STOKES (GREGORY A.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: MAY 27, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000788-MR
GREGORY A. STOKES
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 02-CR-00981
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: TAYLOR, CHIEF JUDGE; MOORE AND WINE, JUDGES.
MOORE, JUDGE: Gregory A. Stokes, proceeding pro se, appeals the order of the
Fayette Circuit Court denying his RCr1 11.42 Motion to Vacate, Set Aside, or
Correct his Sentence. After a careful review of the record, we affirm because
Stokes’s claim that he received the ineffective assistance of counsel regarding his
parole eligibility lacks merit, and his remaining claim was not raised in the circuit
court.
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Kentucky Rule of Criminal Procedure.
I. FACTUAL AND PROCEDURAL BACKGROUND
Stokes entered guilty pleas to the charges of first-degree manslaughter
and first-degree robbery. He received a sentence of twenty years of imprisonment
for the manslaughter conviction and ten years of imprisonment for the robbery
conviction. The sentences were ordered to be served consecutively. Additionally,
the circuit court informed Stokes that he was a violent offender and, therefore, he
would have to serve eighty-five percent of his sentence before becoming eligible
for parole.
Stokes filed his pro se RCr 11.42 motion in the circuit court, asserting
as follows: (a) he received the ineffective assistance of trial counsel when counsel
misadvised him regarding parole eligibility and the amount of time he would have
to spend incarcerated; (b) he received the ineffective assistance of counsel when
counsel failed to file a motion to amend the charge from murder to manslaughter
and having Stokes plead guilty to the maximum penalty; (c) his guilty plea was
involuntarily entered because it was induced by coercion from the court and trial
counsel, with multiple threats of the death penalty and references to “lethal
injection” and “electrocution”; (d) his guilty plea did not satisfy the elements of
manslaughter and should have been rejected by the court; and (e) his final
judgment does not state that the victim suffered death or serious physical injury.
Counsel was appointed for Stokes, and Stokes requested two
extensions of time to supplement his pro se RCr 11.42 motion. The circuit court
granted both requests for time extensions. Therefore, Stokes was given a total of
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approximately five months of extensions. Counsel then notified the court that it
did not intend to supplement Stokes’s RCr 11.42 motion.
The circuit court determined that because the allegations could be
resolved from the face of the record, no evidentiary hearing was necessary. The
court then denied Stokes’s RCr 11.42 motion.
Stokes now appeals, contending as follows: (a) he received the
ineffective assistance of trial counsel and his due process rights were violated
when counsel failed to investigate before advising Stokes to enter a guilty plea; and
(b) he received the ineffective assistance of trial counsel and his due process and
equal protection rights were violated when counsel misadvised him regarding his
parole eligibility and the actual amount of time he would spend incarcerated, and
when counsel failed to object to the imposition of a sentence not in accordance
with the plea agreement.
II. STANDARD OF REVIEW
In a motion brought under RCr 11.42, “[t]he movant has the burden of
establishing convincingly that he or she was deprived of some substantial right
which would justify the extraordinary relief provided by [a] post-conviction
proceeding. . . . A reviewing court must always defer to the determination of facts
and witness credibility made by the circuit judge.” Simmons v. Commonwealth,
191 S.W.3d 557, 561 (Ky. 2006), overruled on other grounds by Leonard v.
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Commonwealth, 279 S.W.3d 151, 159 (Ky. 2009). An RCr 11.42 motion is
“limited to issues that were not and could not be raised on direct appeal.” Id.
III. ANALYSIS
A. INEFFECTIVE ASSISTANCE OF COUNSEL/ FAILURE TO
INVESTIGATE
Stokes first alleges that he received the ineffective assistance of trial
counsel and his due process rights were violated when counsel failed to investigate
before advising Stokes to enter a guilty plea. However, Stokes did not raise this
claim in the circuit court proceedings. Therefore, we will not consider it for the
first time on appeal. See Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky.
