WILLIAM HODGE v. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 10, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2004-CA-001380-MR
WILLIAM HODGE
APPELLANT
APPEAL FROM HICKMAN CIRCUIT COURT
HONORABLE WILLIAM L. SHADOAN, JUDGE
ACTION NO. 00-CR-00045
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
KNOPF, TAYLOR, AND VANMETER, JUDGES.
KNOPF, JUDGE:
William Hodge appeals from a May 20, 2004, order
of the Hickman Circuit Court summarily denying his RCr 11.42
motion for post-conviction relief.
Hodge asserts that, due to
counsel’s ineffective assistance, he pled guilty to a charge for
which there was no factual basis.
Because the record does not
clearly refute Hodge’s assertion, we vacate and remand for an
evidentiary hearing.
In December 2000, the Hickman grand jury indicted
Hodge for driving under the influence (second offense), a
misdemeanor;1 operating a motor vehicle on a license suspended or
revoked for DUI (third offense), a class-D felony;2 and operating
a vehicle without insurance, a violation.3
In exchange for
Hodge’s guilty plea to all of these charges, the Commonwealth
recommended that Hodge be sentenced to twelve-month’s
incarceration for the misdemeanor to be served concurrently with
two year’s imprisonment for the felony and a $50.00 fine for the
insurance violation.
By judgment entered April 5, 2001, the
Hickman Circuit Court sentenced Hodge according to the
Commonwealth’s recommendation, and then in September 2001,
granted Hodge’s motion for shock probation.
In March 2004, Hodge brought the present motion
seeking relief from his April 2001, conviction.
He contends
that his guilty plea should be deemed involuntary because it
resulted from counsel’s ineffective assistance.
Counsel erred,
he maintains, by advising him to plead guilty to a third-offense
felony under KRS 189A.090, when there was no evidence that he
had previously been convicted for violating that statute.
Counsel also erred, Hodge asserts, by advising him to accept a
1
KRS 189A.010(5)(b).
2
KRS 189A.090(2)(c).
3
KRS 304.39-080(5).
2
twelve-month sentence for the DUI misdemeanor for which the
maximum legal sentence is six months.4
As Hodge notes, he is entitled to relief if he can
establish both that trial counsel erred so egregiously that her
assistance can be deemed outside the bounds of reasonably
competent counsel, and that absent the error there is a
reasonable probability that Hodge would not have pled guilty but
would have insisted upon going to trial.5
An RCr 11.42 movant
whose facially meritorious allegations are neither refuted nor
confirmed by the underlying record is entitled to an evidentiary
hearing at which his allegations may be tried.6
We believe that
Hodge is entitled to a hearing.
KRS 189A.090 provides that “[n]o person shall operate
a motor vehicle while his license is revoked or suspended for
violation of KRS 189A.010 [the DUI statute].”
A third violation
of this statute is punished as a class-D felony.7
KRS 186.620,
on the other hand, provides that “[n]o person . . . whose
operator’s license has been . . . suspended or revoked . . .
shall operate any motor vehicle upon the highways while the
4
KRS 189A.010(5)(b).
5
Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203
(1985); Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001).
6
Id.
7
KRS 189.090(2)(c).
3
license is . . . suspended, or revoked.”
Any violation of this
statute is punished as a class-B misdemeanor.8
Hodge concedes that prior to the incident giving rise
to the December 2000 indictment for violating KRS 189A.090, he
had been convicted several times for driving on a suspended
license.
He asserts, however, that the Commonwealth was not
prepared to prove that his prior convictions were for violations
of KRS 189A.090 as opposed to KRS 186.620.
He maintains,
therefore, that he should not have been charged with a thirdoffense felony under KRS 189A.090(2)(c), but rather with a
first-offense misdemeanor under KRS 189A.090(2)(a).
At a
preliminary hearing, the prosecutor admitted that Hodge’s record
did not clearly establish the alleged prior convictions under
KRS 189A.090 and that thus he probably had been mis-indicted.
Nevertheless, the trial court summarily denied Hodge’s motion,
apparently reasoning that prior KRS 189A.090 convictions could
be inferred from the fact that Hodge had prior DUI convictions.
We disagree.
Counsel, of course, has a duty to conduct a reasonable
investigation into the facts and the law bearing on her client’s
case.9
8
We agree with Hodge that a reasonable investigation in
KRS 186.990.
9
Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d
471 (2003).
4
this case would have revealed that proof of Hodge’s prior
convictions was apparently lacking and that thus the felony
charge was apt to be invalid.
It would also have revealed that
the Commonwealth was proposing a sentence for Hodge’s DUI
offense that was twice the legal maximum.
Counsel erred,
therefore, by failing to discover these irregularities and by
advising Hodge to plead guilty before they had been addressed.
Whether the errors were prejudicial depends on whether
the felony charge in fact lacked an evidentiary basis, and this
we cannot determine from the record before us.
Hodge is thus
entitled to a hearing at which he may challenge the factual
basis for the felony charge.
We note that the Supreme Court has
held that when an element of an offense or a status is a prior
conviction, “the ‘best evidence’ of that conviction is a
certified copy of the prior judgment.”10
We thus disagree with
the Commonwealth’s suggestion that Hodge’s alleged prior
convictions under KRS 189A.090 could be proved circumstantially
by proof of prior DUI convictions.
If on remand the
Commonwealth can not prove Hodge’s alleged prior convictions
with copies of the judgments, then counsel’s error in permitting
Hodge to plead guilty to a felony for which there was no factual
basis must be deemed prejudicial.
Hodge’s April 2001,
conviction, in that case, should be vacated and Hodge should be
10
Commonwealth v. Duncan, 939 S.W.2d 336, 337 (Ky. 1997).
5
allowed to withdraw his plea.
Accordingly, we vacate the May
20, 2004, order of the Hickman Circuit Court and remand for
additional proceedings consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Richard Edwin Neal
Assistant Public Advocate
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
6
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