RENDERED: OCTOBER 25, 2012
E PUBLISHED
S5uprrint (Court of 1,.fir
2008-SC-000864-DG
DAVID STIGER
DATE ,, _ , 5- ra. 5-ANA Gym. rt.* C--
APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. CASE NO. 2007-CA-000549-MR
JEFFERSON CIRCUIT COURT NOS. 03-CR-000060,
03-CR-000109, AND 03-CR-003264
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE ABRAMSON
AFFIRMING
In December 2003, David Stiger pled guilty in the Jefferson Circuit Court
to, among other offenses, five counts of first-degree robbery. By Judgment
entered January 30, 2004, the trial court sentenced him, pursuant to the plea
agreement, to concurrent terms of ten years' imprisonment for each robbery
count, enhanced to twenty years by virtue of Stiger's status as a first-degree
persistent felon. First-degree robbery is a "violent offense," as that term is
defined in Kentucky Revised Statute (KRS) 439.3401, the violent offender
statute, and under that statute, a person convicted of a violent offense does not
become eligible for parole until he has served the lesser of 85% of the sentence
imposed or twenty years. Claiming that he was not apprised of the parole
ramifications of his sentence and that in fact he was told by counsel that he
would become eligible for parole upon having served 20% of his sentence, in
January 2007, Stiger moved for relief from his guilty plea pursuant to
Kentucky Rule of Criminal Procedure (RCr) 11.42. The trial court summarily
denied Stiger's motion, and a unanimous panel of the Court of Appeals
affirmed. Relying on this Court's opinion in Commonwealth v. Padilla, 253
S.W.3d 482 (Ky. 2008), the Court of Appeals ruled that parole was a collateral
consequence of a sentence and that a defendant's ignorance of or even
misapprehension regarding a sentence's collateral consequences does not
invalidate his guilty plea. Stiger moved for discretionary review, and during the
pendency of his motion the United States Supreme Court issued its opinion in
Padilla v. Kentucky, 559 U.S. , 130 S. Ct. 1473 (2010), overruling our Padilla
opinion.' We then granted Stiger's discretionary review motion to consider his
claims in light of the Supreme Court's decision. We now affirm.
RELEVANT FACTS
According to police reports, during the afternoon of July 23, 2002, two
young men entered Derby City Video on South 4th Street in Louisville and, after
engaging the manager in conversation for a few minutes, pulled handguns and
demanded the money from the cash register. The manager opened the register,
whereupon one of the men climbed over the counter into the manager's office
and took the money. From the inside of the office, the robber unlocked the
office door and was leaving when a customer entered the store. The robbers
His discretionary review motion was held in abeyance for over a year pending
the U.S. Supreme Court decision in Padilla.
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forced the man at gunpoint into the office, had him empty his pockets, took the
cash he was carrying, and then fled.
On November 8, 2002, Henry White reported to the Louisville police that
a man he had met about a week before came to the door of his home on
Ormsby Avenue and asked to be let in. Inside, the man asked for something to
drink, and when the two went to the kitchen, the man picked up a paring knife
from the counter, held it to Mr. White's throat, and demanded his money. Mr.
White resisted and, though sustaining cuts to his arms, eventually subdued
the attacker. When the attacker agreed to leave, Mr. White let him go and
called the police. About three weeks later an investigator showed Mr. White a
photo pack, and he identified Stiger as his attacker.
On November 12, 2002, William Mootz reported to the Louisville police
that a young man he knew as "Goldie" came to his home on Glenmary Avenue
and asked to be let in. Once inside, the man hit him on the head with a large
flashlight, then opened the door to let in a second man. The two men tied up
Mr. Mootz with a sheet and proceeded to ransack his bedroom, eventually
departing with jewelry, a cell phone, and Mr. Mootz's car. According to the
criminal complaint, Mr. Mootz was also able to identify Stiger as the person
who first came to his door.
On November 18, 2002, the Derby City Video was again robbed. A
different clerk was working that afternoon, and he reported that a young man
and a young woman entered the store together, that the woman asked him
something, and that while he was talking to her the man came up behind him,
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held a knife to his throat, and demanded money. The robbers took the store's
cash and the clerk's wallet.
On November 25, 2002, Louisville police officers responded to a report of
disorderly conduct at Juanita's Restaurant on South Brook Street. Stiger was
exiting the restaurant when the officers arrived. He was wearing a security
officer's badge on his belt, but when asked about it could not explain how he
came by it. Restaurant customers and workers reported that Stiger had
claimed to be a police officer investigating counterfeit money, and as part of his
"investigation" demanded the restaurant's cash. He became angry when the
restaurant workers refused his demand. One of the workers called the police,
and Stiger left, or tried to leave, when the officers arrived.
Earlier that day, a security guard at Spalding University reported to a
police officer that as she was walking along the university's 4th Street side a
young man came up behind her, placed one hand over her mouth, and with the
other held a knife to her throat. He demanded her rings, rifled her pockets,
and then demanded her security badge. The guard later identified the badge
found on Stiger as the one stolen from her. After his arrest at the restaurant,
Stiger gave a statement to the investigators in which he admitted participating
in both of the Derby City Video robberies.