1976) (“The appellants will not be permitted to feed one can of worms to the trial
judge and another to the appellate court.”).
Moreover, even if we do consider this claim, it lacks merit. Stokes
merely alleges in his appellate brief that “[a] viable defense may have existed had
[trial counsel] executed her duties and pursued an investigation into Stokes’s codefendants accepting a plea agreement that would have made them ‘star witnesses’
against Stokes.” (Emphasis added). He does not provide specifics regarding what
trial counsel would have discovered and what defense he would have had based on
what her investigation would have revealed. We will not grant RCr 11.42 relief
based on mere speculation and conclusory allegations. See Stanford v.
Commonwealth, 854 S.W.2d 742, 745 (Ky. 1993). Therefore, even if this claim
had not been barred from appellate review, it lacks merit.
B. INEFFECTIVE ASSISTANCE OF COUNSEL/ PAROLE ELIGIBILITY
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Stokes next contends that he received the ineffective assistance of trial
counsel and his due process and equal protection rights were violated when: (1)
counsel misadvised him regarding his parole eligibility and the actual amount of
time he would spend incarcerated; and (2) when counsel failed to object to the
imposition of a sentence not in accordance with the plea agreement.
We first note that Stokes did not assert the equal protection part of this
claim, nor the part concerning counsel’s alleged failure to object to the imposition
of a sentence not in accordance with the plea agreement, in the circuit court.
Therefore, we will not consider those parts of this claim on appeal. See Kennedy,
544 S.W.2d at 222.
Stokes asserts that his counsel was ineffective in advising him
regarding his parole eligibility and the amount of time he would have to serve
because: (1) counsel advised him that the plea agreement was for “twenty years,
period”; and (2) counsel advised him that he would only be required to serve
seventeen years before being eligible for parole.
A showing that counsel’s assistance was ineffective in
enabling a defendant to intelligently weigh his legal
alternatives in deciding to plead guilty has two
components: (1) that counsel made errors so serious that
counsel’s performance fell outside the wide range of
professionally competent assistance; and (2) that the
deficient performance 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
not have pleaded guilty, but would have insisted on going
to trial.
Bronk v. Commonwealth, 58 S.W.3d 482, 486-87 (Ky. 2001).
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During his plea colloquy, Stokes informed the court that his counsel
had spoken with him about the plea deal, but that he did not understand all of it.
The court told him it was important for him to understand what he was facing, and
if he did not want to proceed with the guilty plea, he should not do so. Stokes told
the court that defense counsel had advised him of the penalties for the various
charges against him, if he was convicted of those charges. The court informed
Stokes that if he was convicted of the charge of capital murder, he could be
sentenced to death. Stokes acknowledged he understood that was the risk he
would take if he went to trial. The court then noted that in its plea offer, the
Commonwealth had recommended that the charge be amended from capital
murder to first-degree manslaughter, and Stokes acknowledged that he understood.
The court directed defense counsel to explain to Stokes on the record
what the possible penalties were for first-degree manslaughter. Defense counsel
told Stokes that manslaughter in the first degree requires an “intentional state of
mind, as opposed to the wanton state of mind.” Counsel advised Stokes on the
record that first-degree manslaughter carries a penalty of ten to twenty years of
imprisonment and that the Commonwealth was recommending the maximum.
Stokes acknowledged he understood. Counsel also advised him on the record that
his robbery charge carried a penalty of ten to twenty years of imprisonment.
Defense counsel then informed Stokes that both convictions qualified him as a
violent offender, requiring him to serve eighty-five percent of his time. Counsel
asked Stokes if he understood all of that, to which he responded affirmatively.
