LARRY LEE HUGHES v. COMMONWEALTH OF KENTUCKY
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RENDERED:
SEPTEMBER 12, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-002322-MR
LARRY LEE HUGHES
APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
ACTION NO. 01-CR-00215
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
BUCKINGHAM, COMBS, and TACKETT, Judges.
COMBS, JUDGE.
Larry Lee Hughes appeals the order of the
McCracken Circuit Court which denied his motions for relief
under RCr1 11.42, for an evidentiary hearing, and for the
appointment of counsel.
We vacate the order entered on October
24, 2002, and remand for additional proceedings.
On June 30, 2001, Larry Lee Hughes purchased simulated
crack cocaine from an undercover police officer as part of a
reverse sting operation conducted by the Paducah Police
1
Kentucky Rules of Criminal Procedure.
Department.
During his arrest, defendant swallowed the
simulated cocaine that he had purchased.
He had a crack pipe
with residue in his possession; he was also operating a motor
vehicle on a suspended license.
On September 7, 2001, a McCracken County grand jury
returned a five-count indictment against Larry Lee Hughes.
Counts 1 and 2 of the indictment charged him with two counts of
first-degree possession of a controlled substance (cocaine);
count 3 charged him with one count of possessing drug
paraphernalia.
Count 4 charged him with operating a motor
vehicle while his license was revoked or suspended.
Finally,
count 5 charged him with being a persistent felony offender in
the second degree (PFO II) by virtue of a prior felony
conviction.
On November 30, 2001, Hughes pleaded guilty to two (2)
counts of first-degree possession of a controlled substance
(cocaine), possession of drug paraphernalia, and operating a
vehicle on a suspended license.
In his plea agreement, the
Commonwealth agreed to dismiss the PFO II charge.
Subsequently,
Hughes was sentenced to six years in prison.
On September 4, 2002, appellant pro se filed a motion
under RCr 11.42 to set aside his convictions and sentences.
He
also filed a supporting memorandum of law and a motion for an
evidentiary hearing.
As grounds for his motion, Hughes alleged
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that his trial counsel had rendered ineffective assistance by
failing: (1) to conduct a pre-trial investigation of his case,
(2) to consult with him prior to trial, and (3) to prepare a
proper defense and viable trial strategy.
Hughes alleges that
the cumulative effect of these errors deprived him of his
constitutional right to due process and equal protection of the
law.
On October 24, 2002, the Circuit Court entered an order
denying the RCr 11.42 motion.
This appeal followed.
On appeal, Hughes argues that the trial court erred by
failing to hold an evidentiary hearing.
After our review of the
record, we agree.
In Fraser v. Commonwealth, Ky., 59 S.W.3d 448 (2001),
the Kentucky Supreme Court addressed the proper procedure that a
trial court must follow when ruling on motions for appointment
of counsel and for an evidentiary hearing under RCr 11.42.
Fraser holds that it is incumbent upon the trial court to
determine whether the allegations in the motion can be resolved
on the face of the record.
required.
If so, an evidentiary hearing is not
However, a hearing is required if there is a material
issue of fact that cannot be conclusively resolved (i.e.,
conclusively proven or refuted) by an examination of the record
alone.
The trial judge may not simply disbelieve or dismiss the
movant’s factual allegations unless the record fails to
substantiate the contentions.
Id. at 452.
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The record before us
suggests that Hughes’s 11.42 motion was denied solely because of
the fact that he had pled guilty -- and the requisite
evidentiary grounds were either lacking or erroneously assumed
to exist.
It is readily apparent that not all reasonable avenues
of the appellant’s defense were explored.
Most striking is that
Hughes was indicted for possession of controlled substance when
in fact he possessed a simulated substance.
There is no
evidence that appellant’s counsel investigated the law
surrounding possession of a simulated substance or that she was
even aware that the substance was indeed simulated.
There is
also an absence of evidence that a lab report was made, which
would have been a prerequisite to substantiate a second count of
possession of cocaine.
This apparent lack of investigation,
coupled with counsel’s reluctance to meet with the appellant
prior to the entry of the guilty plea, suggests that an
incompetent defense might have been provided and accordingly
compels that an evidentiary hearing be held.
Failure to do so
was error.
Additionally, our review of the video transcripts of
the hearing during which Hughes entered his plea of guilty
reveals serious digressions from proper procedure as dictated by
Boykin v. Alabama 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274.
The instructions given by the court at the time of entry of a
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plea of guilty are of paramount importance with respect to
guaranteeing a defendant’s right to due process of the law.
They must be meticulously discussed with the defendant in order
for the court to ascertain that there is a complete meeting of
the minds and that the plea is entered intelligently, knowingly,
and voluntarily.
In this case, the court asked the defendant if
he were aware of his constitutional rights.
colloquy followed.
No additional
Nor was any explanation of rights
forthcoming from the bench.
The abbreviated and perfunctory
exchange was wholly insufficient to determine if Hughes properly
understood the nature of the rights that he was waiving in
entering a plea of guilty.
The October 30, 2002, judgment of the McCracken
Circuit Court is vacated, and this matter is remanded for an
order granting an evidentiary hearing and the appointment of
counsel.
ALL CONCUR.
BRIEF FOR APPELLANT:
Larry Lee Hughes, pro se
Fredonia, Kentucky
BRIEF FOR APPELLEE:
Albert B. Chandler III
Attorney General of Kentucky
Ian G. Sonego
Assistant Attorney General
Frankfort, Kentucky
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