JOWERS (MICHAEL) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: SEPTEMBER 26, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
MODIFIED: OCTOBER 17, 2008; 10:00 A.M.
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
ACTION NO. 01-CR-002928
COMMONWEALTH OF KENTUCKY
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BEFORE: ACREE AND CAPERTON, JUDGES; ROSENBLUM,1 SPECIAL
ACREE, JUDGE: Michael Jowers appeals from a ruling of the Jefferson Circuit
Court denying his requests for post-conviction relief pursuant to Kentucky Rule of
Retired Judge Paul W. Rosenblum sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution.
Criminal Procedure (RCr) 11.42 and Kentucky Civil Rule (CR) 59.05. Jowers
filed a motion alleging that his appointed attorney failed to convey to him a tenyear plea offer from the Commonwealth. After an evidentiary hearing, the trial
court made a factual finding that there was never a ten-year plea offer. We affirm.
Jowers was charged in juvenile court with attempted murder and firstdegree sodomy. The case was transferred to the circuit court, pursuant to
Kentucky Revised Statute (KRS) 635.020(4), and Jowers was subsequently
indicted on the offenses charged in the juvenile court.
He was initially represented by appointed counsel, Michael Morris,
who attempted unsuccessfully to negotiate a ten-year plea bargain on Jowers’
behalf. Almost nine months after the indictment was returned, Neva-Marie Polley
substituted as counsel on Jowers’ behalf. Jowers then pleaded guilty to the charges
in exchange for a recommended sentence of fifteen years on each count, to run
concurrently. He was sentenced in accordance with the plea bargain, but later filed
an RCr 11.42 motion which the trial court denied after an evidentiary hearing. His
subsequent CR 59.05 motion to alter, amend or vacate was also denied. This
In order to prevail on a claim of ineffective assistance, Jowers must
show that counsel made errors outside the professional norms for legal
representation and, further, that he was prejudiced by those errors. Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Hill v.
Lockhart, 106 S.Ct. 366, 474 U.S. 52, 88 L.Ed.2d 203 (1985), the United States
Supreme Court held that, when a defendant had entered a guilty plea, the prejudice
requirement of Strickland could only be satisfied by a showing that counsel’s
ineffective assistance affected the outcome of the plea bargaining process. “In
other words, in order to satisfy the “prejudice” requirement, the defendant must
show that there is a reasonable probability that, but for counsel's errors, he would
not have pleaded guilty and would have insisted on going to trial.” Hill, 106 S.Ct.
at 59. This Court has further recognized that a valid guilty plea must be intelligent,
knowing, and voluntary. Centers v. Commonwealth, 799 S.W.2d 51, 54 (Ky.App.
1990). Jowers contends he suffered prejudice when Morris failed to convey the
ten-year offer because he eventually pleaded guilty and received a longer sentence.
Strickland at 466 U.S. 687. We disagree.
The sole issue before the trial court below was whether the
Commonwealth ever made a ten-year plea offer to Morris which he then failed to
convey to his client. The trial court conducted a hearing to determine, as a matter
of fact, whether such an offer was ever made by the Commonwealth. “When the
trial court conducts an evidentiary hearing, the reviewing court must defer to the
determinations of fact and witness credibility made by the trial judge.” Sanborn v.
Commonwealth, 975 S.W.2d 905, 909 (Ky. 1998).
The trial court was presented with conflicting evidence regarding the
existence of a ten-year plea offer. At the time of the evidentiary hearing, Morris
had been a practicing attorney for twenty-seven years with his primary area of
practice being criminal defense. Morris testified that he conducted plea
negotiations on his client’s behalf in juvenile court. He stated that, to the best of
his recollection, the best plea offered by the Commonwealth was the fifteen year
sentence ultimately accepted by Jowers. Morris told the trial court that the
Commonwealth initially offered eighteen years and that he did not recall ever
receiving a ten-year offer.
