HARDIN (COREY DEMETRIS) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: NOVEMBER 21, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
COREY DEMETRIUS HARDIN
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BARRY WILLETT, JUDGE
ACTION NO. 97-CR-002390
COMMONWEALTH OF KENTUCKY
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BEFORE: MOORE AND THOMPSON, JUDGES; HENRY,1 SENIOR JUDGE.
THOMPSON, JUDGE: Corey Demetrius Hardin appeals from an order of the
Jefferson 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.
In September 1997, Hardin was indicted for first-degree robbery and
first-degree assault. The two-count indictment stemmed from an incident wherein
Hardin entered the residence of Darrell Taylor and demanded money. When
Taylor refused, the two men began struggling before Taylor escaped through a
bathroom window. Hardin then fired several shots at Taylor, striking him once in
the shoulder. Subsequently, after Taylor identified him, Hardin was arrested for
robbery and assault.
Following his arrest, Hardin’s two attorneys successfully negotiated a
plea agreement with the Commonwealth. On May 26, 1998, Hardin and his
attorneys appeared in court for the acceptance of the guilty plea. At the start of the
hearing, Hardin’s attorneys asked the court to postpone acceptance of the guilty
plea for ninety days. His attorneys stated that the delay would permit them to
resolve Hardin’s federal charges in an advantageous fashion before the entry of his
Having previously granted two continuances, the trial court refused
the request and stated that it was ready to accept the plea or to set the case for trial.
After a brief recess, in anticipation of trial, Hardin’s attorneys and the prosecutor
litigated two matters, an evidentiary issue and an alleged conflict of interest. After
these matters were resolved, Hardin informed the trial court that he would plead
guilty if final sentencing was postponed until the resolution of his federal charges.
After this request was denied, the case was recessed to the following morning.
When court resumed, Hardin entered a guilty plea to the amended
charge of second-degree assault and the robbery charge was dismissed. Several
weeks later, the trial court sentenced Hardin to ten-years’ imprisonment.
Thereafter, on April 21, 2000, Hardin filed a motion for post-conviction relief
pursuant to RCr 11.42, alleging ineffective assistance of counsel. After reviewing
the motion, the trial court vacated Hardin’s conviction on the basis that Hardin’s
attorneys were prevented from providing effective assistance of counsel due to the
predecessor judge’s combative demeanor toward Hardin’s attorneys.
After the Commonwealth appealed, in Case No. 2001-CA-000868MR, this Court reversed the trial court after concluding that the predecessor
judge’s demeanor did not render Hardin’s attorneys ineffective. Further, we stated,
in pertinent part, the following:
In summary, Hardin was originally charged with two
violent felonies and was facing a possible sentence of
forty-years’ imprisonment if convicted. After numerous
jury trial dates had been rescheduled, Hardin appeared in
court on May 26, 1998, represented by two attorneys
whom he retained, and expressed a desire to plead guilty.
The Commonwealth’s plea offer allowed him to plead
guilty to only one amended felony charge and serve a
term of ten-years’ imprisonment. We believe that the
evidence does not support the successor trial court’s
decision that Hardin was forced to plead guilty due to the
predecessor judge’s harsh demeanor. Hardin has failed
to demonstrate how his guilty plea was unknowing,
involuntary or unintelligent. Consequently, the successor
trial court erred in vacating his conviction.
On remand, after conducting an extensive evidentiary hearing, the trial court issued
an order denying Hardin’s motion for post-conviction relief. The trial court found
that Hardin’s guilty plea was intelligently and voluntarily made. This appeal
Hardin’s sole contention is that his guilty plea was not knowingly,
voluntarily, and intelligently made as required by the United States Constitution.
Contending that the trial court’s demeaning posture toward his two attorneys
caused him to lose confidence in them, Hardin argues that he was forced to plead
guilty because he feared that his attorneys could not effectively represent him. We
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).
A reviewing court must focus on the totality of the evidence before
the judge when assessing the performance of defense counsel and must presume
that counsel rendered effective assistance of counsel. Haight v. Commonwealth,
41 S.W.3d 436, 441-42 (Ky. 2001). 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). Finally, in reviewing
ineffective assistance claims, the solemn 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).
Hardin's claim that his guilty plea was not knowingly, voluntarily, and
intelligently made is refuted by the record. During his evidentiary hearing, Hardin
testified that he understood that he could have chosen a jury trial rather than accept
the plea bargain. He further testified that he answered truthfully during his plea
colloquy with the trial court. Additionally, after acknowledging that he had
counseled and observed Hardin throughout the criminal proceedings, one of
Hardin’s defense attorneys testified that his plea was made voluntarily, knowingly,
and intelligently. Accordingly, we conclude that Hardin’s guilty plea was
In addition to testimony, Hardin’s two charged crimes, robbery and
burglary, both in the first degree, carried the potential of a forty-year sentence. By
pleading guilty, Hardin avoided the possibility of a forty-year sentence and
accepted a substantially reduced sentence, ten years. Although Hardin contends
that he would have rejected the plea bargain absent counsel error, the evidence in
the record, particularly his attorney’s testimony that the prosecution’s physical
evidence was strong and contradicted Hardin’s statements, was sufficient to
support a conviction and made the prospect of a forty-year sentence a harsh reality.
Considering these facts, even if counsel had made serious errors,
Hardin has failed to prove that his counsel’s performance prejudiced his case.
Stated differently, even if we assume deficient performance, there was no
reasonable probability that Hardin would have rejected his plea and insisted on
going to trial.
For the foregoing reasons, the order of the Jefferson Circuit Court
denying Hardin’s motion for post-conviction relief is affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Brian Thomas Ruff
Assistant Public Advocate
Department of Public Advocacy
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General