JERRY FELKER v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED:
NOVEMBER 26, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2001-CA-002076-MR
JERRY FELKER
v.
APPELLANT
APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE CHARLES W. BOTELER, JR., JUDGE
ACTION NO. 97-CR-00215
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: DYCHE, JOHNSON AND PAISLEY, JUDGES.
JOHNSON, JUDGE:
Jerry Felker has appealed from an order of the
Hopkins Circuit Court entered on August 21, 2001, denying his
motion for post-conviction relief pursuant to RCr1 11.42.
Felker
contends that he received ineffective assistance of counsel when
he entered a plea of guilty to two charges of trafficking in
marijuana and one charge of possession of drug paraphernalia,
which resulted in a total prison sentence of ten years, probated
for five years.
1
Felker contends that trial counsel should have
Kentucky Rules of Criminal Procedure.
advised him to withdraw his guilty plea and, additionally, that
trial counsel should have investigated as a defense the
possibility that his son was the owner of the marijuana and the
firearms seized from Felker’s residence which resulted in his
indictment.
Having concluded that trial counsel’s
representation of Felker was not outside of the wide range of
professionally competent assistance, we affirm.
In July 1997 Felker was living in a mobile home with
his son, Steve Felker, on David Fitzsimmons Road in Dawson
Springs, Hopkins County, Kentucky.
On July 30, 1997, in a
controlled drug-buy, a confidential informant purchased onefourth ounce of marijuana from Steve Felker at the residence.
On July 31, 1997, the police executed a search warrant of the
mobile home.
Among other things, police confiscated 16 one-
fourth-ounce bags of marijuana and three firearms.
In August 1997 Felker was indicted on one count of
trafficking in less than eight ounces of marijuana, secondoffense;2 one count of possession of drug paraphernalia;3 and one
count of trafficking in less than eight ounces of marijuana,
second-offense, weapon-enhanced.4
2
Kentucky Revised Statutes (KRS) 218A.1421(2)(b).
3
KRS 218A.500.
4
KRS 218A.1421(2)(b) and KRS 218A.992(1)(a).
2
During the plea negotiations, it appears that the
Commonwealth initially offered to amend the weapon-enhanced,
second-offense trafficking to simple second-offense trafficking
and to recommend two-year sentences on the two trafficking
charges, to run concurrently, and twelve months on the
paraphernalia charge, to run concurrently, for a total of two
years to serve.
Felker sought a recommendation from the
Commonwealth that probation be granted; however, the
Commonwealth would not commit to a recommendation of probation
on a two-year sentence.
The Commonwealth then indicated to
Felker that if he would agree to a five-year sentence on the
trafficking charges, to run concurrently, it would recommend
probation.
Felker accepted this offer.
However, at the hearing on Felker’s guilty plea, the
trial court informed Felker that under the concurrent sentencing
agreement for the two five-year sentences with a total of five
years to serve, probation would not be granted.
The trial
court, however, informed Felker that if he accepted a five-year
sentence on each of the trafficking convictions, to run
consecutively, and 12 months on the paraphernalia conviction, to
run concurrently, for a total prison sentence of ten years,
probation would be granted.
Felker accepted this offer, and on
April 3, 1998, he was sentenced to a total prison sentence of
3
ten years and was placed on probation for a period of five
years.
On March 15, 1999, the Commonwealth moved to revoke
Felker’s probation because of his admission that he had violated
a condition of probation by using marijuana.
Following a
hearing, the trial court determined that Felker had violated the
terms of his probation by using marijuana, his probation was
revoked, and the original ten-year total sentence was imposed.
On December 11, 2000, Felker filed a motion to vacate
his sentence pursuant to RCr 11.42 and RCr 10.26.
