NOT TO BE PUBLISHED
OPINION
KRAMER, Judge.
Kevin Antonio VanBuren appeals from an order of the Christian Circuit Court overruling his Kentucky Rule of Criminal Procedure (RCr) 11.42 motion to vacate his plea of guilty without an evidentiary hearing. We affirm.
It is uncontroverted that on September 15, 2011, VanBuren unlawfully entered the residence of his ex-girlfriend and shot her in the neck with a stolen firearm. The victim's two minor children were sleeping in an adjacent room to where the shooting occurred. According to the victim, VanBuren broke into her apartment, held the gun to her head, and repeatedly threatened to kill her. After shooting the victim in her neck, VanBuren attempted to shoot her again. However, no other rounds were discharged. One of the victim's children woke up during the incident and came into the room to see what was happening. VanBuren fled the scene. During his flight, VanBuren left the gun on a family member's back porch, where a ten-year-old boy found the gun and fired a round into the outside wall of the residence. VanBuren was arrested four hours later.
VanBuren was subsequently indicted on the charges of attempted murder, first-degree burglary, three counts of first-degree wanton endangerment, tampering with physical evidence, and receiving stolen property. Through mediation, the parties reached a plea agreement. On October 7, 2013, in exchange for a plea of guilty on all of his charges, VanBuren was given a total sentence of fifteen-years' imprisonment with parole eligibility after serving eighty-five percent of his sentence.
On November 25, 2014, VanBuren filed an RCr 11.42 motion seeking to vacate his guilty plea and sentence. In his motion, VanBuren claimed that his plea was not knowing, voluntary, or intelligent because of ineffective assistance from his trial counsel. Specifically, he stated that: 1) his plea was coerced by counsel; 2) counsel failed to advise him of the elements of his charged crime; 3) counsel failed to advise him of possible jury instructions for lesser-included offenses; and 4) counsel failed to advise him that as a violent offender, he would not be eligible for parole until he served eighty-five percent of his sentence. Without holding an evidentiary hearing, the trial court found that VanBuren entered his plea rationally, freely and voluntarily. We agree with the trial court.
A defendant who claims that his guilty plea was not knowing, voluntary, or intelligent because of ineffective assistance of counsel must show: (1) that counsel made errors so serious that counsel's performance fell outside the wide range of professionally competent assistance such that counsel was not performing as counsel guaranteed by the Sixth Amendment; and (2) that but for counsel's unprofessional errors, there is a reasonable probability that the defendant would not have pled guilty and would have instead insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Sparks v. Commonwealth, 721 S.W.2d 726, 727-28 (Ky. App. 1986).
RCr 11.42 requires an evidentiary hearing "[i]f the answer raises a material issue of fact that cannot be determined on the face of the record." RCr 11.42(5); see also Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993). "The trial judge may not simply disbelieve factual allegations in the absence of evidence in the record refuting them." Fraser v. Commonwealth, 59 S.W.3d 448, 452-53 (Ky. 2001). When the trial court denies an RCr 11.42 motion without first conducting an evidentiary hearing, our review is limited to whether the motion "on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidated the conviction." Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. App. 1967).
On appeal, VanBuren contends that the trial court abused its discretion when it denied his RCr 11.42 motion without first conducting an evidentiary hearing. He alleges that the record does not conclusively refute his claim that his trial counsel failed to advise him as to the elements to his charged crimes and as to possible defenses. We disagree.
First, VanBuren's claim that he did not know that intent was an element of attempted murder and an element of first-degree burglary is refuted by the record. The record indicates that during the course of VanBuren's guilty plea colloquy, VanBuren's trial counsel specifically acknowledged that he had explained to VanBuren all of the elements of all of the offenses and any possible defenses that might be available to him. VanBuren did not object or claim otherwise. Instead, VanBuren affirmed that he had had plenty of opportunity to look over the plea agreement with his counsel; that he understood the rights that he was giving up by pleading guilty; that he had no complaints with how he was represented by counsel; and that the plea was being entered into voluntarily.
We are aware that "the validity of a guilty plea is not determined by reference to some magic incantation recited at the time it is taken but from the totality of the circumstances surrounding it." Kotas v. Commonwealth, 565 S.W.2d 445, 447 (Ky. 1978). However, "the representations of the defendant, his lawyer, and prosecutor at such a hearing . . . constitute a formidable barrier in any subsequent collateral proceeding. Solemn declarations in open court carry a strong presumption of verity." Blackledge v. Allisson, 431 U.S. 63, 73-74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). "The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal . . . ." Id.
