PHELPS (JAMES LONNIE) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: SEPTEMBER 5, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
JAMES LONNIE PHELPS
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 05-CR-00108
COMMONWEALTH OF KENTUCKY
AFFIRMING IN PART,
VACATING IN PART,
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BEFORE: FORMTEXT CLAYTON, MOORE, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: James Lonnie Phelps brings this appeal from an April 18,
2007, Order of the Fayette Circuit Court denying his Kentucky Rules of Criminal
Procedure (RCr) 11.42 motion without an evidentiary hearing. We affirm in part,
vacate in part, and remand.
Phelps was incarcerated at Luther Lucket Correctional Facility upon a
ten-year sentence of imprisonment. On November 29, 2004, Phelps was
transferred from Luther Lucket Correctional Complex to Blackburn Correctional
Complex. On the date of his transfer, Phelps walked away from the facility.
Phelps was subsequently indicted by a Fayette County Grand Jury upon the charge
of second-degree escape and first-degree persistent felony offender. On March 11,
2005, Phelps entered a guilty plea upon second-degree escape and first-degree
persistent felony offender and was sentenced to ten-years’ imprisonment.
Thereafter, Phelps filed a pro se RCr 11.42 motion to vacate sentence. The circuit
court appointed counsel to represent Phelps, and counsel then filed a supplement to
the pro se motion. The circuit court denied Phelps’ RCr 11.42 motion without an
evidentiary hearing by order entered April 18, 2006. This appeal follows.
Phelps contends the circuit court erred by denying his RCr 11.42
motion without an evidentiary hearing. When an RCr 11.42 motion is denied
without an evidentiary hearing, this Court must determine whether there is a
“material issue of fact that cannot be conclusively resolved, i.e., conclusively
proved or disproved, by an examination of the record.” Fraser v. Com., 59 S.W.3d
448, 452 (Ky. 2001). The circuit court may not simply disbelieve movant’s factual
allegations in the absence of evidence in the record to refute same. Id. If a
material issue of fact exists that cannot be resolved upon the face of the record, the
circuit court must grant movant’s motion for an evidentiary hearing. If movant’s
allegations are refuted upon the face of the record, the circuit court may deny the
RCr 11.42 motion without an evidentiary hearing.
Phelps argues that trial counsel was ineffective for “inadequately
explain[ing] the plea deal, misleading him as to believe the length of his sentence
would be one year . . . .” In fact, Phelps points out he was sentenced to ten-years’
imprisonment. He insists that had he known of the ten-year sentence he would not
have pleaded guilty but would have elected to go to trial.
To prevail, Phelps must demonstrate that counsel’s assistance was
deficient and that such deficiency resulted in prejudicial error. See Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As Phelps
entered a guilty plea, he must specifically demonstrate that but for counsel’s
deficient performance he would not have pleaded guilty and instead would have
insisted upon going to trial. See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88
L.Ed.2d 203 (1985).
In this case, Phelps makes the bare allegation that trial counsel misled
him into believing he would receive a one-year sentence of imprisonment under
the plea agreement with the Commonwealth. However, the record in this case
clearly refutes this allegation. Before pleading guilty, the trial judge specifically
asked Phelps if he understood that ten-years’ imprisonment was “a pretty big
sentence.” To this question Phelps responded in the affirmative. Additionally, the
judge specifically asked Phelps if he understood that under the plea agreement the
Commonwealth recommended a one-year sentence of imprisonment upon the
escape charge and ten-years’ imprisonment upon the first-degree persistent felony
offender charge. Phelps again answered in the affirmative. Hence, we believe
Phelps’s contention was adequately refuted upon the face of the record, and the
circuit court properly denied the RCr 11.42 motion upon this issue without an
Phelps next contends that trial counsel was ineffective for failing to
investigate whether Phelps was mentally competent to enter the guilty plea. To
prevail upon his ineffective assistance of counsel claim, Phelps must prove that
trial counsel’s performance was deficient and but for trial counsel’s error he would
not have pleaded guilty. See Hill, 474 U.S. 52 (1985). The Kentucky Supreme
Court has held that a defendant is competent to enter a guilty plea if he possesses
“sufficient present ability to consult with his lawyer with a reasonable degree of
rational understanding – and . . . has a rational as well as a factual understanding of
the proceedings against him.” Thompson v. Com., 147 S.W.3d 22, 32 (Ky.
2004)(quoting Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824
The record indicates that trial counsel was aware that a question
existed as to Phelps’ competency before entry of the guilty plea. To resolve the
question of Phelps’ competency, trial counsel requested a continuance and then
spoke to Phelps’ prior counsel and a prison case worker. Based upon such
information, trial counsel believed that Phelps was mentally competent to enter the
guilty plea. It appears that trial counsel did not request a mental competency
evaluation or seek a medical opinion concerning Phelps’ competency to enter the
To support his claim that counsel was ineffective for failing to
investigate his competency to enter the guilty plea, Phelps cites to voluminous
copies of medical records. A review of these records reveals that Phelps had been
diagnosed as suffering from several mental conditions including: psychotic
disorder, borderline intellectual function, and impulse control disorder. According
to the medical records, Phelps was routinely prescribed psychotropic medications,
such as trazodone and paxil. A “Psychology Progress Note” dated June 6, 2005,
which is close in time to Phelps’s March 11, 2005, guilty plea, depicted Phelps as
possessing diminished cognitive abilities and as suffering from an impaired mental
state. Therein, the psychologist noted that Phelps gave “frequently conflicting
answers” due to his “limited cognitive abilities.” Also, it was noted that Phelps
possibly “experiences . . . auditory hallucinations.” In an April 27, 2004, medical
record entitled “Psychological Consultation,” it was again observed that Phelps
was experiencing “a decrease with hallucinations since taking this medication.”
Upon a review of the medical records, we think such records reveal
that Phelps at best suffered from limited cognitive ability and at worse suffered
from psychosis with reoccurring hallucinations. In any event, we are convinced
that Phelps raised material factual issues that cannot be refuted upon the face of the
record concerning whether trial counsel was ineffective for failing to investigate
his alleged mental incompetency to enter the guilty plea. As such, we conclude
that Phelps is entitled to an evidentiary hearing upon his RCr 11.42 motion.1
For the foregoing reasons, the Order of the Fayette Circuit Court is
affirmed in part, vacated in part, and this cause is remanded for proceedings not
inconsistent with this opinion.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Alexander De Grand
Assistant Public Advocate
Department of Public Advocacy
Attorney General of Kentucky
Samuel J. Floyd, Jr.
Assistant Attorney General
We also direct the circuit court’s attention to Thompson v. Com., 56 S.W.3d 406 (Ky. 2001).