Robert E. Curry v. Commonwealth of Kentucky

RENDERED: JANUARY 27, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1407-MR
ROBERT CURRY APPELLANT
APPEAL FROM HARLAN CIRCUIT COURT
v. HONORABLE KENT HENDRICKSON, JUDGE
ACTION NO. 13-CR-00246
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ECKERLE, KAREM, AND MCNEILL, JUDGES.
KAREM, JUDGE: Robert Curry appeals from the Harlan Circuit Court’s
supplemental order, entered after an evidentiary hearing, denying his motion to
vacate sentence pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42.
Curry contends that his trial counsel was ineffective for misinforming him about
his parole eligibility under a plea offer and for recommending that he go to trial.
Upon review, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2014, a jury found Curry guilty of intentional murder and the trial
court imposed a sentence of twenty-five years in accordance with the jury’s
recommendation. Other charges against Curry of disorderly conduct, menacing,
resisting arrest, and being a persistent felony offender in the second degree (PFO
II) were dismissed.
The Kentucky Supreme Court affirmed Curry’s murder conviction on
direct appeal. Curry v. Commonwealth, No. 2014-SC-000310-MR, 2016 WL
669364 (Ky. Feb. 18, 2016). Its opinion set forth the underlying facts of the case:
In September 2012, John Anderson was homeless
and sleeping in a pickup truck parked near Penix’s house.
Penix, whom Anderson had known and sometimes lived
with, let Anderson use the bathroom in his house.
Sometime during the evening of September 5, 2012,
Anderson went to Penix’s house to bathe. While
Anderson was there, Curry arrived, and Curry and Penix
began drinking. When the two became intoxicated,
Anderson left and went to the truck to sleep.
Early in the morning of September 6, 2012,
Anderson returned to Penix’s house and saw Penix, who
was covered in blood, lying on the floor. Anderson felt
Penix’s neck to see if he was alive and, when he
determined that Penix was not, called 911. While he was
on the phone with the 911 operator, Anderson saw Curry
lying on the floor near a couch. He checked Curry,
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determined that Curry was alive, and went outside to wait
for emergency personnel to arrive.
When police officers arrived, Curry, who was
initially difficult to arouse and was later determined to be
intoxicated, was covered in blood. The officers arrested
Curry and transported him to the state police post for
questioning. The officers observed that Curry’s hands
were bruised and swollen and, after the medical examiner
determined that Penix had been beaten to death, a grand
jury indicted Curry on multiple counts, the only pertinent
one of which is intentional murder.
Curry’s defense theory at trial was that someone
else had beaten Penix to death, and he pointed to
Anderson and two other men as possible alternative
perpetrators. The jury did not believe his alternative
perpetrator theory and convicted Curry of intentional
murder.
Id. at *1.
After the conviction was affirmed, Curry filed a pro se motion
pursuant to RCr 11.42, claiming ineffective assistance of counsel. The trial court
denied the motion without conducting an evidentiary hearing.
Curry appealed the denial of the motion to this Court, which
remanded the case for a hearing solely on his allegation that, prior to trial, he
rejected an advantageous plea offer on his attorney’s assurance that he had an
excellent defense. Curry v. Commonwealth, No. 2018-CA-001310-MR, 2020 WL
4917646, at *2 (Ky. App. Aug. 21, 2020), discretionary review denied (Apr. 20,
2021). Of particular concern to this Court was the inaccurate information Curry
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apparently received regarding his parole eligibility under the plea offer as admitted
to by his trial counsel. Under the terms of that offer, the Commonwealth, also
misinterpreting the statute, agreed to recommend a sentence of seven years,
enhanced to ten years by the PFO II charge, in exchange for a plea of guilt to
second-degree manslaughter. Curry claimed his counsel advised him to reject the
offer because he would have to serve 85 percent of the sentence before becoming
eligible for parole. However, as this Court pointed out, a correct reading of the
statute would make Curry eligible for parole after serving only 20 percent of the
ten-year sentence because manslaughter in the second degree is a Class C felony,
Kentucky Revised Statutes (KRS) 507.040(2), which is not subject to the delayed
parole eligibility date for violent offenses under KRS 439.3401(4).
On remand from this Court, the trial court conducted the evidentiary
hearing via Zoom, at which Curry’s trial counsel and Curry himself testified.
Curry also entered into evidence a recorded portion of the hearing held shortly
before his trial, at which the plea offer was discussed. We set forth the pertinent
sections of that exchange:
Defense counsel: The reason I hadn’t filed a motion [for
a continuance] is it looked like there was some light at
the end of the tunnel in regards to a deal. I’d made an
offer and the Commonwealth rejected it. I didn’t know
they’d rejected it until yesterday.