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The court told Stokes that he needed to decide whether pleading guilty
was in his best interest. The court directed defense counsel to tell Stokes, on the
record, what penalties he may face if he decided to proceed with the trial. Counsel
told Stokes that for a murder conviction with the aggravated circumstance of firstdegree robbery, he might be given the death penalty, or he might be sentenced to
life without parole, life without the possibility of parole for twenty-five years, life
imprisonment, or imprisonment for a period of twenty to fifty years. Defense
counsel then informed Stokes on the record as follows: “[W]ith a manslaughter
conviction, which is what they have recommended for you now, there is no
possibility that you’re gonna get the death penalty. We’re talking about twenty
years, period. Twenty years under the violent offender category.”
The court then asked Stokes what he wanted to do. Stokes asked:
“And it’s twenty years no matter what?” The court responded: “Essentially yes . .
. . Under the violent offender statute, you have to serve eighty-five percent of it
before you’re eligible for parole.” Defense counsel added: “We talked about that,
it’s seventeen years, and your two and a half years that you’ve already spent in jail
would be credited to that.” The court stated:
And, Mr. Stokes, the court has the authority to run these
two sentences consecutive, which is one after the other,
for a total of thirty, or more, within the penalty range, but
if [the court] gave you more, you wouldn’t have to take
it. You could withdraw your guilty plea and go on to
trial. But do you understand that it’s the court’s
discretion how to run these sentences?
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Stokes responded that he did understand. The court reminded Stokes that trial was
scheduled to begin the following day. Stokes then entered his guilty plea.
As previously noted, Stokes asserts on appeal that his counsel
rendered ineffective assistance by advising him regarding his parole eligibility and
the amount of time he would have to serve because: (1) counsel advised him that
the plea agreement was for “twenty years, period”; and (2) counsel advised him
that he would be required to serve only seventeen years before being eligible for
parole.
Although counsel advised Stokes on the record that his sentence
would be “twenty years, period,” it is clear from our review of the video recorded
plea colloquy that counsel was referring only to Stokes’s possible manslaughter
conviction at that time. As we set forth, supra, the context of what defense counsel
was saying at the time she made this statement was as follows: “[W]ith a
manslaughter conviction, which is what they have recommended for you now,
there is no possibility that you’re gonna get the death penalty. We’re talking about
twenty years, period. Twenty years under the violent offender category.”
Therefore, it is obvious that counsel was only referring to a possible manslaughter
conviction when she said the penalty would be “twenty years, period.” Therefore,
this part of Stokes’s claim that counsel performed deficiently lacks merit.
Finally, as for Stokes’s claim that counsel was ineffective when
counsel advised him that he would be required to serve seventeen years before
being eligible for parole, upon review of the plea colloquy, counsel’s full statement
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concerning the seventeen years Stokes would have to serve was as follows: “We
talked about that, it’s seventeen years, and your two and a half years that you’ve
already spent in jail would be credited to that.” Therefore, although it may not
have been clear that defense counsel was referring only to the possible
manslaughter conviction -- and not to the total sentence -- which would have also
included a sentence for first-degree robbery, the court immediately clarified what
defense counsel had said by stating:
And, Mr. Stokes, the court has the authority to run these
two sentences consecutive, which is one after the other,
for a total of thirty, or more, within the penalty range, but
if [the court] gave you more, you wouldn’t have to take
it. You could withdraw your guilty plea and go on to
trial.
Therefore, even if Stokes could establish that counsel performed deficiently when
she stated that he would have to serve seventeen years, he cannot show that but for
counsel’s deficient performance, he would not have entered a guilty plea and he
would have proceeded to trial, as required to establish his ineffective assistance of
counsel claim. See Bronk, 58 S.W.3d at 486-87. Stokes cannot show that he
would have proceeded to trial because immediately after counsel made her
statement, the court clarified that if it chose to run the two sentences consecutively,
Stokes would face thirty years or more for both charges. Stokes acknowledged
that he understood this. Consequently, Stokes’s ineffective assistance of counsel
claim lacks merit.
Accordingly, the order of the Fayette Circuit Court is affirmed.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gregory Stokes
Pro se
Burgin, Kentucky
Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
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