NOT TO BE PUBLISHED
OPINION
VANMETER, Judge.
Jesse VanVorst appeals from the Hardin Circuit Court's denial of his RCr1 11.42 motion. For the following reasons, we affirm.
I. Procedural and Factual Background
In 2012, VanVorst was indicted by a Hardin County Grand Jury for complicity to manufacture methamphetamine, with a firearm enhancement, and complicity to illegal possession of drug paraphernalia. The basis of these charges arose in June 2012 when deputies from the Hardin County Sheriff's Office went to VanVorst's residence to serve a bench warrant for failure to appear.
Two deputies arrived at VanVorst's residence to serve the warrant on VanVorst, and after observing several trucks in the driveway, knocked on both the front and back doors. After no answer, one of the deputies heard male voices in the kitchen, and made contact with VanVorst at the kitchen window. After a delay, VanVorst answered the back door, and was placed in custody. The deputies entered the home, and conducted a sweep of the house, during which two additional male subjects were found in the home, later identified as David Young, for whom deputies also had an arrest warrant, and Chester Coogle.
While performing the sweep of the home, the deputies noticed a strong chemical odor of ammonia in the kitchen and observed instrumentalities to make and use methamphetamine. After this initial sweep, the deputies asked VanVorst for consent to conduct a more thorough search of the residence. When VanVorst refused, the deputies obtained a search warrant and returned to the residence for the search. The subsequent search led to the discovery of numerous items associated with the manufacturing of methamphetamine, drug paraphernalia, and several firearms. The deputies confiscated the contraband, and arrested and charged VanVorst, Young, and Coogle.
In September 2012, VanVorst's trial counsel filed motions to suppress evidence obtained during the searches of VanVorst's residence, as well as statements VanVorst made at the scene after his arrest. These motions were scheduled for evidentiary hearing; however, on the day of the hearing, the parties reached a plea agreement. VanVorst entered an unconditional guilty plea to these charges, and in return, the Commonwealth recommended that the firearm enhancement be dismissed and that no Persistent Felony Offender (PFO) enhancement be sought. The deal recommended VanVorst serve ten years for the methamphetamine charge, to run concurrently with the twelve-month sentence for the drug paraphernalia charge. After entering this plea, VanVorst waived a separate sentencing hearing, and was sentenced according to the plea recommendation, with the final judgment entered in March 2013.
In October 2013, VanVorst filed a pro se RCr 11.42 motion and supporting memorandum to vacate his conviction on the grounds that his guilty plea was invalid as a result of ineffective assistance of counsel. The trial court denied this motion in April 2014, and from this denial VanVorst now appeals. Any necessary additional facts will be discussed with the relevant argument.
II. Standard of Review
We review a trial court's denial of an RCr 11.42 motion for abuse of discretion. Bowling v. Commonwealth, 981 S.W.2d 545, 548 (Ky. 1998). An abuse of discretion has occurred when the trial court's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (internal citation omitted).
To succeed on a claim of ineffective assistance of counsel, a defendant must meet two requirements:
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. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). This two-part inquiry also applies to a challenge to a guilty plea based on ineffective assistance of counsel; however, the "prejudice" requirement instead "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In order to satisfy the `prejudice' requirement, "the defendant must show . . . a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88 L. Ed. 2d 203 (1985) (internal citations omitted).
As the Kentucky Supreme Court recently noted,
"[T]o obtain relief [on an ineffective assistance claim] a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.". . . [A]t the pleading stage it is movant's burden to allege specific facts which, if true, would demonstrate prejudice. A conclusory allegation to the effect that absent the error the movant would have insisted upon a trial is not enough. The 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) (internal citations omitted.
