THORNTON (ALEX C.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: DECEMBER 11, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001931-MR
ALEX C. THORNTON, JR.
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 04-CR-001647
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, KELLER, AND LAMBERT, JUDGES.
LAMBERT, JUDGE: Alex C. Thornton, Jr., appeals pro se from the Jefferson
Circuit Court’s denial of his motion to vacate or set aside his sentence pursuant to
Kentucky Rules of Criminal Procedure (RCr) 11.42. After careful review, we
affirm.
Thornton was indicted in the Jefferson Circuit Court for three counts
of kidnapping, burglary in the first degree, assault in the first degree, attempted
rape in the first degree and being a persistent felony offender (based upon prior
felony convictions for burglary and rape). On June 9, 2005, prior to trial, the
Commonwealth filed a motion to introduce Kentucky Rules of Evidence (KRE)
404(b) evidence of Thornton’s prior convictions. On July 19, 2005, Thornton
moved to withdraw his plea of not guilty and enter a plea of guilty. Thornton’s
plea agreement reduced the charges from Class A and B felony kidnapping charges
to Class D felonies but kept the remaining charges intact for a cumulative sentence
of thirty years’ imprisonment.
On April 10, 2006, Thornton filed an RCr 11.42 motion to vacate the
judgment alleging that counsel was ineffective by misleading him as to the
availability of the grand jury tapes, whether the prosecutor could use evidence of
other crimes, parole eligibility, and by instructing him that he should otherwise
plead guilty because the court would allow the prosecutor to bend the rules. In
summarily denying the motion, the trial court noted that it reviewed the plea
colloquy to ascertain if the plea was voluntary, and Thornton was specifically
asked during the colloquy whether any threats or promises had been made to him
prior to his plea. Thornton answered in the negative. On appeal in case number
2006-CA-1768, this Court affirmed in part but vacated and remanded in part for an
evidentiary hearing on the parole eligibility issue.
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On July 28, 2008, the Jefferson Circuit Court conducted an
evidentiary hearing on the motion whereby it heard testimony from Thornton, his
parents, and trial counsel. At the hearing, trial counsel testified that he was aware
of the 85% parole eligibility for violent offenders and that he had never advised
Thornton or his parents that Thornton would go before the parole board in eight
years. Trial counsel also testified that Thornton was looking at a potential sentence
of life imprisonment. Counsel advised Thornton that he would be eligible for
parole after twenty years if he accepted the thirty year plea offer. Counsel further
testified that he had been an attorney for over thirty years, had represented criminal
defendants for the majority of his career, and was familiar with the statute
requiring criminal defendants found guilty of PFO in the first degree to serve 85%
of their sentences before becoming eligible for parole.
Thornton testified that on the day he entered his guilty plea, he was
told that he was facing seventy-five years to life, but that he would go before the
parole board in eight years if he took the plea offer. Thornton’s mother testified
similarly but she testified that the parole eligibility was not mentioned. Thornton’s
father testified that he was advised that Thornton was facing seventy-five years to
life and also made no mention of any parole eligibility discussions.
After the evidentiary hearing, the trial court then denied Thornton’s
motion by order dated September 17, 2008, finding that he failed to satisfy both the
first and second prongs of the test for ineffective assistance of counsel under
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Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
This appeal now follows.
On appeal we review the trial court's denial of an RCr 11.42 motion
for an abuse of discretion. “The test for abuse of discretion is whether the trial
judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citing 5
Am.Jur.2d Appellate Review § 695 (1995)).
On appeal, Thornton argues the following: (1) that his trial counsel
failed to inform him that he would not be eligible for parole until he served 85% of
his sentence, and (2) that counsel failed to discuss the possibility of being
convicted of a lesser offense. This Court remanded case number 2006-CA-1768
for an evidentiary hearing only on the question of whether counsel’s advice
relative to parole eligibility constituted ineffective assistance of counsel. Review
of the second question is therefore precluded by the law of the case as this Court
affirmed on that ground in 2006-CA-1768. In fact, Thornton did not even present
that question to the lower court on remand. It is improper to raise one issue to the
lower court and another to the appellate court. Kennedy v. Commonwealth, 544
S.W.2d 219, 222 (Ky. 1979).
Thornton argues that had his trial counsel informed him that he would
have to serve 85% of his sentence before becoming eligible for parole, he would
have insisted on going to trial and would not have pleaded guilty. Thus, Thornton
argues that under Strickland, as modified by Hill v. Lockhart, 474 U.S. 52, 106
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S.Ct. 366, 88 L.Ed.2d 203 (1985), he received ineffective assistance of counsel.
To constitute ineffective assistance of counsel in cases where a guilty plea was
entered, counsel must have made errors so serious that his performance fell outside
the wide range of professional competent assistance, and the deficient performance
must have so seriously affected the outcome of the plea process that, but for the
errors of counsel, there is a reasonable probability that the defendant would have
not pled guilty. Id. at 57-58.
A careful review of the record indicates that the trial court did not
abuse its discretion in holding that Thornton did not receive ineffective assistance
of counsel. The trial court rendered its decision after hearing testimony from
Thornton, Thornton’s parents, and Thornton’s trial counsel. There was nothing to
convince the court that Thornton’s trial counsel acted outside the wide range of
reasonable assistance as prescribed by the Kentucky courts and the United States
Supreme Court. The court found no credible evidence that defense counsel
misadvised Thornton that he would be eligible for parole after serving only twenty
percent of his sentence, or after only serving eight years or that Thornton was not
informed he would have to serve 85% of his sentence.
“When the trial court conducts an evidentiary hearing, a 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)
(overruled on other grounds by Leonard v. Commonwealth., 279 S.W.3d 151 (Ky.
2009)). The trial court heard from four witnesses in this case: Thornton, his
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mother, father, and his trial counsel. The only witness who testified that trial
counsel misinformed Thornton about parole was Thornton himself. The trial court
had the right to believe the testimony of the other witnesses over Thornton and to
weigh credibility.
Furthermore, the trial court found, and we agree, this case to be
directly analogous to the facts in Turner v. Commonwealth, 647 S.W.2d 500 (Ky.
App. 1982). There, the defendant was not informed that his PFO I status made him
ineligible for parole for ten years. He filed an RCr 11.42 motion alleging that his
guilty plea was not knowing and voluntary because he did not know he would be
ineligible for parole for ten years. The trial court denied his motion, citing Boykin
v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and stating
“Boykin does not mandate that a defendant must be informed of a ‘right’ to
parole.” Turner, 647 S.W.2d at 500. This Court further reasoned, “[w]e do not
feel that the failure of a trial court to inform a defendant before accepting a guilty
plea of mandatory service of sentence before eligibility for parole is a [. . .] ground
to vacate judgment under RCr 11.42.” Id. at 502.
In the case at bar, there was no requirement for trial counsel to even
advise Thornton about parole eligibility. Further, there was no evidence before the
trial court that counsel misinformed Thornton about being eligible for parole after
eight years, and instead it appears that counsel told Thornton he would have to
serve 85% of his sentence.
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We will not disturb the trial court’s findings on appeal, absent an
abuse of discretion. Finding none, we affirm. Accordingly, the September 17,
2008, order of the Jefferson Circuit Court denying Thornton’s RCr 11.42 motion to
vacate or set aside his sentence is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Alex C. Thornton, Jr., Pro Se
West Liberty, Kentucky
Jack Conway
Attorney General
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
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