In his
motion, Felker alleged that he had received ineffective
assistance when trial counsel advised him to accept the plea
agreement imposing a total sentence of ten years’ imprisonment;
that he received ineffective assistance when trial counsel
advised him to accept a punishment much greater than expected in
exchange for his plea, that the guilty plea should be set aside
because he received no benefit from the plea; that he received
ineffective assistance when trial counsel failed to request that
evidence seized under a search warrant be suppressed; and that
he received ineffective assistance when trial counsel failed to
pursue as a defense his claim that the marijuana and firearms
seized at the residence belonged to his son, and not him.
Following the Commonwealth’s response to Felker’s
motion and Felker’s reply to the Commonwealth’s response, on
4
March 28, 2001, the trial court entered an order denying
Felker’s motion on the issues of ineffective assistance of
counsel concerning the plea agreement.
The order stated that
Felker had made his decision with regard to the plea agreement
with “full understanding of the situation.”
The trial court,
however, granted a hearing on the issue of ineffective
assistance of counsel concerning the search warrant because of
discrepancies in the time-stamps on the warrant and affidavit in
comparison with the time the warrant and affidavit were signed
by the district judge.
A hearing was also granted concerning
whether the district judge’s signature was genuine.
The trial court subsequently appointed counsel to
represent Felker at the hearing.
On July 23, 2001, appointed
counsel filed a supplement to the original RCr 11.42 motion in
which counsel sought to withdraw the allegation of error
concerning the warrant on the basis that there was no question
regarding the authenticity of the signature of the district
judge, and that the time discrepancies were due to a malfunction
in the Hopkins District Court time-stamp machine.
In the
supplement, counsel stated that at the hearing he would instead
seek the equitable relief of prerelease probation or the
amendment of Felker's sentences to run concurrently.
On July
31, 2001, Felker filed a motion to withdraw the supplement and
for the withdrawal of appointed counsel.
5
On August 14, 2001, a hearing was held on the timestamp and signature issues.
On August 21, 2001, the trial court
entered an order adopting and ratifying its March 20, 2001,
order and denying Felker’s motion concerning the issues
addressed at the hearing.
This appeal followed.
Felker contends that he received ineffective
assistance when trial counsel failed to advise him to withdraw
his guilty plea when it became apparent that the trial court was
going to impose a ten-year total prison term instead of a fiveyear total prison term which he claims he had been led to
believe he would receive in exchange for his guilty plea.
Felker also alleges that he received ineffective assistance
because his trial counsel failed to adequately investigate as a
defense his claim that the drugs and firearms seized from the
residence belonged to his son.
The two-pronged test for ineffective assistance of
counsel is (1) whether counsel made errors so serious that he
was not functioning as "counsel" guaranteed by the Sixth
Amendment, and (2) whether the deficient performance prejudiced
the defense.5
In analyzing trial counsel's performance, the
court must "indulge a strong presumption that counsel's conduct
5
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80
L.Ed.2d 674 (1984); Gall v. Commonwealth, Ky., 702 S.W.2d 37, 39 (1985),
cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986).
6
falls within the wide range of reasonable professional
assistance [.]"6
Where a defendant 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 assistance,7 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.8
Felker argues that trial counsel was ineffective
because he failed to advise Felker to withdraw his guilty plea
when it became apparent that the trial court was going to impose
a total prison sentence of ten years rather than the five-year
sentence that he had been led to expect.
Since Felker was
convicted of two Class D felonies, he alleges that he received
no benefit from the plea agreement because he received the
maximum prison term for two Class D felonies – five years’
imprisonment on each conviction to run consecutively.
6
Strickland, 466 U.S. at 688.
7
McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763
(1970).
8
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).
7
Felker’s claim that he received no benefit from his
plea agreement is not supported by the record.
First, as a
result of the plea agreement the charge for trafficking in
marijuana, second-offense, weapon-enhanced, a Class C felony,
was reduced to simple second-offense trafficking, a Class D
felony.
As a result, Felker’s maximum potential sentence was
reduced from 15 years to ten years.
Additionally, as a result
of the agreement, Felker received the benefit of probation,
which he had actively sought.
