RICHARD LEE HOUP v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: JUNE 10, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001769-MR
RICHARD LEE HOUP
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA R. GOODWINE, JUDGE
INDICTMENT NO. 02-CR-00978
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HENRY AND SCHRODER, JUDGES; EMBERTON, SENIOR JUDGE.1
HENRY, JUDGE:
Richard Lee Houp appeals pro se from an August
24, 2004 opinion and order of the Fayette Circuit Court denying
his motion for post-conviction relief pursuant to RCr2 11.42.
Upon review, we affirm.
On September 16, 2002, Houp was indicted by the
Fayette County Grand Jury on a count of obtaining or attempting
1
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
2
Kentucky Rules of Criminal Procedure.
to obtain a controlled substance prescription by fraud, a Class
D felony, and a count of being a first degree persistent felony
offender.3
A uniform citation issued by the arresting police
officer indicates that he was notified by the Walgreen’s
Pharmacy at 260 East New Circle Road in Lexington that Houp had
attempted to obtain Lortab and Valium via forged prescriptions
in the name of “Melissa Jo Jewitt.”
The citation further states
that when Houp was asked for proper identification by the
pharmacist, he immediately left the pharmacy’s drive-thru and
proceeded south on Bryan Avenue.
While Houp was stopped by
another officer, the arresting officer verified that the
prescription was a fake, and Houp was arrested.
Houp was
subsequently arraigned on the aforementioned charges and entered
a plea of not guilty to the indictment.
On January 10, 2003, Houp filed a petition to enter a
guilty plea to the pending charges.
certificate of counsel therewith.
His attorney filed a
After a lengthy plea colloquy
in open court with Houp and his attorney, the trial court
entered judgment in accordance with the guilty plea and, on
March 11, 2003, sentenced Houp to one (1) year imprisonment on
the fraud count enhanced to ten (10) years as a result of the
3
The PFO I count of the indictment specifically referenced Houp’s previous
convictions for theft by unlawful taking over $300, a Class D felony under
Kentucky Revised Statute (“KRS”) 514.030(2), and for selling a controlled
substance to a minor, a Class B or C felony under KRS 218A.1401.
-2-
first degree persistent felony offender count, consistent with
the Commonwealth’s recommendation.
On January 5, 2004, Houp filed a motion to vacate
judgment and sentence on a plea of guilty, pursuant to RCr
11.42.
As grounds for this motion, Houp argued that his guilty
plea was not entered knowingly, voluntarily, and intelligently
because it resulted from the erroneous advice of his counsel as
to the potential minimum amount of time Houp would be imprisoned
following a conviction and as to the availability of parole, and
from his belief that his attorney had done nothing to prepare
for trial, making his conviction a near certainty.
He also
contended that his attorney refused to represent him at trial
because of Houp’s lack of financial resources.
Houp further
argued that his counsel was ineffective because he failed to
conduct a properly thorough investigation into the facts of
Houp’s case, because he failed to consult with Houp as to trial
strategy, and because he failed to present a defense.
Following the Commonwealth’s response to this motion,
the trial court entered an opinion and order on August 24, 2004
overruling Houp’s motion without an evidentiary hearing.
As
grounds for this decision, the trial court found that Houp’s
ineffective assistance of counsel claims were without merit and
were made moot because the trial court record clearly showed
that Houp’s guilty plea was made intelligently, freely, and
-3-
voluntarily, and with full knowledge of his possible defenses
and constitutional rights.
The trial court also noted that Houp
had expressed satisfaction with the representation and advice
afforded to him by his counsel.4
This appeal followed.
On appeal, Houp raises the same issues that he
presented to the trial court.
The Commonwealth counters with
contentions that Houp’s RCr 11.42 motion was not properly
verified, and that Houp affirmatively waived his defenses during
the plea colloquy with the trial court.
As an initial matter, the Commonwealth provides us
with no specific factual details as to why the verification
filed by Houp in connection with his motion is improper.
Moreover, the case law referenced by the Commonwealth provides
nothing of a particular nature to support its general argument.
We further note that this argument was not presented to the
trial court, and the trial court made no comment as to whether
or not Houp’s verification was proper or improper.
Consequently, we will not consider this particular argument any
further.
In determining whether counsel rendered ineffective
assistance in connection with a defendant's guilty plea, this
court has stated:
4
On August 25, 2004, the trial court entered an amended opinion and order as
to Houp’s motion. However, this opinion and order did not differ in any
significant way from the one originally entered by the court, so it will not
be addressed in any further detail here.
