JUAN L. SANDERS v. COMMONWEALTH OF KENTUCKY
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RENDERED:
October 19, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000873-MR
JUAN L. SANDERS
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS B. WINE, JUDGE
ACTION NO. 97-CR-001632
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, MILLER AND SCHRODER, JUDGES.
JOHNSON, JUDGE:
Juan L. Sanders has appealed from an order of
the Jefferson Circuit Court which denied his motion for postconviction relief pursuant to RCr1 11.42 and CR2 60.02.
Sanders
contends that he received ineffective assistance of counsel
during the penalty phase of the trial when his trial counsel
misinformed him of the parole eligibility consequences of his
1
Kentucky Rules of Criminal Procedure.
2
Kentucky Rules of Civil Procedure.
sentencing agreement with the Commonwealth.
Because we are
persuaded that Sanders would not have been prejudiced by the
alleged misinformation, we affirm.
On July 2, 1997, Sanders was indicted for one count of
murder3 and two counts of assault in the first degree.4
The
charges stemmed from the allegation that on June 13, 1997,
Sanders shot and killed James Atwan Chatman; shot and wounded
Anita Watts, Chatman’s mother; and shot and wounded Jonathan
Sanders, Sanders’ uncle.
The case was tried before a jury on May 5-8, 1998.
At
trial, Sanders conceded that he shot the deceased and the two
other victims; however, he claimed that he did so in self-defense
or in the defense of another.
Following the presentation of the
evidence, Sanders was convicted of one count of manslaughter in
the first degree,5 a Class B felony; one count of assault in the
second degree,6 a Class C felony; and one count of assault in the
fourth degree,7 a Class A misdemeanor.
Prior to the penalty
phase of the trial, the Commonwealth and Sanders reached an
agreement concerning a recommended sentence.
Pursuant to the
agreement, Sanders was sentenced to 12 years in prison on the
3
Kentucky Revised Statutes (KRS) 507.020.
4
KRS 508.010.
5
KRS 507.030.
6
KRS 508.020.
7
KRS 508.030.
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manslaughter conviction; five years on the conviction for assault
in the second degree, to run consecutively with the manslaughter
conviction; and 12 months on the conviction for assault in the
fourth degree, to run concurrent with the two felony sentences,
for a total prison sentence of 17 years.
In conjunction with the agreement, Sanders also waived
his right to appeal; nevertheless, on May 21, 1998, Sanders filed
a notice of appeal to this Court.
On August 24, 1998, because
Sanders had unequivocally waived his right to a direct appeal
under the sentencing agreement, this Court entered an order
dismissing the appeal.8
On June 25, 1999, Sanders filed a motion to vacate his
conviction and sentence pursuant to RCr 11.42 and CR 60.02.
A
hearing was held on December 20, 1999, where counsel for both
parties were provided the opportunity to present oral arguments.
Sanders waived his right to an evidentiary hearing, relying
instead on the transcript of the trial proceedings and the
proffered testimony of witnesses.
The Commonwealth did not
object to the proffered testimony, which corroborated Sanders’
allegation that trial counsel had misinformed him regarding his
minimum serve-out date before he would become eligible for parole
review.
On March 8, 2000, the trial court entered an order
denying Sanders’ motion for post-conviction relief.
followed.
8
1998-CA-1300-MR.
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This appeal
While various other issues were advanced in the postconviction motion before the trial court, the only issue raised
by Sanders on appeal is that he received ineffective assistance
of counsel during the penalty phase of the trial when his trial
counsel misinformed him of his parole eligibility status.
Specifically, Sanders alleges that trial counsel informed him
that pursuant to KRS 439.3401(3), as a violent offender convicted
of a Class B felony, i.e., manslaughter in the first degree, he
would not be eligible for parole until he had served at lease 85
percent of the sentence imposed.
However, since Sanders’ Class B
felony occurred prior to July 15, 1998, pursuant to KRS
439.3401(7), the current 85 percent minimum serve-out requirement
does not apply to Sanders’ manslaughter conviction.
Instead, the
previous version of the statute applies, and Sanders is eligible
for parole after serving 50 percent of his sentence on the Class
B felony.
