Filed: Jun. 03, 2016
Latest Update: Jun. 03, 2016
Summary: NOT TO BE PUBLISHED OPINION NICKELL , Judge . Billy Glenn Coleman appeals from a Garrard Circuit Court order entered February 20, 2015, denying his motions to vacate sentence pursuant to RCr 1 11.42 and for an evidentiary hearing. This Court reverses denial of the motion to vacate and remands for an evidentiary hearing on alleged ineffective assistance of counsel claims related to a purported plea negotiation that occurred outside court on or about March 1, 2013, that does not appear of r
Summary: NOT TO BE PUBLISHED OPINION NICKELL , Judge . Billy Glenn Coleman appeals from a Garrard Circuit Court order entered February 20, 2015, denying his motions to vacate sentence pursuant to RCr 1 11.42 and for an evidentiary hearing. This Court reverses denial of the motion to vacate and remands for an evidentiary hearing on alleged ineffective assistance of counsel claims related to a purported plea negotiation that occurred outside court on or about March 1, 2013, that does not appear of re..
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NOT TO BE PUBLISHED
OPINION
NICKELL, Judge.
Billy Glenn Coleman appeals from a Garrard Circuit Court order entered February 20, 2015, denying his motions to vacate sentence pursuant to RCr1 11.42 and for an evidentiary hearing. This Court reverses denial of the motion to vacate and remands for an evidentiary hearing on alleged ineffective assistance of counsel claims related to a purported plea negotiation that occurred outside court on or about March 1, 2013, that does not appear of record. The Commonwealth agrees an evidentiary hearing is necessary.
BACKGROUND
On March 1, 2013, Coleman pled guilty to one count of attempted murder,2 one count of wanton endangerment in the first degree,3 and one count of being a convicted felon in possession of a handgun.4 The guilty plea was consistent with the plea bargain Coleman and his attorney negotiated with the Commonwealth earlier that day. Two other counts of wanton endangerment and a persistent felony offender (PFO) charge were dropped as part of the plea negotiation. Following a guilty plea colloquy, Coleman was sentenced as follows: fifteen-years imprisonment for the attempted murder charge, and five years each on the wanton endangerment charge and the felon in possession of a handgun charge, all terms to be served concurrently. The plea Coleman accepted is the only plea contained in the record, but according to Coleman, it was not the only offer extended by the Commonwealth.
On February 12, 2015, Coleman filed an RCr 11.42 motion alleging the Commonwealth offered him another plea—in exchange for a guilty plea to first-degree wanton endangerment and being a PFO, the Commonwealth would recommend a sentence of twelve and one-half years instead of fifteen years. Coleman maintained he rejected this offer because it included the PFO charge, and he mistakenly believed he would have to serve a mandatory ten years. This was inaccurate, however, because the ten-year mandatory minimum stated in KRS 532.080(7)5 would not apply to one convicted of a Class D felony not involving "a violent act against a person or a sex crime as that term is defined in KRS 17.500.. . ." According to Coleman, under the plea offering twelve and one-half years, he would have pled guilty to only a Class D felony, and PFO status.
In contrast to his current post-conviction claim, Coleman accepted the Commonwealth's offer of fifteen years because it would mean parole eligibility after serving just three years—twenty percent of the sentence. Coleman argues his attorney rendered ineffective assistance by remaining silent, allowing him to persist in a false belief regarding the PFO charge, and allowing him to accept a recommended plea of fifteen years instead of only twelve and one-half years when both were offered. The Garrard Circuit Court denied the RCr 11.42 motion and the request for an evidentiary hearing thereon, stating: "[t]here being no issues of fact or law that cannot be resolved by the record, Defendant's motion is denied without a hearing." This appeal followed.
ANALYSIS
[A]bsence from the record of a written plea agreement does not "conclusively resolve" that a plea agreement was not, in fact, reached. Oral plea agreements are not uncommon.
Fraser v. Commonwealth, 59 S.W.3d 448, 457 (Ky. 2004). Frazer further states,
[a] hearing is required if there is a material issue of fact that cannot be conclusively resolved, i.e., conclusively proved or disproved, by an examination of the record. The trial judge may not simply disbelieve factual allegations in the absence of evidence in the record refuting them.
Id. at 452-53 (internal citations omitted).
Both Coleman and the Commonwealth agree this case must be remanded for an evidentiary hearing. Review of the record confirms questions of fact raised by Coleman that cannot be answered by the record in its current form. Since the plea negotiation was oral and occurred outside court, there is no record to verify or negate Coleman's claim the Commonwealth offered to recommend a sentence of just twelve and one-half years. The Commonwealth concedes this point in its brief. Additionally, there is no statement in the record of the advice counsel gave (or did not give) Coleman about the purported offer of twelve and one-half years and whether he would be required to serve a mandatory ten-year term before becoming parole eligible. A record must be developed at a hearing and findings of fact must be made after that hearing to fully analyze Coleman's claim of ineffective assistance of counsel under RCr 11.42.
For the foregoing reasons, this Court reverses the order entered February 20, 2015, denying Coleman's ineffective assistance of counsel claim and his request for an evidentiary hearing. We remand the matter to the Garrard Circuit Court with direction that an evidentiary hearing be held regarding any plea negotiations held on or about March 1, 2013, and the resulting allegation of ineffective assistance of counsel.
ALL CONCUR.