-4-
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.
Sparks v. Commonwealth, 721 S.W.2d 726, 727-28 (Ky.App. 1986),
citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88
L.Ed.2d 203 (1985); see also Russell v. Commonwealth, 992 S.W.2d
871, 874 (Ky.App. 1999).
“The trial court's inquiry into
allegations of ineffective assistance of counsel requires the
court to determine whether counsel's performance was below
professional standards and ‘caused the defendant to lose what he
otherwise would probably have won.’”
Bronk v. Commonwealth, 58
S.W.3d 482, 487 (Ky. 2001), quoting Foley v. Commonwealth, 17
S.W.3d 878, 884 (Ky. 2000), overruled on other grounds by
Stopher v. Conliffe, _____S.W.3d_____(Ky. 2005).
It also
requires an evaluation of "whether counsel was so thoroughly
ineffective that defeat was snatched from the hands of probable
victory."
Id., quoting Foley, supra.
The voluntariness of a
guilty plea can only be determined by examining the “totality of
the circumstances surrounding the guilty plea.”
-5-
Id. at 486; see
also Rodriquez v. Commmonwealth, 87 S.W.3d 8, 10-11 (Ky. 2002).
“These circumstances include the accused’s demeanor, background
and experience, and whether the record reveals that the plea was
voluntarily made.”
D.R. v. Commonwealth, 64 S.W.3d 292, 294
(Ky.App. 2001) (Citations omitted).
We further note our Supreme Court’s mandate that
“[j]udicial review of the performance of defense counsel must be
very deferential to counsel and to the circumstances under which
they are required to operate.
There is always a strong
presumption that the conduct of counsel falls within the wide
range of reasonable professional assistance because hindsight is
always perfect.”
Hodge v. Commonwealth, 116 S.W.3 463, 469 (Ky.
2002), citing Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 152
L.Ed.2d 914 (2002).
Moreover, simply advising a client to plead
guilty, in and of itself, is not evidence of ineffective
assistance of counsel.
Rigdon v. Commonwealth, 144 S.W.3d 283,
288 (Ky.App. 2004), citing Beecham v. Commonwealth, 657 S.W.2d
234, 236-37 (Ky. 1983).
In Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001),
our Supreme Court summarized the procedure for trial courts to
follow in determining whether or not to conduct an evidentiary
hearing under RCr 11.42.
“After the answer is filed, the trial
judge shall determine whether the allegations in the motion can
be resolved on the face of the record, in which event an
-6-
evidentiary hearing is not required. A hearing is required if
there is a material issue of fact that cannot be conclusively
resolved, i.e., conclusively proved or disproved, by an
examination of the record.”
Id. at 452, citing Stanford v.
Commonwealth, Ky., 854 S.W.2d 742, 743-44 (Ky. 1993), cert.
denied, 510 U.S. 1049, 114 S.Ct. 703, 126 L.Ed.2d 669 (1994);
Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967).
Our courts have further held that “a defendant is not
entitled to an evidentiary hearing to simply fish for claims,
and such is not warranted if the record resolves all issues
raised in the RCr 11.42 motion.”
Baze v. Commonwealth, 23
S.W.3d 619, 628 (Ky. 2000), citing Glass v. Commonwealth, 474
S.W.2d 400 (Ky. 1972); Ford v. Commonwealth, 453 S.W.2d 551 (Ky.
1970).
“Conclusionary allegations which are not supported by
specific facts do not justify an evidentiary hearing because RCr
11.42 does not require a hearing to serve the function of a
discovery deposition.”
Sanders v. Commonwealth, 89 S.W.3d 380,
385 (Ky. 2002), citing Sanborn v. Commonwealth, 975 S.W.2d 905
(Ky. 1998).
Houp cites Sparks v. Sowders, 852 F.2d 883 (6th Cir.
1988) for the proposition that “gross misadvice concerning
parole eligibility can amount to ineffective assistance of
counsel.”
Id. at 885.
In Sparks, the petitioner alleged that
he was told by his attorney that he could receive a life
-7-
sentence without parole if he were convicted of murder; however,
in reality, the petitioner would have been eligible for parole
even if he were given a life sentence.
Id.
The petitioner
further alleged that had he been given the correct information
concerning parole, he would not have pled guilty and would have
proceeded to trial.
Id.
