MICHAEL HICKMAN v. COMMONWEALTH OF KENTUCKY
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RENDERED:
NOVEMBER 3, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-002045-MR
MICHAEL HICKMAN
APPELLANT
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE STEVEN D. COMBS, JUDGE
ACTION NO. 03-CR-00178
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
ABRAMSON AND VANMETER, JUDGES; KNOPF,1 SENIOR JUDGE.
ABRAMSON, JUDGE:
Michael Hickman appeals from an August 30,
2005, Order of the Pike Circuit Court denying his Kentucky Rule
of Criminal Procedure (“RCr”) 11.42 motion.
We affirm.
On July 9, 2003, Hickman was indicted by the Pike
County grand jury on four counts of Sexual Abuse in the First
Degree and one count of Persistent Felony Offender, Second
Degree (“PFO II”).
1
According to the indictment, Hickman was
Senior Judge William L. Knopf sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
Kentucky Revised Statutes 21.580.
eligible for PFO II status because the new charges were
committed within five years of the end of a period of probation
which was imposed on Hickman by the Jefferson Circuit Court
following a 1992 conviction for four counts of Sexual Abuse in
the First Degree.
Prior to trial Hickman executed a Motion to Enter
Guilty Plea on March 1, 2004.2
During a hearing held on that
same date, Hickman, accompanied by his counsel, entered his plea
of guilty to the indicted charges.
As a part of the
proceedings, Hickman answered various questions asked him by the
trial court pursuant to Boykin v. Alabama, 395 U.S. 238 (1969).
Among the answers provided by Hickman was an affirmative
response to an inquiry concerning whether he was satisfied with
his counsel’s assistance and advice.
In a final judgment entered by the Pike Circuit Court
on April 27, 2004, Hickman was sentenced to one year of
incarceration on each of the four sexual abuse counts, all to
run concurrently.
The sentence, however, was enhanced to five
years as a result of the PFO II charge.
On August 24, 2005, Hickman filed a pro se Motion to
Vacate Judgment and Sentence Pursuant to RCr 11.42.
2
As grounds
The Motion to Enter Guilty Plea contained in the record bears a “FILED”
stamp with the date March 3, 2003. However, the filing year of 2003 must be
incorrect as the motion indicates that it was executed by the Appellant on
March 1, 2004. Additionally, the other documents related to the plea have a
“FILED” date of March 3, 2004.
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for his motion, Hickman argued that his counsel in the
underlying criminal action conducted an inadequate investigation
into his eligibility for PFO II status.
Specifically, Hickman argued that on November 6, 1992,
he was sentenced by the Jefferson Circuit Court to incarceration
for three years on the four sexual abuse charges, but that the
sentence was probated for a period of five years subject to
compliance with various conditions.
However, despite the
specific order of the trial court, Hickman contended that his
probationary period did not end on November 6, 1997, but rather
on September 27, 1994.
He supported this conclusion by
reference to an April 15, 2005, letter that he received from the
Jefferson County probation and parole office.
This letter
stated, in pertinent part:
I have enclosed your order releasing you
from probation on Indictment 92CR2054 as you
requested. You were placed on probation on
9/24/92 and were released from probation on
9/27/94.
Relying on this letter, Hickman claimed that because his period
of probation out of the Jefferson Circuit Court ended over six
years prior to the commission of the Pike County offenses, he
was not eligible for PFO II status and his counsel should have
discovered such before advising him to enter his guilty plea in
the Pike Circuit Court.
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Before the Commonwealth responded to Hickman’s motion
and without a hearing, the Pike Circuit Court entered an order
on September 1, 2005, denying his motion.
The court stated:
The RCr 11.42 Motion does not allege that
his guilty plea was involuntary or not
intelligently entered into on March 1, 2004.
The Defendant did not provide proof of any
allegation regarding his functional
illiteracy and low intelligence quotient.
Therefore, the allegations of the Motion are
summarily dismissed. RCr 11.42(5). The
Court sees no reason to revisit its factual
findings of March 1, 2004, regarding the
Defendant’s decision to enter an intelligent
and voluntary guilty plea.
This appeal followed.
In Strickland v. Washington, 466 U.S. 668 (1984), the
United States Supreme Court set forth the standard governing
review of claims of ineffective assistance of counsel.