In order to establish ineffective assistance of
counsel, a person must satisfy a two-part test showing that
counsel's performance was deficient and that the deficiency
resulted in actual prejudice affecting the outcome.9
Where an
appellant challenges a guilty plea based on ineffective
assistance of counsel, he must show both that counsel made
serious errors outside the wide range of professionally competent
9
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984); Gall v. Commonwealth, Ky., 702 S.W.2d 37
(1985), cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d
724 (1986).
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assistance,10 and 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 pled guilty, but would have insisted on going to
trial.11
The burden of proof is upon the appellant to
demonstrate that both prongs of Strickland have been met.12
The
simple fact that counsel advises or permits a defendant to plead
"guilty" does not constitute ineffective assistance of counsel.13
Assuming, arguendo, that trial counsel advised Sanders
that the 85 percent serve-out rule included in the current
version of KRS 439.3401(3) applied,14 then trial counsel rendered
ineffective assistance under the first prong of Strickland.15
In
fact, as noted above, the former version of the statute applied,
and Sanders was subject to the 50 percent serve-out rule.
10
McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441,
1449, 25 L.Ed.2d 763 (1970).
11
Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88
L.Ed.2d 203 (1985); Sparks v. Commonwealth, Ky.App., 721 S.W.2d
726, 727-28 (1986).
12
Osborne v. Commonwealth, Ky.App., 992 S.W.2d 860, 863
(1998).
13
Beecham v. Commonwealth, Ky., 657 S.W.2d 234, 237 (1983).
14
In its March 8, 2000, opinion and order denying postconviction relief, the trial court did not make an unequivocal
finding on this point. The opinion and order stated that
“counsel apparently misinformed the Movant that he would not be
eligible for parole for 17 years under the new 85% serve time
provision of KRS 439.3401” if he received the maximum 20-year
sentence for the manslaughter conviction [emphasis added].
15
Sparks v. Sowders, 852 F.2d 882 (6th Cir. 1988).
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Nevertheless, we are not persuaded that the alleged
misinformation would have resulted in prejudice under the second
prong of Strickland.
Sanders was subject to a sentence of ten to 20 years on
the Class B manslaughter conviction and five to ten years on the
Class C assault conviction.
The KRS 439.3401 serve-out rule
applies only to capital offenses, Class A felonies and Class B
felonies.
In this case, the rule would have applied only to the
Class B felony conviction for manslaughter in the first degree.
Pursuant to the plea agreement, Sanders received only a 12-year
sentence out of a possible 20-year sentence for this conviction.
Hence, if trial counsel had correctly informed Sanders of his
parole eligibility under KRS 439.3401(3), he would have informed
Sanders that under the agreement he would be eligible for parole
in six years.
Under jury sentencing, at best, Sanders could have
hoped to be sentenced to the ten-year minimum on the manslaughter
charge.
Thus, at best, he could have reduced his parole
eligibility by one year.
On the other hand, if Sanders had
chosen to have the jury sentence him, he risked receiving the
maximum manslaughter sentence of 20 years, which would have
required a ten-year serve-out before parole eligibility.
Sanders contends that his focus in accepting the
sentencing agreement was parole eligibility.
In consideration
that under jury sentencing Sanders could have, at best, improved
his parole eligibility position by one year, we are convinced
that if Sanders had been presented with the correct parole
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eligibility information by his trial counsel, there is not a
reasonable probability that he would have rejected the sentencing
agreement and, instead, pursued his right to be sentenced by the
jury.
In consideration of the fact that he killed one person and
wounded two others, Sanders obtained a very favorable sentence in
the final disposition of his case.
Even if he had been correctly
informed by trial counsel of the applicable parole eligibility
rules, it is unlikely that he would have chosen to risk a
possible 30-year sentence with a minimum serve-out of ten years.
Sanders has failed to identify any theory to support the notion
that the jury had a reason to be lenient in imposing his
sentence, or that it would have imposed a more favorable sentence
than that provided for in the sentencing agreement.
Sanders also asserts that he was prejudiced because as
part of his sentencing agreement he gave up his right to a direct
appeal; however, again, even if trial counsel had informed
Sanders of the correct parole eligibility rules, based upon the
favorable sentencing agreement, we are not persuaded that Sanders
would have forgone the favorable deal that he received in order
to pursue a direct appeal.
For the foregoing reasons, the judgment of the
Jefferson Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Juan L. Sanders, Pro Se
Central City, Kentucky
Albert B. Chandler, III
Attorney General
Samuel L. Floyd, Jr.
Assistant Attorney General
Frankfort, Kentucky
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