The Court concluded that these
allegations were sufficient to necessitate an evidentiary
hearing and remanded the case to be conducted accordingly.
Id.
Houp alleged in his RCr 11.42 motion, and again here,
that his trial counsel incorrectly advised him that “if he went
to trial he would be convicted and sentenced to the maximum
having to serve 10 years [without the eligibility of parole]
upon conviction as a Persistent Felony Offender First Degree.”
KRS 532.080(6)(b) clearly provides, however, that if the offense
for which a defendant stands convicted is a Class D felony, “a
persistent felony offender in the first degree shall be
sentenced to an indeterminate term of imprisonment, the maximum
of which shall not be less than ten (10) years nor more than
twenty (20) years.” (Emphasis added).
Moreover, KRS 532.080(7)
provides: “A person who is found to be a persistent felony
offender in the first degree shall not be eligible for
probation, shock probation, or conditional discharge, unless all
offenses for which the person stands convicted are Class D
felony offenses which do not involve a violent act against a
-8-
person, in which case probation, shock probation, or conditional
discharge may be granted.”
(Emphasis added).
The record here shows that the previous standing
felony convictions cited in Houp’s indictment as grounds for a
PFO I charge included a conviction for selling a controlled
substance to a minor, a Class B or C felony under KRS 218A.1401.
It is well established that interpretation and construction of a
statute is a matter of law for the court.
Floyd County Board of
Education v. Ratliff, 955 S.W.2d 921, 925 (Ky. 1997).
We must
interpret statutes according to their plain meaning and in
accordance with the intent of the legislature.
Id.
We
interpret the phrase "unless all offenses for which the person
stands convicted are Class D felony offenses" as specifically
including those offenses for which the defendant has previously
been convicted. In reaching this conclusion, we point to
subsequent statutory language in KRS 532.080(7) that reads,
"[i]f the offense the person presently stands convicted of..."
By utilizing the word "presently," the legislature has indicated
that only an offense for which the defendant is currently
convicted is to be considered. If the legislature had so
intended, it could have utilized the word "presently" and
required only "present" convictions to be considered for
probation purposes where Class D felony offenses are involved.
Therefore, we are of the opinion that Houp was ineligible for
-9-
probation under KRS 532.080(7).
Assuming, arguendo, that Houp
is correct in asserting that he was provided the legal advice
noted above, we cannot conclude that his attorney was in error
in doing so.
Therefore, Houp’s argument that this ground
entitles him to RCr 11.42 relief is without merit.
Houp’s other arguments as to the ineffectiveness of
his counsel are equally without merit.
As noted above, the
trial court conducted a lengthy colloquy with Houp, who was
placed under oath, during the guilty plea proceedings in order
to verify that his guilty plea was being given voluntarily and
intelligently.
In particular, Houp stated under oath that he
had discussed the defenses available to him in his case with his
attorney, and that he was satisfied with the representation and
advice that his attorney had given him.
When advised by the
trial court during the plea colloquy that he had defenses
available to him under the specific facts of his case, Houp told
the court that he was aware of these defenses but wanted to
proceed with his guilty plea.
He further stated that he
understood all of his rights and that by pleading guilty he was
giving up those rights, including his right to an appeal.5
Accordingly, the trial record, particularly Houp’s
assurances that he was satisfied with the representation of his
5
We further note that Houp had previously signed and filed a petition to
enter a guilty plea as to the pending charges, in which he expressed the same
sentiments, including satisfaction with the representation of his counsel.
-10-
counsel, clearly refutes the allegations made in Houp’s RCr
11.42 motion; moreover, we are satisfied that the trial court’s
colloquy with Houp, and the trial court record as a whole,
establishes that his guilty plea was voluntary, knowing, and
intelligent.
required.
Therefore, we find that no evidentiary hearing was
Allen v. Commonwealth, 668 S.W.2d 556, 557 (Ky.App.
1984), citing Newsome v. Commonwealth, 456 S.W.2d 686 (Ky.
1970); Maggard v. Commonwealth, 394 S.W.2d 893 (Ky. 1965); see
also Ford, 453 S.W.2d at 551-52.
Consequently, the decision of the Fayette Circuit
Court overruling Houp’s RCr 11.42 motion is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Richard Lee Houp
Central City, Kentucky
Gregory D. Stumbo
Attorney General
Ian G. Sonego
Assistant Attorney General
Frankfort, Kentucky
-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.