Under
this standard, a party asserting such a claim is required to
show:
(1) that the trial counsel’s performance was deficient in
that it fell outside the range of professionally competent
assistance; and (2) that the deficiency was prejudicial because
there is a reasonable probability that the outcome would have
been different but for counsel’s performance.
This standard was
adopted by the Kentucky Supreme Court in Gall v. Commonwealth,
702 S.W.2d 37 (Ky. 1985).
This test is modified in cases involving a defendant
who enters a guilty plea.
In such instances, the second prong
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of the Strickland test includes the requirement that a defendant
demonstrate that but for the alleged errors of counsel, there is
a reasonable probability that the defendant would not have
entered a guilty plea, but rather would have insisted on
proceeding to trial.
Hill v. Lockhart, 474 U.S. 52 (1985);
Sparks v. Commonwealth, 721 S.W.2d 726 (Ky. App. 1986).
A reviewing court must entertain a strong presumption
that counsel’s challenged conduct falls within the range of
reasonable professional assistance.
89.
Strickland, supra at 688-
The defendant bears the burden of overcoming this strong
presumption by identifying specific acts or omissions that he
alleges constitute a constitutionally deficient performance.
Id. at 689-90.
The relevant inquiry is whether
there is a reasonable probability that, but
for counsel’s unprofessional errors, the
result of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine
confidence in the outcome.
Id. at 694.
Hickman claims that the failure of his trial counsel
to discover that he was not eligible for PFO II status at the
time he entered his guilty plea constitutes ineffective
assistance.
However, in order for Hickman to be entitled to
relief on this claim, his assertion that counsel erred must be
correct.
We find that it is not.
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Though the complete record relating to Hickman’s 1992
conviction is not before this Court, a copy of the judgment from
that case is attached to his RCr 11.42 motion.
That document
indicates that on November 6, 1992, the Jefferson Circuit Court
placed Hickman on probation for a period of five years.
Thus,
as is evidenced by the record, Hickman’s probation continued
until November 6, 1997.
The record further indicates that the
offenses underlying Hickman’s indictment in the Pike Circuit
Court were committed during April 2002.
Simple calculation
reveals that the new offenses were committed approximately four
years and five months following the end of Hickman’s
probationary period.
KRS 532.080(2)(c)(3) requires that in order for a
defendant to be eligible for PFO II status, he must have been
“discharged from probation, parole, conditional discharge,
conditional release, or any other form of legal release on any
of the previous felony convictions within five (5) years prior
to the date of commission of the felony for which he now stands
convicted. . . .”
Referring to the April 2005 letter from the
Jefferson County probation and parole office, Hickman contends
that his release from probation occurred approximately six years
prior to the commission of the new offenses.
correct.
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This is not
As noted above, Hickman was placed on probation for a
period of five years by the Jefferson Circuit Court in 1992.
The constitutional power to amend this sentence rested solely
with that court, and then only for a limited period of time.
See Commonwealth v. Gross, 936 S.W.2d 85 (Ky. 1996); CR 59.05.
It could not be altered by the Division of Probation and Parole.
If such power exists outside the sentencing court, it resides
only with the Governor in the form of a pardon.
§ 77.
See Ky. Const.
Whatever the intended meaning of the letter, it does not
(and could not) reflect a change in the sentence Hickman
received from the Jefferson Circuit Court.3
Thus, because Hickman has offered no proof of any
court order to the contrary, it is apparent from the record that
his term of probation did not end until November 6, 1997.
The
new offenses with which Hickman was charged in the Pike Circuit
Court were committed four years and five months after that date,
and he was PFO II eligible when he committed those offenses in
April 2002.
Because of this, counsel did not err when he did
not challenge Hickman’s PFO II indictment, and thus Hickman did
not have ineffective assistance of counsel.
3
Bowling v.
The Commonwealth’s brief includes a Special Supervision Report of the
Division of Probation and Parole dated July 27, 1994. According to this
report, Hickman was not released from probation in September 1994, but rather
moved “to an inactive status pending expiration of sentence.” This report
was not in the record before the Pike Circuit Court and is not a basis for
this Court’s opinion. It does, however, clarify what actually occurred with
regard to Hickman’s status in September 1994.
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Commonwealth, 80 S.W.3d 405 (Ky. 2002)(it is not ineffective
assistance for counsel to fail to perform a futile act).
For the foregoing reasons, the order of the Pike
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Richard Edwin Neal
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
George G. Seelig
Assistant Attorney General
Frankfort, Kentucky
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