LAMBERT, J., Judge.
Nicholas M. Stevens appeals from the Jefferson Circuit Court's opinion and order that denied his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion to vacate, set aside or correct his twenty-year sentence for two counts of first-degree assault and one count of wanton endangerment. After careful review of the record, we affirm.
On July 17, 2010, while in a hotel room he shared with his fiancée (the victim) and their three-year-old son, Stevens assaulted the victim throughout the night by inserting his fists into her rectum and vagina, causing serious injury. According to the victim, she and Stevens had been drinking beer and the next thing she knew Stevens became angry. He was angry about not having a job, not having any money, and not having a place to live. When the victim wanted to go to bed, Stevens became even angrier because he wanted to stay up drinking. Stevens called the victim a "slut" and a "whore," and he began accusing her of sleeping with other men. An argument began during which Stevens hit the victim, causing her to lose consciousness.
When the victim momentarily regained consciousness, Stevens had her lying on the bed. The victim remembers the couple's three-year-old son repeatedly screaming, "What are you doing to mommy? Stop it!" She asked Stevens to take her in the bathroom so that their son would not witness the assault, but he did not comply with her wishes.
The next thing the victim remembered was waking up the next morning in the shower. To the left of the shower was a pile of bloody sheets and towels. Stevens was in the doorway covered from head-to-toe in blood. The victim sat up in the tub, but she could not handle the pain of sitting up, so she laid back down. She finally got enough strength to get out of the bathtub in order to convince Stevens to allow her to walk to the gas station next to the hotel, ostensibly to buy candy for their son.
After convincing Stevens to let her go, the victim went directly to the hotel security officer's room. The officer gave the victim his phone, which she used to call her mother and sister. The victim's sister later arrived and they both went to the hotel room to retrieve the victim's son. When she inserted her key in the door, the victim discovered that Stevens had engaged the door bar. When she knocked on the door, she heard her son say, "Daddy, daddy, someone is at the door." The victim responded, "No! Don't wake daddy up! Come to the door and flip the lock." When the child eventually disengaged the lock and opened the door, the victim grabbed him and left. They stopped at a McDonald's on the way out of town to call the police and report Stevens' whereabouts.
Approximately four days later, the victim went to a local hospital due to hemorrhaging from her vagina and anus. She was transported to the University of Louisville Medical Center where she underwent emergency surgery. She eventually reported the incident to the police.
On August 12, 2010, a grand jury indicted Stevens for two counts of assault in the first degree,
Prior to sentencing and in accordance with the terms of his plea agreement, the trial court conducted a colloquy pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), to ascertain whether Stevens was entering into his plea knowingly, voluntarily, and intelligently. During the plea colloquy, the trial court explained to Stevens his possible sentence, asked whether counsel had informed him about possible defenses, and advised Stevens of the rights he would be forfeiting by pleading guilty. Stevens' answers to the trial court's questions expressed that he understood his possible sentence, that he had discussed with his counsel possible defenses, and that he understood the rights that he would be giving up by pleading guilty. The trial court accepted the guilty plea as voluntary and intelligent, and on November 12, 2010, it sentenced Stevens to the agreed upon twenty-years' imprisonment.
Stevens filed a pro se motion to vacate his sentence pursuant to RCr 11.42 on July 8, 2013. The trial court subsequently appointed Stevens counsel, who supplemented the pro se motion. Stevens' motion argued, inter alia, that his plea was not knowing, voluntary, or intelligent due to ineffective assistance of trial counsel based on counsel's failure to adequately advise him regarding a possible extreme emotional disturbance (EED) defense and for counsel's misadvice regarding his parole eligibility. He also requested an evidentiary hearing in relation to his motion.
On June 26, 2014, the trial court entered an opinion and order denying Stevens' motion without an evidentiary hearing. This appeal now follows.
Because Stevens' issues with his guilty plea involve ineffective assistance of counsel claims, he must satisfy the two-part test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). According to Strickland, a petitioner claiming ineffective assistance is entitled to relief if he shows that his counsel provided representation that "fell below an objective standard of reasonableness," id. at 688, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "On appeal, the reviewing court looks de novo at counsel's performance and any potential deficiency caused by counsel's performance." Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008). However, "[e]ven though claims of ineffective assistance are subject to de novo review, a reviewing court should defer to the determination of facts made by the trial judge." Logan v. Commonwealth, 446 S.W.3d 655, 658-59 (Ky. App. 2014).
