NOT TO BE PUBLISHED

OPINION

DIXON, JUDGE.

Appellant, James E. Black, Jr., appeals pro se from an order of the Henderson Circuit Court denying his motion for post-conviction relief pursuant to RCr 11.42. Finding no error, we affirm.

In August 2007, Appellant was indicted by a Henderson County Grand Jury on two counts of first-degree trafficking in a controlled substance, second offense, and for being a first-degree persistent felony offender. On February 12, 2009, Appellant appeared in open court and entered an Alford plea of guilty to all charges. Appellant was sentenced to twenty years' imprisonment on each charge to run concurrently for a total sentence of twenty years. However, that sentence was ordered to run consecutively to any other sentence Appellant had previously been ordered to serve.

On April 11, 2010, Appellant filed a pro se RCr 11.42 motion claiming ineffective assistance of counsel, as well as motions for the appointment of counsel and for an evidentiary hearing. Appellant alleged that trial counsel erroneously advised him that he was pleading guilty to Class C felonies and that the maximum sentence he could receive was twenty years' imprisonment, which would run concurrently with the thirty-four years "back up time" he would have to serve on his prior sentences.1 Appellant further alleged that trial counsel advised him the trial court would consider shock probation.

On May 10, 2010, the trial court denied Appellant's motions, finding that his claims could be refuted from the face of the record. The trial court determined that Appellant had knowingly entered into a plea agreement with the Commonwealth to plead guilty to Class B felonies. Further, the trial court concluded that Appellant stated under oath that he was not relying on anyone's assurances concerning the terms of imprisonment, their relationship to his prior sentences, or the availability of shock probation. Appellant thereafter appealed to this Court.

In an RCr 11.42 proceeding, the movant has the burden to establish convincingly that he was deprived of substantial rights that would justify the extraordinary relief afforded by the post-conviction proceeding. Dorton v. Commonwealth, 433 S.W.2d 117, 118 (Ky. 1968). An evidentiary hearing is warranted only "if there is an issue of fact which cannot be determined on the face of the record." Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993), cert. denied, 510 U.S. 1049 (1994); RCr 11.42(5). See also Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001); Bowling v. Commonwealth, 981 S.W.2d 545, 549 (Ky. 1998), cert. denied, 527 U.S. 1026 (1999). "Conclusionary allegations which are not supported by specific facts do not justify an evidentiary hearing because RCr 11.42 does not require a hearing to serve the function of a discovery deposition." Sanders v. Commonwealth, 89 S.W.3d 380, 385 (Ky. 2002), cert. denied, 540 U.S. 838 (2003), overruled on other grounds in Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009).

Since Appellant entered a guilty plea, a claim that he received ineffective assistance of counsel requires him to show: (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 pled guilty, but would have insisted on going to trial. Bronk v. Commonwealth, 58 S.W.3d 482, 486-87 (Ky. 2001). See also Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

A criminal defendant may demonstrate that his guilty plea was involuntary by showing that it was the result of ineffective assistance of counsel. In such a case, the trial court is to "consider the totality of the circumstances surrounding the guilty plea and juxtapose the presumption of voluntariness inherent in a proper plea colloquy with a Strickland v. Washington inquiry into the performance of counsel." Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky. App. 2004) (quoting Bronk, 58 S.W.3d at 486. (footnotes omitted)). A defendant is not guaranteed errorless counsel, or counsel judged ineffective by hindsight, but counsel likely to render reasonably effective assistance. McQueen v. Commonwealth, 949 S.W.2d 70 (Ky. 1997), cert. denied, 521 U.S. 1130 (1997). The Supreme Court in Strickland noted that a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. However, advising a defendant to plead guilty is not, by itself, sufficient to demonstrate any degree of ineffective assistance of counsel. Beecham v. Commonwealth, 657 S.W.2d 234, 236-7 (Ky. 1983).