Commonwealth: We made an offer, you counteroffered,
. . . I got your counteroffer Monday and I told you on
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Wednesday that I rejected your counteroffer. But our
offer is still out there.
Judge: Well, let me ask you something about this, if you
don’t object to talking to me about this, what was your
last offer?
...
Commonwealth: It’s to amend the murder charges to . .
. manslaughter second, and seven years enhanced by the
PFO to ten years to serve. That’s the bottom line. The
end.
Judge: So your problem is that it goes from
manslaughter second to an 85 percent deal, is that what
your problem with that is?
Commonwealth: He’s suggesting that it be negligent
homicide.
...
Judge: Which would be a Class D felony.
Defense Counsel: Enhance it to Class C because of PFO
II, give him three years for a few other little, menacing
and resisting or something, to run concurrent, with the
five years for Class D, still enhance it to a C, give him
credit, he’s already been incarcerated in one form or
another for a year and a half. He’d have the PFO II
status, he’d be convicted of another felony, he’d still be
in jail, the only difference would be five years instead of
ten. With the super amount of evidence, with the lack of
evidence. This is almost totally a circumstantial case
they are going to present here in a week and a half.
...
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Judge: So, you have 85 percent on either one of them,
the ten or the five. If it was a D and taken to a C by PFO
he’d still have to serve 85 percent, is that correct?
Commonwealth: That’s correct.
Judge: Let’s make sure. Somebody from Probation and
Parole come over here for just a second . . . If you have a
Class D felony that is PFO, and a person gets let’s say
five years on a Class D that is PFO, which makes it a C,
is that an 85 percent serve out?
Probation and Parole: I’m pretty sure it is.
Defense Counsel: It’s a PFO II, though, your honor.
Probation and Parole: That I’d have to look.
At the evidentiary hearing, Curry’s defense counsel admitted that he
misunderstood the parole eligibility issue and misinformed Curry he would have to
serve 85 percent of the sentence:
11.42 Counsel: How did you convey the plea offer to
Mr. Curry?
Defense counsel: I conveyed the plea offer wrong
because I misinterpreted PFO II statute, . . . Judge was
stating about the 85 percent, was it 85 percent serve out
time before eligibility for parole, and Mr. Boggs [the
prosecutor] apparently was under the same impression
because he confirmed with a nod, yes it’s 85 percent, so
based on my conversation with the Commonwealth and
my own misinterpretation of the statute, I’ve
misinterpreted that statute wrong and . . . told Mr. Curry
that it was 10 years and he had to serve 85 percent of that
which would be 8.5 years. That’s what I told Mr. Curry.
Upon further questioning defense counsel stated:
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I totally misread that statute. I didn’t understand it. It
should have been a 20 percent serve out time which
would have been two years . . . before he’d been eligible
for parole had he taken the deal, and at the time we were
standing there on February 6, 2014, he would have only
had to serve six more months to have been eligible for
parole. So not only did I not convey . . . what should
have been the correct plea deal but had I understood that
he only had six months to go to be eligible for parole,
given the risks of taking it to trial, I would have strongly
urged him to have taken that deal. I misinterpreted the
deal. I didn’t understand. I misinterpreted the PFO
statute to be 85 percent when in reality it was 20 percent.
Curry testified about his recollections of the plea offer:
11.42 Counsel: When [defense counsel] first presented
you the plea offer, what . . . was the plea offer for?
Curry: They was saying at 85 percent, eight-and-a-half
years, ten years. And . . . I would have took that too. I
did want to take that, but somehow or another, I, I got . . .
talked out of that.
11.42 Counsel: What do you mean by that?
Curry: Well, . . . he explained to me that . . . he was
humbled about the situation . . . he felt comfortable that,
you know, and competent that we could win this in trial,
so I took his word for that, you know. . . . I said well,
may I see my motion discovery . . . which I’ve never laid
eyes on to this day, and, you know, and I wanted to see
what the evidence was presented on me before I even
went further with this, but, you know, he, he told me he
had everything under control, so I took his word for that
and, and ‘cause you know he, he’s an expert, I’m, I’m
not. . . . I don’t know nothing about law. I just . . . paid
him to, to represent me.
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On cross-examination by the Commonwealth, Curry confirmed he
would have accepted the plea deal with 20 percent parole eligibility. He was then
asked, “You would have pled guilty and stated you in fact did kill Mr. Penix on
that day? You would have said that in court?” He replied that he would have
taken the 20 percent deal. The Commonwealth attorney pressed Mr. Curry further,
“Were you prepared to say in open court that you did in fact kill Mr. Penix?” He
replied, “I don’t remember that night. I can’t come out and tell you the facts that I
killed somebody.”
