Filed: Mar. 21, 2014
Latest Update: Mar. 21, 2014
Summary: NOT TO BE PUBLISHED OPINION STUMBO, Judge. Terry Riley appeals from an order of the Laurel Circuit Court which denied his motion pursuant to RCr 11.42 in which he alleged ineffective assistance of trial counsel. The trial court denied the motion without a hearing. We believe a hearing is required in this case; therefore we reverse and remand for further proceedings. Because we are remanding for a hearing, we need not recite the facts of this case in detail. Riley alleges that his counsel was
Summary: NOT TO BE PUBLISHED OPINION STUMBO, Judge. Terry Riley appeals from an order of the Laurel Circuit Court which denied his motion pursuant to RCr 11.42 in which he alleged ineffective assistance of trial counsel. The trial court denied the motion without a hearing. We believe a hearing is required in this case; therefore we reverse and remand for further proceedings. Because we are remanding for a hearing, we need not recite the facts of this case in detail. Riley alleges that his counsel was ..
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NOT TO BE PUBLISHED
OPINION
STUMBO, Judge.
Terry Riley appeals from an order of the Laurel Circuit Court which denied his motion pursuant to RCr 11.42 in which he alleged ineffective assistance of trial counsel. The trial court denied the motion without a hearing. We believe a hearing is required in this case; therefore we reverse and remand for further proceedings.
Because we are remanding for a hearing, we need not recite the facts of this case in detail. Riley alleges that his counsel was ineffective for failing to ensure the jury received the "no adverse instruction" during the truth-in-sentencing phase of his trial. That instruction tells the jury that a defendant does not have to testify and that his decision not to testify cannot be used as an inference of guilt and should not prejudice him in any way. This instruction is to be given in the truth-in-sentencing phase of trial, when requested, if the jury also has to determine a defendant's guilt for a persistent felony offender charge, as was the case sub judice. The trial court denied Appellant's motion without holding a hearing and this appeal followed.
To prevail on a claim of ineffective assistance of counsel, Appellant must show two things:
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, 80 L.Ed.2d 674 (1984). Additionally, "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).
In this case, the jury instructions were discussed by the trial judge and the parties off the video record. Also, we cannot find in the written record where the parties submitted their own versions of the jury instructions to the trial court. This means that there is nothing in the record showing whether or not Appellant's trial counsel requested that the "no adverse instruction" be included during the truth-in-sentencing phase. This is an issue of fact that cannot be determined from the face of the record; therefore, a hearing is required on this issue. Appellant raised other issues in his motion to the trial court, however, the "no adverse instruction" issue is the only one raised on appeal. Thus, the hearing to be held on remand will be limited to the "no adverse instruction" issue only.
For the foregoing reasons we reverse and remand the order of the trial court.
ALL CONCUR.
