NORMAN BRADLEY WILLIAMS v. COMMONWEALTH OF KENTUCKY
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RENDERED: DECEMBER 20, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-002737-MR
NORMAN BRADLEY WILLIAMS
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS J. KNOPF, JUDGE
ACTION NO. 00-CI-001722
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, HUDDLESTON AND JOHNSON, JUDGES.
GUIDUGLI, JUDGE.
Norman Bradley Williams appeals, pro se, from
an opinion and order of the Jefferson Circuit Court which denied
his RCr 11.42 motion.
Having thoroughly reviewed the record and
finding no error, we affirm1.
In that we believe Judge Thomas Knopf’s opinion and
order clearly and precisely sets forth the factual background and
thoroughly and properly addresses the legal principles involved,
we adopt the court’s opinion and order in full as follows:
1
Our review of this matter is somewhat limited in that the
record on appeal did not contain any information prior to
Wiliams’s RCr 11.42 motion. The record does not contain the
original indictments or any pre-trial motions or even the
judgment relating to his convictions. We did, however, review
the videotape recordings provided.
This matter comes before the Court on a
motion by Defendant/Movant, Norman Bradley
Williams, to alter, amend or vacate his
sentence pursuant to RCr 11.42.
BACKGROUND SUMMARY
On August 8, 2000, Williams was indicted
on the charges of Robbery I, Robbery II, and
five counts of Theft by Unlawful Taking
(“TBUT”)under $300 and being a Persistent
Felony Offender I (“PFO”). On March 13,
2001, a jury trial was held on the severed
charge of Robbery I, and Williams was found
guilty of said charge. During the
deliberation of the penalty phase, the
Commonwealth and Williams reached an
agreement whereby Williams would serve ten
years for Robbery I and withdraw his not
guilty plea to the remaining severed charges
under the indictment and enter a plea of
guilty to the following: Robbery II (five
years); four counts of TBUT under $300 (12
months per count); and one amended count of
TBUT over $300 (three years), enhanced to ten
years by PFO I status, to run consecutively
with the ten-year Robbery I sentence for a
total of twenty years to serve. In
accordance therewith, Williams was sentenced
by court order of March 22, 2001.
On May 14, 2001, Williams filed a motion
to alter, amend, or vacate his sentence
pursuant to RCr 11.42. He filed a
supplemental motion on October 11, 2001. The
Commonwealth has not filed any response.
OPINION
In his RCr 11.42 motion, Williams
alleges that his guilty plea was involuntary
based upon ineffective assistance of counsel.
Williams argues that it was improper to amend
one of the counts of TBUT under $300 (which
is a Class A misdemeanor) to TBUT over $300
(which is a Class D felony) and then enhance
the three-year sentence for the TBUT over
$300 to ten years due to the PFO I charge.
The PFO I charge was based on felony
convictions in Case Nos. 93-CR-0001 and 89CR-2356.
As stated in Centers v. Commonwealth,
Ky.App., 799 S.W.2d 51 (1990), a guilty plea
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is only valid when it is entered
intelligently and voluntarily. The validity
of a guilty plea must be determined from
considering the totality of the circumstances
surrounding the plea. Kotas v. Commonwealth,
Ky., 565 S.W.2d 445 (1978).
In Sparks v. Commonwealth, Ky.App., 721
S.W.2d 726 (1987), the court stated the
following:
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.
An attorney, acting in good faith and in
the exercise of reasonable judgment, may
recommend that a client plead guilty.
Hendrickson v. Commonwealth, Ky., 450 S.W.2d
234 (1970). In this case, Williams was
facing a sentence of up to twenty years on
his Robbery I jury conviction. Under the
plea, he received the minimum ten-year
sentence on this Class B Felony. Along with
this felony, Williams had another felony
charge pending, i.e., Robbery II, which was a
Class C Felony. Rather than enhance a Class
B or Class C felony, Williams pled guilty to
TBUT over $300, a Class D felony. This was
to Williams’ benefit as KRS 532.080(7)
provides that a person found to be a PFO I,
who is presently convicted of a Class A, B,
or C felony, is ineligible for parole until
serving a minimum ten-year sentence.
Consequently, Williams cannot show that there
was a reasonable probability that he would
not have taken the plea and insisted on a
trial.
-3-
From the totality of the circumstances
surrounding Williams’ guilty plea and
sentencing, the Court finds that the alleged
deficiencies of counsel did not affect the
plea so as to render it involuntary.
Therefore, the Court enters the
following Order:
ORDER
IT IS HEREBY ORDERED AND ADJUDGED that
the motion brought by Defendant/Movant,
Norman Bradley Williams, to alter, amend, or
vacate his sentence pursuant to RCr 11.42 is
DENIED.
This is a final and appealable judgment.
DATED this 28th day of November, 2001.
Also in the court record is a motion for clarification
of sentence filed by Williams on January 9, 2002.
In his motion,
he argues that since the PFO I conviction was attached to the
class “D” felony conviction for TBUT over $300, he is eligible
for parole consideration after service of 20% of his sentence
instead of 50% if it had attached to the Robbery I or Robbery II
conviction.
By this motion, Williams admits that he greatly
benefitted from the plea agreement which he argues in this appeal
resulted in great injustice to him.
Obviously one cannot be
greatly benefitted and at the same time suffer a great injustice
from the same plea agreement.
Having thoroughly reviewed this
matter, we believe the trial court properly addressed the
benefits Williams received based upon the recommended plea
agreement.
In that Williams received the same number of years of
imprisonment (20 years) that he would have received upon his
guilty pleas to Robbery I and Robbery II and a PFO I conviction
but greatly benefitted from the plea agreement which permitted
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the PFO I to attach to a class “D” felony conviction of TBUT over
$300, thus reducing his parole eligibility from 50% of time
served to 20%, we agree that Williams cannot show that
performance of his attorney was deficient or that he suffered
prejudice due to the alleged deficient representation.
See,
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984).
For the foregoing reasons, we affirm the opinion and
order entered by the Jefferson Circuit Court denying Williams’s
RCr 11.42 motion.
ALL CONCUR.
BRIEF FOR APPELLANT, PRO SE:
BRIEF FOR APPELLEE:
Norman Bradley Williams
Central City, KY
A. B. Chandler, III
Attorney General
William L. Daniel, III
Assistant Attorney General
Frankfort, KY
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