III. Arguments
VanVorst makes four arguments on appeal. First, he argues that the trial court erred by denying his RCr 11.42 motion without holding an evidentiary hearing concerning whether his trial counsel was ineffective for failing to investigate and pursue suppression of evidence relating to the circumstances of the searches and search warrant. Second, VanVorst argues that his guilty plea was not voluntary and was the result of manipulation and coercion. Third, VanVorst argues that his counsel was ineffective by failing to pursue the suppression motion related to the warrantless search of his residence. In conjunction to this suppression issue, he also argues that he was not given a Miranda2 warning, and thus any evidence obtained is fruit of the poisonous tree and therefore must be suppressed. Fourth, VanVorst argues that his trial counsel was ineffective in failing to develop and present a meaningful defense.
A. Failure to Investigate
VanVorst argues that his counsel failed in his duty to investigate any further than the state's discovery, and failed to investigate "the attempted concealment of information regarding the two initial searches and the approximate time of arrival of the deputies and their entry prior to any search warrant being obtained." However, VanVorst does not cite with any specificity to which information he is referring, or how that information has been concealed. In order to be entitled to RCr 11.42 relief, the movant must "state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds." RCr 11.42(2). "Conclusory allegations that counsel was ineffective without a statement of the facts upon which those allegations are based do not meet the rule's specificity standard and so `warrant a summary dismissal of the motion.'" Roach v. Commonwealth, 384 S.W.3d 131, 140 (Ky. 2012) (internal citation omitted).
With regard to the timing issue of the deputies, VanVorst does not specify why a further investigation into the exact time of arrival of the deputies would have impacted his guilty plea. Defense counsel "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691, 104 S. Ct. at 2066. From the record, VanVorst's counsel clearly made a reasonable inquiry into the suppression issue and filed the appropriate motion. Since "[i]t is not ineffective assistance of counsel to fail to perform a futile act[,]" without a showing as to how further investigation would have changed his decision to plead guilty or would have yielded evidence favorable to the defense, we agree with the trial court that VanVorst's counsel did not fail in his duty to investigate. Bowling, 80 S.W.3d at 415.
B. Voluntariness of Guilty Plea
Next, VanVorst argues that his counsel gave "gross misadvice" and "manipulated and coerced" him into pleading guilty. As noted by the trial court, VanVorst was under oath when he entered his guilty plea, at which time he said that he had not been coerced and had no complaints about trial counsel. Sworn declarations by a defendant in open court that his guilty plea is made voluntarily "carry a strong presumption of verity." Edmonds v. Commonwealth, 189 S.W.3d 558, 569 (Ky. 2006). When determining whether a guilty plea is voluntary, the trial court considers "the totality of the circumstances surrounding the guilty plea, an inherently fact-specific inquiry." Porter v. Commonwealth, 394 S.W.3d 382, 385 (Ky. 2011). Accordingly, an appellate court reviews "a trial court's finding regarding voluntariness for clear error, i.e., whether the determination was supported by substantial evidence[.]" Id. at 386. "[T]he effect of entering a voluntary guilty plea is to waive all defenses other than that the indictment charges no offense. A guilty plea constitutes a break in the chain of events, and the defendant therefore may not raise independent claims related to the deprivation of constitutional rights occurring before entry of the guilty plea." Centers v. Commonwealth, 799 S.W.2d 51, 55 (Ky. App. 1990) (internal citations omitted).
VanVorst argues that he was threatened with addition of a PFO charge if he did not plead guilty. The trial court noted that this charge was merely a truthful enhancement that VanVorst was facing, and an "attorney does not commit an error by truthfully telling his client about the potential penalties if the plea offer is rejected." In this case, not only was VanVorst aware of the suppression issues and consulted his attorney, who filed the appropriate motion, but he was also aware that he forfeited pursuing this issue with the entry of his guilty plea. Furthermore, VanVorst had nearly a month to consider his guilty plea before the court entered it. The trial court did not err in finding that VanVorst's guilty plea was entered voluntarily.
C. Suppression
Although not required to do so, the trial court analyzed the suppression issues in this case, and correctly noted that the record shows that VanVorst did not and could not make the necessary showing that a reasonable probability existed for success on the suppression motion. We agree with the trial court that VanVorst would not have been successful in his suppression motion if he had not pleaded guilty.
