Not to be Published
OPINION
COMBS, JUDGE:
Breck McCracken, pro se, appeals the order of the Jefferson Circuit Court denying his motion for relief pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42. Following careful review, we affirm.
In 2002, McCracken pled guilty to a charge of robbery in the first degree and tampering with physical evidence. He also entered a plea of guilty to a murder charge while maintaining his innocence pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970). Additionally, McCracken pled guilty to being a persistent felony offender. He is serving a life sentence.
In 2006, McCracken filed a motion pursuant to RCr 11.42 alleging that but for ineffective assistance of counsel, he would have not pled guilty. The trial court ruled that McCracken had received effective assistance. The Court of Appeals reversed and remanded for an evidentiary hearing because some of McCracken's arguments could not be proven or refuted by the record. An evidentiary hearing was held on March 4, 2009. The trial court again denied McCracken's motion on June 8, 2009. This appeal follows.
Our standard of review of an RCr 11.42 motion is governed by rules set forth by the Supreme Court of the United States. It has prescribed a two-pronged test describing the defendant's burden of proof in these cases:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984), adopted in Kentucky by Gall v. Commonwealth, 702 S.W.2d 37, 39-40 (Ky. 1985). Both criteria of deficient performance by counsel and prejudice to the defendant must be met in order for the test to be satisfied. The Strickland Court emphasized that reviewing courts should assess the effectiveness of counsel in the light of the totality of the evidence presented at trial and the fundamental fairness of the challenged proceeding. Id. at 695-96.
The Supreme Court refined the Strickland test in the context of guilty pleas in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366 (1985), in which it held that "in order to satisfy the `prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59.
McCracken first argues that one of his trial counsel (there were two) was ineffective due to his failure to perform a pre-trial investigation. His argument is that his counsel should have investigated phone records involving conversations between McCracken and his co-defendant around the time of the murder. However, at the evidentiary hearing, one of McCracken's trial counsel testified that he had examined the phone records in detail. His opinion was that the records were actually damaging to McCracken's defense since they supported the testimony of McCracken's co-defendant, who blamed the murder on McCracken. As an appellate court, we must not second-guess trial counsel's strategy. Harper v. Commonwealth, 978 S.W.2d 311, 317 (Ky. 1998). McCracken has not shown that failure to use the phone records was deficient representation rather than deliberate and sound trial strategy by counsel.
McCracken also argues that his counsel failed to discuss possible defenses with him. However, at the time of entering his guilty plea, he told the court that his counsel had discussed all possible defenses with him. Our nation's highest court has held that the verbal exchange in court would serve as:
a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.
Blackledge v. Allison, 431 U.S. 63, 73-74 (1977), (citations omitted) (emphasis added). In addition, at the evidentiary hearing, McCracken's counsel testified that they had discussed his version of events along with that of his co-defendant. Although his co-defendant's version made more sense (especially in conjunction with the physical evidence), McCracken did not change his story.
McCracken claims that his counsel should have explored a duress defense because his co-defendant forced him to participate in the events surrounding the murder by threatening McCracken with harming him or his girlfriend. However, McCracken's counsel did not believe that the duress defense was viable because video surveillance showed that McCracken had had an opportunity to get away from his co-defendant at a gas station only four blocks from a police station. Furthermore, the alleged threat was made after the murder, negating its use as a defense to the murder about to take place. McCracken has not shown that his counsel provided ineffective assistance in this respect.
McCracken also argues that his counsel's representation was deficient because of failure to obtain mental evaluations. However, that issue is unpreserved. McCracken has asked us to examine it for palpable error pursuant to RCr 10.26. Our Supreme Court has defined a palpable error as one that results in "manifest injustice" affecting a party's substantial rights. Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). It elaborated that an appellate court may recognize palpable error as one that "seriously affects the fairness, integrity, or public reputation of judicial proceedings" and that we should probe the record to determine if the error was "shocking or jurisprudently intolerable." Id. at 4.
In this case, McCracken has not demonstrated how the lack of a mental evaluation has seriously affected the fairness of his prosecution and subsequent guilty plea and sentence. Because the Commonwealth initially pursued the death penalty against him, he suggests that we should use the mitigating evidence analysis applied in death penalty cases; i.e., failure to pursue mental competency testing. However, McCracken reached an agreement with the Commonwealth by which he escaped the death penalty, life without parole, and life without parole for twenty-five years. Therefore, in spite of the lack of mental evaluations, McCracken received a sentence much more lenient than that which the Commonwealth had originally sought. We are not persuaded that any error — much less a palpable one — was committed.
McCracken contends that his trial counsel encouraged him to accept the Commonwealth's plea offer based on a misrepresentation of the Commonwealth's evidence. He contends that counsel focused on his co-defendant's version of the events, thus confusing his understanding of the state of the evidence in the record. However, the record shows that McCracken was aware of all of the discovery provided by the Commonwealth to his counsel, which consisted of many witnesses and physical evidence. In the light of the extensive evidence, even McCracken's sister encouraged him to accept the offer. Furthermore, the Commonwealth expounded upon the evidence at the hearing at which McCracken entered his guilty plea. After hearing that presentation, McCracken responded with his plea of guilty. We are not persuaded that any error was committed.
McCracken also argues that it was error for the Commonwealth to introduce potential witnesses one week before trial. However, this argument is not appropriate for an RCr 11.42 motion. McCracken's counsel made a motion for the trial court to exclude the evidence, which the trial court denied. The denial of the motion was not attributable to ineffective assistance of counsel.
McCracken's final argument is that he was not properly advised of the implications of an Alford plea and that his counsel pressured him into entering the plea. Alford, 400 U.S.25. It is well established in our Commonwealth that it is not ineffective assistance for counsel to advise a client to plead guilty. Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky. App. 2004); Beecham v. Commonwealth, 657 S.W.2d 234, 236-37 (Ky. 1983); Glass v. Commonwealth, 474 S.W.2d 400, 401 (Ky. 1971). Our Supreme Court has reasoned that the evidentiary hearing is the proper forum in which the circumstances of the guilty plea should be examined and assessed. Rodriguez v. Commonwealth, 87 S.W.3d 8, 11 (Ky. 2002).
At McCracken's evidentiary hearing, his trial counsel testified that McCracken was advised to plead guilty because the Commonwealth's evidence was persuasive and that McCracken risked being sentenced to death if he proceeded with a jury trial. McCracken's sister asked him to plead because she did not want him to be executed. We agree with the trial court that under these circumstances, it was not unreasonable or ineffective assistance for McCracken's counsel to advise him to plead guilty.
Additionally, although McCracken claims not to have understood the implications of the Alford plea, there is the following note on the guilty plea form in his handwriting: "I am maintaining my innocence to the murder charge but believe there is evidence from which a jury would find me guilty & that I would receive a harsher sentence." He accurately paraphrased the elements of Alford. The record also shows that McCracken and the trial court engaged in a meaningful conversation concerning the implications of the plea, and McCracken indicated that he was aware of the consequences of the plea.
Therefore, as we conclude that McCracken received effective assistance of counsel, we affirm the Jefferson Circuit Court.
ALL CONCUR.
