NOT TO BE PUBLISHED

OPINION

STUMBO, JUDGE.

Daniel King, pro se, appeals from an order of the Christian Circuit Court denying his RCr 11.42 motion for post-conviction relief without an evidentiary hearing. King's only argument on appeal is that he was entitled to an evidentiary hearing. We agree and reverse and remand.

On February 3, 2007, King was operating his vehicle while intoxicated and collided with another vehicle. Two people were in the other vehicle: one was killed and the other seriously injured. King was charged with one count of murder, first-degree assault, operating a motor vehicle under the influence of alcohol, and having no insurance.

King was initially represented by court-appointed counsel, Eric Bearden. In March of 2007, the Commonwealth made a plea offer for a 30-year sentence in exchange for a plea of guilty. This offer is not set forth in the record. The terms of the deal stipulated that King would be considered a violent offender and thus be required to serve 85% of his sentence before he would become eligible for parole. King declined the offer. King then hired a private attorney, Edward DeWerff. Bearden volunteered to assist on the case, but he did not remain lead counsel.

On March 5, 2008, the Commonwealth made a written guilty plea offer to King. The offer primarily included amending the charges to second-degree manslaughter with a 10-year sentence and first-degree assault with a 10-year sentence. The sentences were to be served consecutively for a total of 20 years. The second-degree manslaughter did not fall under the violent offender category, so King would be eligible for parole after serving 20% of that sentence. The first-degree assault was a violent offender charge, requiring 85% completion before becoming eligible for parole. King accepted this agreement and pled guilty. He was sentenced on May 22, 2008.

In April of 2009, King filed a pro se RCr 11.42 motion alleging ineffective assistance of counsel. King's only allegation is that his counsel informed him of a plea offer consisting of second-degree manslaughter and second-degree assault. These charges are both designated nonviolent and permit parole eligibility after serving 20% of their sentences. King claims his trial counsel did not inform him this offer was time sensitive. King argues that he wanted to think about the offer and by the time he was willing to accept it, it had expired. King alleges his counsel was ineffective because he was not informed of the time limitation, but had he been informed, he would have accepted the offer, which is more favorable in terms of parole eligibility.

The Commonwealth replied to the motion stating that no such offer had ever been made. The trial court ordered King's two attorneys to supply affidavits stating their recollection on this issue. Both stated in their affidavits that the Commonwealth did not make the offer alleged by King. The trial court denied King's RCr 11.42 motion without a hearing. This appeal followed.

King argues that he should have been given a hearing on his RCr 11.42 motion. "[A] hearing is required 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, 743-744 (Ky. 1993).

Sparks v. Commonwealth, 721 S.W.2d 726, 727 (Ky. App. 1986)(citing Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967)).

Here, King claims that both he and his mother were told about an offer that would have him be eligible for parole after serving 20% of his sentence for second-degree manslaughter and second-degree assault. Attorneys Bearden and DeWerff and the Commonwealth claim there was no such plea offer.

The United States Supreme Court recently held that in some circumstances, if trial counsel causes his client to decline or not respond to a plea offer more favorable to him than the one he ultimately accepts, this can be deemed ineffective assistance of counsel. Missouri v. Frye, ___U.S. ___, 132 S.Ct. 1399, 182 L.Ed.2d 1399 (2012). King does not ask us to rule on the merits of his ineffective assistance of counsel claim, he merely asks us to reverse and remand for a hearing to be held on the issue. We agree that King should have been afforded a hearing. This is a classic "swearing contest" over whether an offer was extended. Whether or not this offer existed is an issue of fact that cannot be conclusively determined by the record in this case.

We therefore reverse and remand to the Christian Circuit Court for a RCr 11.42 hearing on this issue.

ALL CONCUR.