STIGER (DAVID) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: OCTOBER 24, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
ACTION NOS. 03-CR-000060, 03-CR-000109 & 03-CR-003264
COMMONWEALTH OF KENTUCKY
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BEFORE: CLAYTON AND VANMETER, JUDGES; KNOPF,1 SENIOR
CLAYTON, JUDGE: This appeal arises from a Jefferson Circuit Court order
denying David Stiger’s Kentucky Rules of Civil Procedure (RCr) 11.42 motion to
Senior Judge William L. Knopf sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
vacate, alter, or amend his conviction. Stiger claims that his attorney failed to
properly advise him concerning parole eligibility which led to his decision to plead
guilty. Stiger also claims that the Jefferson Circuit Court erred in failing to appoint
defense counsel and in denying his request for an evidentiary hearing. For those
reasons Stiger requests that this Court reverse the Jefferson Circuit Court’s order.
On January 8, 2003, David Stiger was indicted on four (4) counts of
first-degree robbery, one (1) count of first-degree burglary, one (1) count of firstdegree unlawful imprisonment, and one (1) count of impersonating a police officer.
On the same day, Stiger was indicted on a separate case which included one (1)
count of first-degree robbery and one (1) count of first-degree burglary. In
addition, Stiger was also indicted for being a first-degree persistent felony offender
On December 16, 2003, Stiger entered a guilty plea in exchange for
the Commonwealth’s offer of ten (10) years imprisonment on each burglary and
robbery charge and five (5) years imprisonment on unlawful imprisonment and
impersonating a police officer, all charges to run concurrently for a total of ten (10)
years enhanced to twenty (20) years by the persistent felony offender charge.
During the guilty plea, the Jefferson Circuit Court thoroughly questioned Stiger
and found that he knowingly, voluntarily and intelligently pled guilty. The matter
was continued for final sentencing on January 26, 2004. The final judgment of
conviction and sentence was entered on January 30, 2004.
Now Stiger appeals denial of his RCr 11.42 motion on three (3)
grounds: (1) Stiger claims that defense counsel was ineffective because counsel
did not advise him as to parole eligibility; (2) Stiger claims that this failure
rendered his plea involuntary; and (3) Stiger claims that the trial court erred by
denying his request for an evidentiary hearing. We disagree on all grounds and
shall discuss each argument in turn.
First, Stiger argues that defense counsel was ineffective by failing to
inform him that he would be ineligible for parole until he served 85% of the
sentence. Instead, Stiger claims that he believed that if he accepted the
Commonwealth’s offer that the persistent felony offender charge would be
dismissed.2 Stiger claims that defense counsel’s failure to advise him regarding
parole eligibility caused him to take a plea that he otherwise would not have taken.
In order to prevail on an ineffective assistance of counsel claim, a
movant must show that his counsel’s performance was deficient and that the
deficiency prejudiced the case. Strickland v. Washington, 466 U.S. 668, 687, 104
S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Further, courts must examine counsel’s
conduct in light of professional norms based on a standard of reasonableness.
Fraser v. Commonwealth of Kentucky, 59 S.W.3d 448, 452 (Ky. 2001). With
respect to a guilty plea, however, a movant must also show that counsel’s
performance so seriously affected the case, that but for the deficiency, the movant
Although Stiger now claims he did not knowingly pled guilty to the PFO 1 charge, in his RCr
11.42 motion filed in the Jefferson Circuit Court, Stiger admitted that he knowingly pled guilty
to the PFO 1 charge. Instead, Stiger then only claimed that he did not understand the parole
would not have pled guilty and would have insisted on going to trial. Hill v.
Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985).
Stiger relies on the United States Sixth Circuit Court of Appeals’
opinion in Sparks v. Sowders, 852 F.2d 882, 885 (6th Cir. 1988), which held that
“gross misadvice concerning parole eligibility can amount to ineffective assistance
of counsel.” Stigers argues that his attorney’s failure to advise him as to parole
eligibility rises to the level of ineffective assistance of counsel. We disagree.
The Kentucky Supreme Court in Commonwealth v. Padilla, 253
S.W.3d 482, 484-85 (Ky. 2008), recently held that defense counsel’s failure to
advise a client of collateral matters does not constitute ineffective assistance of
counsel. Although the Court recognized the Sixth Circuit ruling in Sparks, the
Court also recognized the divergent opinion maintained by other jurisdictions. The
As collateral consequences are outside the scope of the
guarantee of the Sixth Amendment right to counsel, it
follows that counsel’s failure to advise Appellee of such
collateral issue or his act of advising Appellee incorrectly
provides no basis for relief. In neither instance is the
matter required to be addressed by counsel, and so an
attorney’s failure in that regard cannot constitute
ineffectiveness entitling a criminal defendant to relief
under Strickland v. Washington.
Id. at 485. See also Turner v. Commonwealth, 647 S.W.2d 500, 502 (Ky. App.
1982) (Failure of trial court to advise defendant of a mandatory service of sentence
prior to eligibility for parole is not grounds for RCr 11.42 relief.)
Second, Stiger alleges that defense counsel’s mistakes were so
egregious that they rendered his plea involuntary under Boykin v. Alabama, 395
U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), which requires pleas to be
knowingly, voluntarily and intelligently made.
However, the failure of counsel or the court to inform him of all
possible consequences of his plea will not render the plea involuntary. This Court,
in Turner v. Commonwealth, 647 S.W.2d 500-01 (Ky. App. 1982) stated:
a knowing, voluntary and intelligent waiver does not
necessarily include a requirement that the defendant be
informed of every possible consequence and aspect of the
guilty plea. A guilty plea that is brought about by a
person’s own free will is not less valid because he did not
know all possible consequences of the plea and all
possible alternative courses of action. To require such
would lead to the absurd result that a person pleading
guilty would need a course in criminal law and penology.
Although he was uninformed as to the potential sentence
consequences, Stiger pled guilty of his own free will. The circuit court conducted
a thorough plea colloquy with Stiger in which he acknowledged that he voluntarily
pled guilty to the charges, including PFO 1. Stiger entered his plea knowingly,
intelligently, and voluntarily, albeit with the incomplete information about all
Third, Stiger maintains that the circuit court erred by denying his
request for an evidentiary hearing on his motion for RCr 11.42 as well as his
request for counsel to represent him during the proceedings. We disagree. An
evidentiary hearing is not required on the motion if the issues raised are refuted by
the record of the trial court. Strickland, 466 U.S. at 687. Instead, a hearing is only
required if the motion “raises a material issue of fact that cannot be determined on
the face of the record[.]” RCr 11.42(5). Since parole eligibility is a collateral
issue, Stiger was not entitled to a hearing. Padilla, 253 S.W.3d at 484-85.
Further RCr 11.42(5)3 only requires that an indigent appellant be
provided counsel during an RCr 11.42 proceeding when he or she is indigent and
also entitled to a hearing. Commonwealth v. Stamps, 672 S.W.2d 336, 339 (Ky.
1984). Because Stiger is not entitled to a hearing, we find that the trial court was
not required to appoint counsel.
Accordingly, we affirm the order for the Jefferson Circuit Court.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
David Stiger, Pro Se
Sandy Hook, Kentucky
Attorney General of Kentucky
Tami Allen Stetler
Assistant Attorney General
RCr 11.42(5) provides: Affirmative allegations contained in the answer shall be treated as
controverted or avoided of record. If the answer raises a material issue of fact that cannot be
determined on the face of the record the court shall grant a prompt hearing and, if the movant is
without counsel of record and if financially unable to employ counsel, shall upon specific written
request by the movant appoint counsel to represent the movant in the proceeding, including