The validity of a guilty plea must be determined not from specific key words uttered at the time the plea was taken, but from considering the totality of circumstances surrounding the plea. Kotas v. Commonwealth, 565 S.W.2d 445, 447 (Ky. 1978). A defendant's statements during a guilty plea colloquy do "constitute a formidable barrier in any subsequent collateral proceedings[.]" Fraser v. Commonwealth, 59 S.W.3d 448, 457 (Ky. 2001), quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977). However, the barrier is not insurmountable. Id. The court must examine the totality of the circumstances surrounding the plea to determine if the defendant's representations during the plea colloquy "were so much the product of such factors as misunderstanding, duress, or misrepresentation by others as to make the guilty plea a constitutionally inadequate basis for imprisonment." Id. quoting Blackledge, 431 U.S. at 74-75, 97 S.Ct. at 1629-30 (emphasis omitted).
In the context of guilty pleas, the same standard for establishing a claim of ineffective assistance of counsel articulated in Strickland applies. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). That is, the defendant must show: 1) deficient performance and 2) resulting prejudice. Strickland, 466 U.S. at 687. However, in order "to establish prejudice the challenger must demonstrate a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Stiger v. Commonwealth, 381 S.W.3d 230, 237 (Ky. 2012), quoting Premo v. Moore, 562 U.S. 115, 129, 131 S.Ct. 733, 743, 178 L.Ed.2d 649 (2011) (internal quotations marks omitted).
While a movant is not entitled to an evidentiary hearing on every RCr 11.42 motion, Wilson v. Commonwealth, 975 S.W.2d 901, 904 (Ky. 1998), an evidentiary 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." Fraser, 59 S.W.3d at 452 (citations omitted). Nevertheless, a hearing is not required if it is "determined that the allegations, even if true, would not be sufficient to invalidate Appellant's convictions." Wilson, 975 S.W.2d at 904.
Stevens first argues that his counsel was ineffective for failing to advise him about a possible EED defense. He alleges that prior to pleading guilty, he apprised his counsel as to his version of the events of the night in question. According to Stevens, on July 17, 2010, he and the victim had been drinking and doing drugs in their hotel room with the hotel security manager, Scott.
Stevens alleges that, even after he relayed his version of events, trial counsel never advised him of the availability of an EED defense. He asserts that, had he been so advised, he would have decided to go to trial rather than plead guilty and accept a twenty-year prison sentence. The trial court found, based on the attached exhibits, that trial counsel investigated the case and made a strategic decision not to explore a meritless EED defense. The court further found that a reasonable person would not have considered "mere jealousy" over the victim's alleged relationship with another man a triggering event. We do not believe that the trial court's findings are supported by the record.
Counsel has a duty to conduct a reasonable investigation, including an investigation of possible defenses to the charges. Hodge v. Commonwealth, 68 S.W.3d 338, 344 (Ky. 2001). Matters involving trial strategy, such as the decision to call a witness or not, generally will not be second-guessed by hindsight. Moore v. Commonwealth, 983 S.W.2d 479, 485 (Ky. 1998). However, we disagree with the trial court's finding that Stevens' exhibits were proof that trial counsel conducted a reasonable investigation and, based on that investigation, counsel made a reasonable decision not to pursue the EED defense.
Trial counsel's notes and the document requesting an investigation merely indicate that counsel listened to Stevens' version of the events and requested an investigation. Whether counsel's investigator actually interviewed witnesses or otherwise conducted the requested investigation is unknown from the record. Nor can it be determined from Stevens' exhibits any conclusions that trial counsel reached as a result of an alleged investigation. The record does not contain a transcript of the requested interview or any other means of determining that counsel actually investigated Stevens' version of events and decided not to pursue an EED defense based on that investigation. "[A] trial judge may not simply disbelieve factual allegations in the absence of evidence in the record refuting them." Fraser, 59 S.W.3d at 453-54, citing Drake v. United States, 439 F.2d 1319, 1320 (6
We also disagree with the trial court's finding that Stevens' version of the events demonstrated "mere jealousy." Extreme emotional disturbance has been defined by our highest court as "a temporary state of mind so enraged, inflamed, or disturbed as to overcome one's judgment, and to cause one to act uncontrollably from the impelling force of the extreme emotional disturbance rather than from evil or malicious purposes." McClellan v. Commonwealth, 715 S.W.2d 464, 468-69 (Ky. 1986). EED requires provocation from a "triggering event" that is "sudden and uninterrupted." Springer v. Commonwealth, 998 S.W.2d 439, 452 (Ky. 1999). "Evidence of mere `hurt' or `anger' is insufficient to prove extreme emotional disturbance." Talbot v. Commonwealth, 968 S.W.2d 76, 85 (Ky. 1998), citing Thompson v. Commonwealth, 862 S.W.2d 871 (Ky. 1993). The reasonableness of the defendant's explanation or excuse is to be determined subjectively from the defendant's point of view. Holland v. Commonwealth, 466 S.W.3d 493, 503 (Ky. 2015).