Following this evidentiary hearing the trial court found that Curry had
in fact received ineffective advice from his attorney regarding parole eligibility
under the Commonwealth’s offer. The trial court further found, however, that
Curry had not succeeded in showing that he was prejudiced by his counsel’s
deficient performance because he testified that he was not prepared to plead guilty
to killing the victim. The trial court concluded: “Acceptance of a plea offer
requires an admission of guilt. Because Curry was not, and is not, willing to admit
guilt, the Court finds that Curry failed to show there was a reasonable probability
he would have accepted the Commonwealth’s plea offer.”
The trial court entered a supplemental order consistent with its
findings, again denying Curry’s RCr 11.42 motion, and this appeal by Curry
followed. Further facts will be set forth below as necessary.
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II. STANDARD OF REVIEW
In order to prove ineffective assistance of counsel, a defendant must
show: (1) that counsel’s representation was deficient in that it fell below an
objective standard of reasonableness, measured against prevailing professional
norms; and (2) that he was prejudiced by counsel’s deficient performance.
Strickland v. Washington, 466 U.S. 668, 690-92, 104 S. Ct. 2052, 2064-67, 80 L.
Ed. 2d 674 (1984); Gall v. Commonwealth, 702 S.W.2d 37, 39 (Ky. 1985). “[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[.]” Skaggs v. Commonwealth, 488 S.W.3d 10, 14 (Ky.
App. 2016). “Both Strickland prongs must be met before relief may be granted.”
Prescott v. Commonwealth, 572 S.W.3d 913, 920 (Ky. App. 2019).
In Missouri v. Frye, 566 U.S. 134, 132 S. Ct. 1399, 182 L. Ed. 2d 379(2012), the United States Supreme Court held that the Sixth Amendment right to
counsel extends to the plea-bargaining process. Lafler v. Cooper, 566 U.S. 156,
162, 132 S. Ct. 1376, 1384, 182 L. Ed. 2d 398 (2012). When, as in this case, a
defendant alleges that ineffective assistance of counsel caused him to reject a plea
offer and subsequently receive a more severe sentence at trial, a defendant meets
the first prong of Strickland by demonstrating that “counsel’s representation fell
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below an objective standard of reasonableness” in advising him to reject the offer.
Id. at 163, 132 S. Ct at 1384.
Under the second, “prejudice” prong, the defendant must show that,
“but for the ineffective advice of counsel there is a reasonable probability that the
plea offer would have been presented to the court (i.e., that the defendant would
have accepted the plea and the prosecution would not have withdrawn it in light of
intervening circumstances), that the court would have accepted its terms, and that
the conviction or sentence, or both, under the offer’s terms would have been less
severe than under the judgment and sentence that in fact were imposed.” Id. at
164, 132 S. Ct. at 1385.
When a trial court conducts an evidentiary hearing regarding the claim
of ineffective assistance of counsel, RCr 11.42(6) requires the court
“make findings determinative of the material issues of fact and enter a final order
accordingly.” Cawl v. Commonwealth, 423 S.W.3d 214, 216 (Ky. 2014). “[W]hen
reviewing a trial court’s findings of fact following an RCr 11.42 evidentiary
hearing, an appellate court utilizes the clearly erroneous standard set forth in
Kentucky Rules of Civil Procedure (CR) 52.01. Findings of fact are not clearly
erroneous if supported by substantial evidence. Even though claims of ineffective
assistance of counsel are subject to de novo review, a reviewing court should defer
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to the determination of facts made by the trial judge.” Saylor v. Commonwealth,
357 S.W.3d 567, 570-71 (Ky. App. 2012) (citations omitted).
III. ANALYSIS
The trial court found that Curry met the first Strickland prong because
his defense counsel plainly misadvised him about his parole eligibility under the
plea offer. This finding is fully supported by substantial evidence in the record,
consisting of the recording of the pretrial bench conference at which neither
defense counsel, the prosecutor, the judge, nor the Probation and Parole
representatives were certain about parole eligibility, in addition to defense
counsel’s unequivocal testimony that he misinterpreted the statute and that he
would have strongly advised Curry to accept the offer if had he known the correct
parole eligibility date.