As he did in the trial court, Appellant first argues that trial counsel provided ineffective assistance by advising him that he was pleading guilty to Class C felonies. Such is clearly refuted from the record. The indictment stated that Appellant was charged with Class B felonies that were subject to enhancement because of the PFO charge. In addition, the written plea agreement clearly informed him that he was pleading guilty to two Class B drug offenses, which each carried a penalty of ten to twenty year sentences but could be enhanced to twenty years to life imprisonment based upon his status as a persistent felony offender. During the plea hearing, the trial court again thoroughly explained the charges and that such were subject to enhanced penalties. Appellant stated that he understood and was voluntarily entering into the plea agreement. There simply is no evidence that Appellant believed he was pleading guilty to Class C rather than Class B felonies.

Similarly, there is no merit to Appellant's claim that trial counsel misinformed him that his current sentence would run concurrently to the prior sentence. Clearly such was not an option as Appellant committed the drug offenses while on parole from his prior sentence. See KRS 533.060(2). Significantly, however, during the plea colloquy, Appellant stated under oath that he had not relied on any assurances as to how the sentences would run:

We are of the opinion that the above colloquy, when considered along with the written documents provided to Appellant concerning the penalty ranges and possible sentences, clearly establishes that he understood he was not guaranteed a single twenty-year sentence or that his current sentence would run concurrent to his prior sentence.

Nor do we agree with Appellant that the trial court's questions were vague. Appellant argues that he believed the trial court was only asking whether he had received assurances from his probation officer, not his attorney. However, the question was plain and simple. The trial court asked whether Appellant had received assurances from anybody as to how much time he would have to serve. Certainly "anybody" includes Appellant's attorney, and he had the opportunity to tell the court at that time if he was told that his current sentence would run concurrently with his prior sentence. The trial court properly found that Appellant's claims on this issue were refuted from the record.

Appellant next alleges that trial counsel erroneously advised him that the trial court would consider shock probation. On May 27, 2009, counsel did, indeed, file a motion and memorandum requesting shock probation, which was denied. Admittedly, counsel should have been aware that Appellant was ineligible for shock probation as he was convicted of Class B felonies that were committed while he was on parole. Nevertheless, the record is devoid of any evidence that trial counsel promised Appellant he would be granted probation or that he entered his guilty plea based on some reliance that he would be released early.

Appellant next argues that the trial court failed to comply with the provisions of RCr 11.42 because the circuit court clerk did not notify the local Commonwealth's Attorney or the Attorney General's office that Appellant had filed a motion for post-conviction relief. Appellant is convinced that had the local Commonwealth's Attorney been notified and given the opportunity to review the motion, he would have agreed that RCr 11.42 relief was warranted.

We are of the opinion that Appellant's claims are nothing more than speculation. While the Commonwealth is entitled to file a response to an RCr 11.42 motion, it is under no obligation to do so. Polsgrove v. Commownealth, 439 S.W.2d 776, 778 (Ky. 1969). Herein, a response was unnecessary as Appellant's allegations were refuted from the face of the record. Thus, while Appellant is correct that RCr 11.42(4) requires the clerk to notify the Attorney General and Commonwealth's Attorney that an RCr 11.42 motion has been filed, we simply cannot conclude that Appellant was prejudiced by the procedural error or that such error warranted the extraordinary relief afforded by RCr 11.42.

We likewise find no merit in Appellant's allegation that the trial court's failure to notify the Attorney General and Commonwealth's Attorney that an RCr 11.42 motion had been filed demonstrated judicial bias against him. As previously noted, it is the clerk's obligation, not the trial court's, to make the said notifications. Without question, there is nothing in the record to indicate any evidence of judicial bias against Appellant.

Based upon a review of the record, we cannot conclude that Appellant received erroneous advice from trial counsel to plead guilty to the charges herein. Therefore, the trial court properly ruled that trial counsel did not render ineffective assistance of counsel and Appellant was not entitled to post-conviction relief.

The order of the Henderson Circuit Court denying Appellant's motion for relief pursuant to RCr 11.42 is affirmed.

ALL CONCUR.