The trial court is correct that mere jealousy is not a sufficient triggering event. However, Stevens claims that he woke up to find his fiancée having sex with a man a few feet from where he was sleeping. Finding one's significant other in bed with another partner is the exact situation contemplated by the common law "sudden heat of passion" defense on which EED is based. We are therefore persuaded that the events as Stevens described them constitute a sufficient triggering event that could reasonably have induced EED.
To warrant an evidentiary hearing, Stevens must also show prejudice from his counsel's failure to advise him of a potential EED defense. "[W]here the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the `prejudice' inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial." Commonwealth v. Elza, 284 S.W.3d 118, 122 (Ky. 2009), quoting Hill v. Lockhart, 474 U.S. at 59, 106 S.Ct. at 371. The Commonwealth argues that because Stevens also alleged in his RCr 11.42 motion to the trial court that his attorney should have advised him of voluntary intoxication, he was too drunk to perceive the triggering event required for an EED defense. Therefore, according to the Commonwealth, because Stevens argued voluntary intoxication, his EED defense was unlikely to have succeeded at trial. We are not persuaded by this argument.
A defendant is entitled to present alternative theories to a jury, even inconsistent alternative theories. Morrow v. Commonwealth, 286 S.W.3d 206, 212 (Ky. 2009). "Kentucky courts are bound to instruct on the whole law of the case, including alternative instruction when supported by the evidence[.]" Id. at 213 (internal citations omitted). Stevens claims that after a night of heavy drinking, he awoke to find his fiancée having sex with another man in their hotel room. This supports both a theory of voluntary intoxication and a theory of EED. The jury could have believed either that Stevens was too drunk to form the necessary intent to commit assault in the first degree or that he acted under EED. Stevens' claim that he was too intoxicated to form the necessary intent to assault the victim does not make it less likely that his EED defense would have succeeded at trial.
In any event, based on the record, we do not believe that trial counsel rendered ineffective assistance by failing to advise Stevens of a possible EED defense. Under KRS 508.010:
Under KRS 508.040(1), EED is available as a defense to prosecution for an intentional assault in the first degree. A conviction for assault under EED reduces the classification and range of punishment for assault in the first degree (Class B felony) to one to five years commensurate with a Class D felony.
In this case, Stevens was indicted under both theories of first-degree assault. The indictment read in part:
EED is only a defense against assaults that are specifically intended. It has no application to crimes that use wanton as the applicable mental state. See Todd v. Commonwealth, 716 S.W.2d 242, 246 (Ky. 1986) (where EED could not be used as a defense for wanton murder because it affects one's specific intent). Wanton behavior generally requires a person to be aware of, but consciously disregard, "a substantial and unjustifiable risk" that is "of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." KRS 501.020(3).
The evidence in this case supported a wanton theory of culpability. The jury could have found, based on the evidence that Stevens acted wantonly in causing serious physical injury to the victim by performing masochistic acts on her while under the influence of intoxicating substances. Thus, at trial, the Commonwealth could have proceeded under a wanton theory of culpability. Because the EED defense could not have been used as a defense to the Commonwealth's wanton based accusation, trial counsel did not err by failing to advise Stevens regarding the defense.
Additionally, even if it were error to not advise Stevens of the EED defense as it relates to the intentional assault charge, the error was harmless. Stevens was not prejudiced by the alleged omission because the EED defense was not likely to succeed at trial. The only evidence of a triggering event was Stevens' own testimony as to what occurred. We find it highly doubtful that the jury would have believed the testimony of a perpetrator, who admittedly committed the heinous and violent sexual acts in the presence of his three-year-old son, over the testimony of the victim who claims that the alleged triggering event never occurred.