Although Felker was entitled to withdraw his guilty
plea pursuant to RCr 8.10 once the trial court refused to accept
the Commonwealth's initial recommendation, he chose not to do
so, and instead readily accepted the trial court’s consecutivesentencing precondition for probation.
The record from the
hearing on his plea of guilty reflects that Felker understood
that he was agreeing to a higher total sentence – ten years
instead of five - in return for probation, and that his decision
to plead guilty was knowingly, willingly, and voluntarily
entered.
A court deciding an ineffectiveness assistance claim
must judge the reasonableness of counsel's challenged conduct on
the facts of the particular case, viewed as of the time of
8
counsel's conduct.9
Advising a defendant to plead guilty does
not, in and of itself, constitute ineffective assistance of
counsel.10
A reviewing court, in determining whether counsel was
ineffective, must be highly deferential in scrutinizing
counsel's performance, and the tendency and temptation to
second-guess should be avoided.11
The reviewing court must look
to the particular facts of the case and determine whether the
acts or omissions were outside the wide range of professionally
competent assistance.12
In consideration of the benefits received under the
modified plea agreement – a reduction in one of the charges from
a Class C felony to a Class D felony and an assurance of
probation – trial counsel’s conduct did not fall outside of the
wide range of reasonable professional assistance, either by
advising Felker to accept the plea, or by failing to advise him
to withdraw his guilty plea.
Felker also argues that trial counsel failed to
adequately investigate as a defense the possibility that the
marijuana and firearms which were seized at his residence
belonged to his son.
This argument, however, lacks the
9
Wilson v. Commonwealth, Ky., 836 S.W.2d 872, 878 (1992), overruled on other
grounds, St. Clair v. Roark, Ky., 10 S.W.3d 482, 487 (1999).
10
Beecham v. Commonwealth, Ky., 657 S.W.2d 234 (1983).
11
Harper v. Commonwealth, Ky., 978 S.W.2d 311 (1998).
12
Id.
9
specificity required under RCr 11.42(2).
In order to prevail in
an RCr 11.42 proceeding, the movant must first allege in the
motion specific facts that if true would entitle him to relief.13
In both his original RCr 11.42 motion and on appeal
Felker fails to specify supporting facts concerning the
allegation that trial counsel failed to adequately investigate
the possibility of identifying his son as the sole culprit
which, if true, would warrant relief.
To the contrary, Felker
merely raises the vague allegation that trial counsel should
have undertaken an investigation with the objective of proving
that the marijuana and firearms located in his residence
belonged to his son.
The allegation does not specify the
evidence which trial counsel, through investigation, could have
discovered, the nature of the evidence, or the strength of the
evidence.
There is no statement about the facts which would
support Felker’s motion.
His vague assertions do not rise to
the standards required by RCr 11.42(2).
Due to his failure to
provide factual support as required by RCr 11.42, summary
dismissal of that part of his claim was proper.14
Further, Felker advised the trial court when the
guilty plea was entered that he was guilty of the allegations
against him.
The trial court specifically asked Felker whether
13
RCr 11.42(2).
14
Sanders v. Commonwealth, Ky., 89 S.W.3d 380, 390 (2002).
10
he was guilty of the allegations charged in the indictment, and
he admitted guilt.
Once it is determined that a guilty plea was
rendered voluntarily and intelligently, the plea confesses
everything charged in the indictment.15
The record discloses
that Felker voluntarily, knowingly and intelligently made the
decision to plead guilty and was aware of the ramifications.16
For the foregoing reasons, the order of the Hopkins
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jerry Felker, Pro Se
LaGrange, Kentucky
Albert B. Chandler III
Attorney General
J. Gary Bale
Assistant Attorney General
Frankfort, Kentucky
15
Taylor v. Commonwealth, Ky.App., 724 S.W.2d 223 (1986).
16
Boykin v. Alabama, 395 U.S. 238, 241, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274
(1969).
11
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.
