SMITH (KENDRIC DEWAYNE) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: NOVEMBER 21, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
KENDRIC DEWAYNE SMITH
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 03-CR-00231 AND 03-CR-00231-002
COMMONWEALTH OF KENTUCKY
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BEFORE: MOORE AND THOMPSON, JUDGES; HENRY,1 SENIOR JUDGE.
THOMPSON, JUDGE: Kendric Dewayne Smith appeals from an order of the
Fayette Circuit Court denying his motion for post-conviction relief pursuant to
Kentucky Rules of Criminal Procedure (RCr) 11.42. For the reasons set forth
herein, we affirm.
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
On March 18, 2004, Smith was indicted for first-degree robbery; firstdegree burglary; first-degree rape; two counts of first-degree sodomy; seconddegree unlawful transaction with a minor; and possession of a handgun by a
convicted felon. The seven-count indictment stemmed from an incident where
Smith, armed with a handgun, and his co-defendants entered the residence of a
female and burglarized the home. Smith then raped and sodomized the female.
After his two co-defendants agreed to testify against him, Smith
appeared before the trial court and entered into a plea agreement with the
Commonwealth. Under the terms of the agreement, Smith pled guilty to burglary,
rape, and sodomy, all in the first degree. After reading the recommended
sentences, the trial court informed Smith that it would determine whether his
sentences were to be served consecutively or concurrently. At the conclusion of
the hearing, Smith testified that he understood and desired to enter the plea.
On May 13, 2005, Smith and his counsel appeared at the sentencing
hearing and presented an argument in mitigation. Although acknowledging that
his client was not eligible for probation or parole until he served eighty-five
percent of his sentence, Smith’s counsel requested that the trial court use its
discretion to sentence Smith to a concurrent rather than a consecutive term of
Counsel stated that his client had shown remorse and was taking
responsibility for his transgressions. After stating that his client understood that
the trial court could deny the request, counsel argued that Smith’s only chance of
having a life after prison was to receive a concurrent sentence. After denying this
request, the trial court ordered that Smith’s sentences run consecutively for a total
sentence of forty-years’ imprisonment.
On September 27, 2006, Smith filed a motion for post-conviction
relief pursuant to RCr 11.42 alleging ineffective assistance of counsel. On April
11, 2007, without conducting a hearing, the trial court denied the motion for postconviction relief. This appeal followed.
Smith contends that his guilty plea was not knowingly, voluntarily,
and intelligently made because his counsel rendered ineffective assistance. He
contends that his counsel advised him that he was accepting a fifteen-year sentence
when; in fact, he was receiving a forty-year sentence. He further contends that
counsel misinformed him that he would be eligible for parole after serving twenty
percent of his sentence. Thus, he contends that he was impermissibly misled into
accepting a much greater sentence than he believed. We disagree.
The standard of review for claims of ineffective assistance of counsel
was established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). The Strickland standard, however, is modified when a
defendant waives a jury trial and pleads guilty to a criminal offense. Under the
modified standard, a defendant can establish ineffective assistance of counsel by
showing: (1) that defense counsel’s performance fell outside the wide range of
professionally competent assistance; and (2) that defense counsel’s deficient
performance created a reasonable probability that the defendant would not have
pled guilty but would have insisted on going to trial absent counsel’s deficient
performance. Sparks v. Commonwealth, 721 S.W.2d 726, 727-28 (Ky.App. 1986).
An attorney’s performance is not judged in a vacuum but is judged by
the degree that counsel’s performance deviates from the quality of representation
customarily provided by the legal profession. Centers v. Commonwealth, 799
S.W.2d 51, 55 (Ky.App. 1990). Additionally, in reviewing ineffective assistance
claims, the sworn declarations in open court of a defendant and his defense counsel
carry a strong presumption of veracity. Blackledge v. Allison, 431 U.S. 63, 74, 97
S.Ct. 1621, 52 L.Ed.2d 136 (1977).
Smith's claim that his guilty plea was not knowingly, voluntarily, and
intelligently made is refuted by the record. During his plea hearing, the trial court
informed Smith that it had the discretion to determine whether his sentences were
to be served consecutively or concurrently. Further, during sentencing, defense
counsel, while standing next to Smith, stated that Smith would have to serve
eighty-five percent of the imposed sentence but asked the trial court not to run his
sentences consecutively because it would deprive Smith of any future.
From the evidence in the record, Smith’s allegation stands in stark
contrast to the affirmative statements made by the trial court and his counsel. On
numerous occasions, Smith was put on notice that he potentially faced a forty-year
sentence. Moreover, during the sentencing hearing, Smith’s counsel stated that
Smith understood that he could have his sentences run consecutively. Regarding
Smith’s parole eligibility, Smith’s counsel, standing directly beside his client,
stated that Smith had to serve eighty-five percent of the sentence imposed, and
Smith voiced no objection. Based on these facts, Smith’s claim is conclusively
refuted by the record.
Smith next contends that the Commonwealth’s failure to follow its
sentencing recommendation rendered his guilty plea involuntary and unknowing.
Under the terms of the Commonwealth’s offer, Smith contends that he was to
receive a total sentence of fifteen-years’ imprisonment and would become eligible
for parole after serving twenty percent of this sentence. Therefore, he contends
that the Commonwealth’s failure to abide by its agreement resulted in him
receiving a greater sentence than agreed, and rendered his plea constitutionally
invalid. We disagree.
In his written plea agreement, Smith pled guilty to burglary, rape, and
sodomy, all in the first degree. On the first page of the agreement, it clearly states
that “the Court may order the sentence on each count to run either concurrently or
consecutively with each other.” When Smith entered the plea, the Commonwealth
in open court stated that it recommended ten years for the burglary and fifteen
years for each of the remaining charges, rape and sodomy.
The trial court then informed Smith that it had the discretion to run his
sentences consecutively or concurrently with each other. Additionally, Smith’s
counsel’s statement regarding the eighty-five percent parole eligibility requirement
contradicts Smith’s twenty percent parole eligibility claim. Accordingly, the
record refutes that the Commonwealth offered Smith a fifteen-year sentence with
parole eligibility after the service of twenty percent of the sentence imposed.
For the foregoing reasons, the Fayette Circuit Court’s order denying
Smith’s motion for post-conviction relief is affirmed.
BRIEFS FOR APPELLANTS:
BRIEF FOR APPELLEE:
Kendric Dewayne Smith, Pro Se
Attorney General of Kentucky
James C. Maxson
Assistant Attorney General