Mike Healey, a paralegal with the public defender’s office, testified
about a research request he received in conjunction with the Jowers case. The
form requesting his assistance had originated with Morris and indicated that the
Commonwealth had previously offered ten years in the presence of witnesses and
had never withdrawn the offer. At the time of the research request, the
Commonwealth was offering eighteen years. Morris sought legal authority
supporting Jowers’ right to compel the Commonwealth to make a ten-year
recommendation in exchange for a guilty plea. Healey prepared a research memo
for Morris. However, Healey also acknowledged that he did not see Morris
prepare the research request, nor did Morris personally deliver it to Healey.
Further, Healey did not recall discussing the research request with Morris.
Although he could not recall making the request, Morris did not deny
that he had done so. After examining the document, Morris testified that he might
have dictated the research request and the premise of a definite ten-year offer could
have been the result of a misunderstanding between himself and the person
preparing the document.
Barbara Bingham, an investigator for the Department of Public
Advocacy, interviewed Morris in preparation for the RCr 11.42 hearing. She
stated that Morris told her the Commonwealth had offered ten years in exchange
for Jowers’ guilty plea. However, she acknowledged that Morris did not have
access to the case file at the time of their interview and he was not expecting her
Jowers also testified on his own behalf at the RCr 11.42 hearing. He
told the trial court that when he discussed the case with his attorney, Morris told
him that he might be able to negotiate a ten-year plea offer. Jowers stated that he
would have accepted such an offer, but Morris never told him the Commonwealth
had offered ten years.
The Commonwealth called Jim Miller, who served as a juvenile
prosecutor for about fifteen years. Miller testified that he thought the offenses
were heinous. He stated that his initial offer was eighteen years, but he did reduce
the offer to fifteen years at a later court hearing. Although he was testifying from
the court file, Miller was adamant that he had never made a ten-year offer.
The trial court noted that Jowers was facing a penalty range of ten to
twenty years on each charge. After reviewing the record leading up to Jowers’
guilty plea and the evidence at the RCr 11.42 hearing, the trial court found a lack
of sufficiently credible evidence supporting the existence of a ten-year plea offer.
Consequently, Morris’s representation was not deemed ineffective.
Jowers then filed a motion to alter, amend, or vacate the order denying
RCr 11.42 relief, pursuant to CR 59.05, supported by an affidavit from Patti
Echsner, Morris’ supervisor at the time of his representation of Jowers. Echsner
acknowledged approving the research request to Healey, as required by office
procedure. Further, she stated that she recalled Morris being upset with the
Commonwealth due to “some change in the original offer.” While the trial court
again denied the request for relief, it did find that the evidence supported Morris’s
belief in a ten-year offer, but not the existence of the offer itself.
Indeed, Mr. Miller, the prosecutor on the case, adamantly
stated that no ten year offer was made. This complete
denial by the authority in charge of making such an offer
when combined with the severity of the charges and the
heinous nature of the offense are sufficient to persuade
the Court that the offer was not made[.]
(Trial court’s order denying motion to reconsider denial of RCr 11.42 relief,
entered August 7, 2007).
When dealing with a trial court’s factual findings, the standard of
review on appeal is whether those findings are clearly erroneous. CR 52.01;
Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky. 2001). The evidence which
most strongly supports the existence of a ten-year offer is the research request
generated at Morris’ behest. On the other hand, the prosecutor in charge of the
case unequivocally denies making such an offer. “The trial court had a right to
resolve the credibility issue against appellant[.]” McQueen v. Commonwealth, 721
S.W.2d 694, 698 (Ky. 1986). Even if Morris believed there was a ten-year offer,
his failure to convey that information to Jowers could not be the cause of prejudice
where no such offer existed. Jowers thus fails to meet the prejudice requirement
set forth in Strickland and, consequently, the trial court correctly denied his
requests for post-conviction relief.
For the foregoing reasons, the judgment of the Jefferson Circuit Court
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Assistant Public Advocate
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General