A protective sweep is "a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding." Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 1094, 108 L. Ed. 2d 276 (1990). This warrant exception "permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene." Id., 494 U.S. at 337, 110 S. Ct. at 1099-100.
VanVorst argues that since he was arrested on the doorstep of his home, his arrest was not "in-home" within the meaning of Buie. However, Buie has been extended to include an arrest taking place outside of a residence when the totality of the circumstances would cause a reasonable police officer to have "articulable suspicion that a protective sweep [was] necessary by reason of a safety threat." Brown v. Commonwealth, 423 S.W.3d 765, 770 (Ky. App. 2014) (internal citations omitted).
In the instant case, the facts support a protective sweep of the VanVorst residence: there were multiple cars in the driveway when the deputies arrived; the deputies heard more than one male voice through the kitchen window; VanVorst delayed between making contact with the deputies and answering the door. Furthermore, the deputies only searched in areas where an individual may be hiding, such as under beds, where one of the defendants actually was hiding. The deputies clearly had a reasonable basis for the belief that additional individuals might have been hiding in the home, and might have posed a threat to their safety. The trial court was correct in finding that the initial entry into the VanVorst residence was a proper protective sweep.
Additionally, once the protective sweep resulted in plain view observations consistent with meth manufacturing, the deputies asked VanVorst to consent to a further search of the residence. When he refused, the deputies properly halted the search and obtained a search warrant based on an affidavit of the events, which was granted, and found all the hallmarks of methamphetamine production. VanVorst's argument that the discrepancies in the record about the time the deputies arrived or executed the search warrant is indicative that the search was improper is irrelevant. He fails to explain how this affects the validity of the search. The underlying facts of the warrant are not in dispute, nor is the underlying arrest warrant that permitted the initial encounter. The trial court was correct in finding that the admission of the evidence from the house was inevitable and would have sustained the charges against VanVorst.
Lastly, VanVorst argues that, since he was never given a Miranda warning once detained, the statements he made in response to police interrogation should be suppressed. The Commonwealth argues that this claim is not properly preserved as this Miranda issue was not raised in the RCr 11.42. VanVorst counters that although he did not specifically raise the suppression of his statements, his general claim regarding counsel's failure to investigate the suppression issue encompasses this issue. We disagree. An issue not raised in the RCr 11.42 motion is not properly before this court on appeal of the denial of such a motion. Bowling, 80 S.W.3d at 419. Since the issue is not preserved, we will not consider it.3
D. Meaningful Defense
Lastly, VanVorst argues that his trial counsel was ineffective in failing to develop and present a meaningful defense. The manufacturing methamphetamine charge, firearm enhanced, is a Class A felony with a penalty range far exceeding the ten years' imprisonment to which VanVorst was sentenced. See KRS4 218A.1432(2); KRS 218A.992(1)(a); KRS 532.060(2)(a). Furthermore, the Commonwealth was ready to charge VanVorst as a PFO, which would have had the same effect on the manufacturing methamphetamine charge as the gun enhancement; either would have required VanVorst to serve 85% of his sentence before becoming eligible for parole. KRS 439.3401(1)(b), (3). This plea deal reduced VanVorst's sentence to the minimum sentencing recommendation of a Class B felony with eligibility for parole after just two years. KRS 532.060(2)(b); 501 KAR5 1:030(3)(c).
As discussed, VanVorst's suppression motion, before it was remanded at the entry of his guilty plea, cannot be said to have a reasonable chance of success. Therefore, VanVorst's trial counsel recommending this plea deal, which halved his sentence and greatly reduced the time before parole eligibility, is certainly not below the "objective standard of reasonableness" required to show deficient performance. See Strickland, 466 U.S. at 688; 104 S. Ct. at 2064. "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Id., 466 U.S. at 700, 104 S. Ct. at 2071. The trial court did not err in denying this RCr 11.42 motion.
IV. Conclusion
For the foregoing reasons, the order of the Hardin Circuit Court is affirmed.
ALL CONCUR.