However, the trial court found that Curry failed to meet the second
Strickland prong, which requires a showing that, but for the ineffective advice,
there is a reasonable probability the defendant would have accepted the plea offer
and the trial court would have accepted its terms. At the evidentiary hearing,
Curry did not initially respond directly when the Commonwealth asked whether he
was prepared to state in court that he in fact killed the victim on that day. Curry
simply replied that he would have taken the 20 percent deal. When the
Commonwealth pressed Curry and asked the question again, Curry testified that he
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did not remember the night of the murder and could not state that he killed
somebody. When a defendant unconditionally pleads guilty, he “admits the factual
accuracy of the various elements of the offenses with which he is charged.” Taylor
v. Commonwealth, 724 S.W.2d 223, 225 (Ky. App. 1986). Curry’s unwillingness
to make such an admission signifies that he could not meet the second prong of the
Strickland test and supports the trial court’s finding that Curry could not have
entered the plea because he was unwilling to admit he killed the victim.
The trial court’s ruling is supported by numerous cases in which
federal appellate courts have held that post-conviction petitioners were unable to
meet the second Strickland prong because they were unwilling to concede guilt.
In Rosin v. United States, a dermatologist was convicted by a jury of
multiple counts of Medicare fraud and sentenced to twenty-two years in prison.
786 F.3d 873, 874 (11th Cir. 2015). He sought post-conviction relief, arguing his
counsel was ineffective for grossly underestimating the prison sentence he would
receive and for failing to pursue a plea bargain. The Eleventh Circuit Court of
Appeals held that he failed to meet the Strickland standard because he persistently
refused to accept responsibility for the crimes, maintained his innocence, refused to
discuss a plea bargain, and insisted on going to trial. Id. at 878-79. Although
Curry, unlike Rosin, stated he was ready to discuss and accept a plea offer, he
similarly evinced “absolutely no interest in accepting any responsibility or guilt
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whatsoever.” Id. at 879. Consequently, like Rosin, he fails to meet the Strickland
standard.
Similarly, in Garcia v. United States, a petitioner convicted of
multiple counts of distributing methamphetamine insisted during plea negotiations
and trial that he never brought meth to South Dakota and consequently could not
sign the factual basis statement required for a plea agreement. 679 F.3d 1013,
1014 (8th Cir. 2012). The Eighth Circuit Court of Appeals held that he could not
establish that “he would have pleaded guilty but for his counsel’s erroneous
advice.” Id. Curry’s refusal to admit the factual basis of the offense, even at the
post-conviction hearing, means he could not establish that he would have met the
requirements of a guilty plea but for mis-advice regarding parole eligibility.
In the same way, in Humphress v. United States, the petitioner, who
was convicted by a jury of conspiracy to murder an FBI agent, repeatedly asserted
at his post-conviction hearing that he never willingly entered into an agreement to
murder a federal official. 398 F.3d 855, 859 (6th Cir. 2005). The Sixth Circuit
Court of Appeals held he failed to establish a reasonable probability that he would
have pled guilty. Id. In United States v. Stevens, the claimant maintained his
innocence when he took the stand at his post-trial hearing, leading the Eight Circuit
Court of Appeals to conclude that even if his counsel’s performance was
inadequate, he “failed to establish that there was any reasonable probability that he
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would have acknowledged his guilt had he been properly advised about the risks of
trial.” 149 F.3d 747, 748 (8th Cir. 1998).
Curry describes the Commonwealth’s questions at the RCr 11.42
hearing as muddled, convoluted, and unclear to him. He contends that his
testimony that he would have taken the 20 percent deal, would even have taken the
85 percent deal, and that he did not remember a whole lot from the night of the
crime, was sufficient to meet the prejudice prong and that he had no obligation at
the evidentiary hearing to state on the record that he killed the victim. He now
claims he certainly understood that by accepting the plea offer he would have to
admit guilt. However, he did not demonstrate or convey a willingness to admit
guilt in his responses to the Commonwealth’s questions, which were not
ambiguous but very straightforward. Curry also attempts to distinguish the above-
cited federal cases by arguing that the defendants in those cases were far more
“adamant” about their innocence than he was. A trial court’s findings regarding
the weight and credibility of the evidence shall not be set aside unless clearly
erroneous. CR 52.01. In this case, the trial court found that Curry’s statements
unequivocally showed he was unwilling to admit culpability, a necessary predicate
to the entry of a guilty plea. This factual finding is fully supported by Curry’s own
testimony and will not be disturbed on appeal.
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CONCLUSION
For the foregoing reasons, the Harlan Circuit Court’s supplemental
order denying the RCr 11.42 motion is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
J. Ryan Chailland Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Christopher Henry
Assistant Attorney General
Frankfort, Kentucky
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