Here, other than his conclusory allegations to the contrary, VanBuren provides no support for his claim that his trial attorney's statements in open court were untrue. Thus, we are of the opinion that trial counsel's acknowledgment that he explained the elements of the crimes along with VanBuren's implicit concurrence constitute evidence in the record that conclusively refutes VanBuren's specific claim that the elements of the offenses were not explained to him. An evidentiary hearing is not required when a movant's allegations are refuted by the record. Hensley v. Commonwealth, 305 S.W.3d 434, 436 (Ky. App. 2010).
Next, VanBuren claims that his trial counsel failed to advise him that if he proceeded to trial he would possibly be entitled to jury instructions on the lesser-included offenses of fourth-degree assault, second-degree assault, and criminal trespass. The trial court found that even if VanBuren had been advised on possible lesser-included offenses, it would not have been rational for him to reject the plea offer and continue to trial. We agree.
VanBuren's claim is directly refuted by the evidence in the record. During his plea colloquy, VanBuren stated that he was satisfied with his attorney and that counsel had fully explained the defenses available to him. He denied that he had been coerced or induced to accept the plea agreement and he signed the motion to enter a guilty plea (AOC form 491) indicating that he had read and understood its contents. Additionally, in a letter to the trial judge dated June 22, 2012, VanBuren wrote that he "took it upon himself to study the law book at the Hopkins County Detention Center." He goes on to list several offenses that require less culpability than those for which he was charged. Moreover, VanBuren had, on a previous occasion, been charged with first-degree burglary. That charge was amended down to criminal trespass, further suggesting that VanBuren was at least aware that criminal trespass was a lesser-included offense of first-degree burglary. Based on the totality of these circumstances, the record supports that VanBuren was aware of the possibility for instructions on lesser-included offenses, but knowingly and voluntarily decided to plead guilty anyway.
Furthermore, even if as VanBuren claims, he was not advised on the elements of his crimes and lesser-included offenses, he must prove that he was prejudiced. During VanBuren's plea colloquy, and upon the trial court's request, VanBuren explained on the record that he went into his ex-girlfriend's house without permission with a stolen firearm. While unlawfully inside the residence, the firearm discharged and the victim was struck in the neck. He also acknowledged that the victim's two children were in the home when the victim was shot. He now claims on appeal, that he did not intend to kill the victim. He insists he was prejudiced by his counsel's failure because, had the jury believed his story, it would have led to his being acquitted of his most serious charges, i.e., attempted murder and first-degree burglary.
In order to prove prejudice, a "movant must allege facts that, if proven would support a conclusion that the decision to reject the plea bargain and go to trial would have been rational, e.g., valid defenses, a pending suppression motion that could undermine the prosecution's case, or the realistic potential for a lower sentence." Stiger v. Commonwealth, 381 S.W.3d 230, 237 (Ky. 2012) (emphasis added). In light of the seriousness of the crime charged and the circumstances surrounding the crime, it would not have been rational for VanBuren to forgo the Commonwealth's offer and proceed to trial.
We have consistently held that intent may be proven by circumstantial evidence. See Jones v. Commonwealth, 331 S.W.3d 249, 253 (Ky. 2011). In this case, a jury could have reasonably inferred from VanBuren's own accounting of the events—i.e., that he broke into his ex-girlfriend's house brandishing a firearm that discharged—that he intended to kill the victim. The inference is reasonable even before the testimony of the victim who would have stated that, while VanBuren held the gun to her head, he repeatedly told her he was going to kill her. In order to believe VanBuren's defense that he did not intend to kill the victim in this case, the jury would have had to believe the testimony of VanBuren—who admittedly broke into the victim's home brandishing a stolen firearm that discharged—over the testimony of the shooting victim and possibly the testimony of the victim's two children. Given the foregoing, we do not believe that the possibility of the jury's believing VanBuren's testimony over the testimony of— at least —the victim was realistic enough that the decision to reject the plea bargain and insist on going to trial would have been reasonable.
Based on the charged offenses had VanBuren insisted on going to trial, he faced a minimum of ten-years' imprisonment and a maximum of sixty-five-years' imprisonment. Under his plea agreement, he was sentenced to fifteen-years' imprisonment. The plea agreement recommended by counsel, and voluntarily accepted by VanBuren on the record, resulted in a significantly lower term of imprisonment than VanBuren likely would have received upon being found guilty by a jury. In light of the improbability of the jury's believing VanBuren, and the realistic probability of a much higher sentence, the advice to accept the plea "represent[ed] a meaningful choice between the probable outcome at trial and the more certain outcome offered by the plea agreement." Commonwealth v. Elza, 284 S.W.3d 118, 122 (Ky. 2009). VanBuren has failed to show that a decision to reject the Commonwealth's offer would have been rational.
Based on the foregoing, the Christian Circuit Court's order overruling VanBuren's RCr 11.42 motion is AFFIRMED.
ALL CONCUR.
