NOT TO BE PUBLISHED

OPINION

ACREE, Chief Judge.

The issue before us is whether the Pendleton Circuit Court erred when it granted Appellee Thomas Fuller, Jr.'s motion to vacate his criminal conviction under Kentucky Rules of Criminal Procedure (RCr) 11.42. After a careful review, we affirm.

I. Facts and Procedure

In December 2003, the Commonwealth filed a juvenile petition charging Fuller with ten counts of first-degree sodomy and ten counts of first-degree sexual abuse. The charges stemmed from an allegation that in 2002 Fuller engaged in sexual relations with his stepsister when she was nine years old and Fuller was at least fourteen years old.1

Counsel was appointed to represent Fuller. On May 15, 2004, the County Attorney prosecuting the case faxed to Fuller's counsel a settlement offer. The offer would have allowed Fuller to serve only 90 days in juvenile detention upon a plea of guilty;2 however, the County Attorney said if the offer was not accepted, he would pursue transfer of the case to circuit court where Fuller would be tried as an adult and face the possibility of a 20-year sentence. Fuller's counsel "made no effort at all to respond to the County Attorney's offer. . . ."3 (Circuit Court Order, January 27, 2012, p.8). In the absence of a response, the County Attorney pursued transfer and was successful.

On March 16, 2005, the Pendleton County Grand Jury indicted Fuller on a single count of first-degree sodomy. Fuller was tried as an adult, and a jury found him guilty. The Kentucky Supreme Court affirmed his conviction and sentence. Fuller v. Commonwealth, 2006-SC-000364-MR, 2009 WL 1452648, at *1 (Ky. May 21, 2009).

Fuller then filed a motion to vacate his conviction due to ineffective assistance of counsel. In that motion, Fuller asserted his trial counsel was ineffective when: (1) he failed to accurately communicate the ninety-day plea offer to Fuller; (2) he failed to investigate and prepare for the transfer hearing; (3) he improperly moved to continue the adjudication hearing, thereby preventing jeopardy from attaching; (4) he failed to object to the taking of witness testimony outside Fuller's presence; and (5) his cumulative errors resulted in a different outcome than would have occurred had the errors not been made. Fuller requested an evidentiary hearing, which the circuit court granted.

The hearing was conducted on June 23, 2011, after which the circuit court took the case under advisement.

By order entered January 27, 2012, the circuit court granted Fuller's RCr 11.42 motion and vacated his conviction. The circuit court held that Fuller's first argument had merit; counsel failed to adequately convey the 90-day plea offer under circumstances that made it reasonable to conclude this affected the outcome of the case. As to Fuller's second, third, and fourth arguments, the circuit court found counsel's representation fell below reasonable professional norms; however, none of them, standing alone, could support the conclusion that, but for these deficiencies, the outcome would have been different. Finally, the circuit court concluded that but for the cumulative effect of these four errors "the disposition of [Fuller's] case below would have been different." (Circuit Court Order, January 27, 2012, p.20).

We have carefully, and thoroughly, examined this record. As the trial court noted, "one factor that made this matter particularly difficult to understand [was d]efense counsel's lack of any documentation reflecting his plea efforts or any other of the issues presented. . . ." (Id. at p.9). Nevertheless, the court reached its conclusions based on conflicting testimony regarding whether counsel even presented the offer to Fuller and, if he did, the extent to which Fuller was counseled regarding the ramifications of not accepting the Commonwealth's offer. We especially note the circuit court's conclusion that Fuller's counsel failed in his "absolute duty to discuss plea offers with his . . . client, to explain to [him] the advantages and disadvantages of accepting or rejecting the offer, and to give the client the best advice on whether to accept or reject it." (Id. at p.7).

We find it difficult to dispute the circuit court's findings regarding the other deficiencies in trial counsel's performance and conclude that these deficiencies, taken together, justify affirming the circuit court's decision in this case.

IV. Conclusion

For the foregoing reasons, we affirm the Pendleton Circuit Court's January 27, 2012 order finding ineffective assistance of counsel and that court's remand of the case to the Pendleton District Court.

ALL CONCUR.