e., a sentence of twenty years.
In
reality, there simply was no effective plea bargain as Glass
received no benefit of the alleged bargain and was not properly
counseled as to his legitimate options.
His PFO I status was
erroneously charged as the second felony conviction upon which it
was premised simply never occurred.
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Thus, his bargaining
position was conditioned upon a non-existent foundation -effectively vitiating the ability to bargain knowingly,
intelligently, or voluntarily.
Error has been compounded upon
error in this case, and Glass has clearly met his burden that he
received ineffective assistance of counsel.
The second appeal (Appeal No. 1999-CA-000513-MR) is
rendered moot as a result of this holding.
We need not,
therefore, discuss the arguments raised in the second appeal.
The order of the Marshall Circuit Court denying
appellant’s RCr 11.42 motion and motion for an evidentiary
hearing is vacated, and this case is remanded for entry of
judgment granting a new trial.
ALL CONCUR.
BRIEFS FOR APPELLANT PRO SE:
BRIEFS FOR APPELLEE:
Barney A. Glass
LaGrange, KY
A.B. Chandler III
Attorney General of Kentucky
Michael G. Wilson
Assistant Attorney General
Frankfort, KY
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