Because Stevens' claim could be refuted by examining the record, an evidentiary hearing was unnecessary. We note that the trial court did not specifically set forth such reasoning in its order denying the requested relief; however, it is axiomatic that "an appellate court may affirm a lower court for any reason supported by the record." McCloud v. Commonwealth, 286 S.W.3d 780, 786 n.19 (Ky. 2009).
Stevens next claims that his trial counsel failed to properly advise him regarding his parole eligibility. Specifically, Stevens claims that his trial counsel informed him that he would be eligible for parole after serving 20% of his sentence when in reality he would not be eligible for parole until he had served 85% of his sentence. The trial court found that Stevens was not prejudiced as a result of any alleged misadvise. We agree.
Stevens pled guilty to two Class B felonies involving serious physical injury to the victim. These felonies qualified him as a violent offender under KRS 439.3401(1)(c). A defendant considered to be a violent felony offender is not eligible for parole until he has served 85% of his sentence. KRS 439.3401(3)(a). In Pridham v. Commonwealth, 394 S.W 3d. 867, 878-79 (Ky. 2012), our Supreme Court held that counsel renders constitutionally ineffective assistance by failing to advise a client regarding the effects of the violent offender statute on parole eligibility. Thus, if Stevens' trial counsel informed him that he would be eligible for parole after serving only 20% of his sentence, that misinformation constitutes deficient performance under Strickland, supra.
However, as always, Strickland requires that a defendant be prejudiced by trial counsel's alleged errors before he is entitled relief. Strickland, 466 U.S. at 694. In terms of a guilty plea, this means an appellant has to show a reasonable probability that, but for his counsel's errors, he would not have entered a guilty plea, but instead would have insisted on going to trial. Pridham, 394 S.W.3d at 876. In other words, "[t]he movant must allege facts that, if proven would support the 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). Under the facts of this case, we do not believe that, had Stevens been aware of the violent offender statute and its effect on his eligibility for parole, there was a reasonable probability that he would have rejected the Commonwealth's plea offer and taken his chances at trial.
The crux of Stevens' argument regarding this issue is that he had a valid defense of EED and thus a realistic chance of a lower sentence had he proceeded to trial. As such, Stevens believes it would have been rational to reject a twenty-year deal with parole eligibility after seventeen years. However, as we explained earlier, EED was not a defense to the wanton conduct for which Stevens was indicted, and even if the Commonwealth would have proceeded with an intentional theory of culpability, there was no realistic possibility that the EED defense would have succeeded.
Had Stevens rejected the plea deal and proceeded to trial, he faced a total term of fifty-five-years' imprisonment, with parole eligibility after twenty years, if convicted of all the crimes for which he was charged and given consecutive sentences. Stevens does not deny that he caused the serious physical injuries to the victim. And, as he has not proffered any other valid defenses, it is likely that he would have been convicted of all the charges in the indictment. Whether or not to run the sentences concurrently or consecutively would have been up to the jury and the trial judge. However, we note that the facts of this case are particularly egregious and Stevens is unlikely to have garnered any sympathy from the judge or jury as he committed the disturbing and violent sexual acts in the presence of his and the victim's three-year-old son.
Stevens is correct that he would have been eligible for parole after twenty years had he received the maximum sentence, which is only three years more than his current parole eligibility. See Hughes v. Commonwealth, 87 S.W.3d 850, 854-56 (Ky. 2002), for discussion of the violent offender statute. However, parole is not guaranteed. See Garland v. Commonwealth, 997 S.W.2d 487, 490 (Ky. App. 1999) ("[P]arole is not a right but a privilege."). "[A] guilty plea in a criminal case must represent a meaningful choice between the probable outcome at trial and the more certain outcome offered by the plea agreement." Elza, 284 S.W.3d at 122, quoting Vaughn v. Commonwealth, 258 S.W.3d 435, 439 (Ky. App. 2008). Rather than risking the possibility of spending up to fifty-five years in prison, Stevens chose to accept the guarantee of being released after serving twenty years in prison. In light of the uncontroverted evidence and disturbing nature of the crime, we believe Stevens made a rational choice. Accordingly, we hold that Stevens was not prejudiced by any alleged misadvise from his trial counsel regarding his parole eligibility. A hearing was unnecessary because the record refutes Stevens' claim.
For the reasons stated herein, we hereby affirm the judgment of the Jefferson Circuit Court denying Stevens' motion for RCr 11.42 post-conviction relief.
ALL CONCUR.