Based on this evidence, the Jefferson County Grand Jury issued two
indictments against Stiger. In one of them he was charged with first-degree
burglary and first-degree robbery for his November 8 attack on Mr. White. In
the other he was charged with four counts of first-degree robbery (the two video
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store robberies, the robbery of Mr. Mootz, and the robbery of the security
guard), one count of first-degree burglary (the burglary of Mr. Mootz's
apartment), one count of unlawful imprisonment (the binding of Mr. Mootz),
and one count of impersonating a peace officer (the restaurant incident). In a
subsequent indictment, Stiger was alleged to be a first-degree persistent felony
offender (PFO), with prior felony convictions for receiving stolen property and
for escape.
The cases were eventually consolidated and set for trial in January 2004.
First-degree robbery, KRS 515.020, and first-degree burglary, KRS 511.020,
are both class B felonies punishable by imprisonment from ten to twenty years.
The minimum sentence is increased to twenty years if the person convicted is
found to be a persistent felon of either the first or second degree. KRS
532.080. The maximum sentence is increased to fifty years or life. Id. As
noted above, first-degree robbery is also, for parole purposes, a violent offense,
the perpetrator of which must serve 85% of his sentence, but not more than
twenty years, before becoming eligible for parole. KRS 439.3401. First-degree
unlawful imprisonment, KRS 509.020, and impersonating a peace officer, KRS
519.055, are both class D felonies punishable by imprisonment from one to five
years, subject to PFO enhancement of from five to ten years. Prior to trial, the
Commonwealth offered a plea bargain to Stiger whereby, in exchange for his
guilty plea to all nine of the alleged offenses, it would recommend the minimum
ten-year sentence for each of the seven class B felonies and five-year sentences
for the two class D felonies, all to run concurrently for a total sentence of ten
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years enhanced to twenty years by virtue of Stiger's PFO status. Stiger
accepted this twenty-year offer, and on December 16, 2003, at a hearing
pursuant to RCr 8.08 and Boykin v. Alabama, 395 U.S. 238 (1969), moved to
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enter a guilty plea. The trial court granted the motion, and by Judgment
entered January 30, 2004, convicted and sentenced Stiger accordingly.
Three years later, in January 2007, Stiger moved for relief from that
Judgment pursuant to RCr 11.42. His pro se motion asserted three grounds
for relief. He claimed first that his plea was involuntary in violation of Boykin
because "he was made to believe" that he was being offered a sentence without
PFO enhancement, and because at the plea colloquy "there was no mention" of
the fact that he would not be eligible for parole until he had served 85% of his
sentence. He next contended that trial counsel was ineffective prior to the plea
by incorrectly advising him that he would be eligible for parole after serving
four years instead of the seventeen years required under the violent offender
statute. He also contended, finally, that counsel rendered ineffective
assistance at sentencing when counsel failed to respond "to the sudden and
unexpected change in the sentence that was imposed by the court" with a
motion to withdraw the plea. Finding no merit to these claims, the trial court
denied Stiger's motion without appointing counsel and without holding a
hearing. The Court of Appeals affirmed and, following the United States
Supreme Court's Padilla decision, this Court granted discretionary review.
Stiger now focuses primarily on counsel's alleged misadvice concerning parole
eligibility and contends that, under Strickland v. Washington, 466 U.S. 668
6
(1984) and Padilla v. Kentucky, 130 S. Ct. at 1473, that misadvice so tainted
his plea as to invalidate it. Before addressing that particular contention, we
briefly address Stiger's other claims.
ANALYSIS
As noted, Stiger seeks relief from his guilty plea pursuant to RCr 11.42
on the ground that his plea was invalid. To be entitled to relief on that ground,
an RCr 11.42 movant must allege with particularity specific facts which, if
true, would render the plea involuntary under the Fourteenth Amendment's
Due Process Clause, would render the plea so tainted by counsel's ineffective
assistance as to violate the Sixth Amendment, or would otherwise clearly
render the plea invalid. Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001).
Motions which fail adequately to specify grounds for relief may be summarily
denied, as may be motions asserting claims refuted or otherwise resolved by
the record. Commonwealth v. Elza, 284 S.W.3d 118 (Ky. 2009). Motions
adequately alleging valid claims not refuted by the record entitle the movant to
an evidentiary hearing. Fraser, 59 S.W.3d at 452. We review the trial court's
factual findings only for clear error, but its application of legal standards and
precedents we review de novo. Brown v. Commonwealth, 253 S.W.3d 490 (Ky.
2008).
I. The Record Refutes 'Stiger's Claim That He Was Not Informed About His
PFO- Enhanced Sentence.
To the extent that Stiger's claims are based on allegations that he was
not aware that he was to be sentenced as a PFO or that PFO sentencing took
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him by surprise, not only are those claims refuted by the record, as the trial
court implicitly found, but they are refuted by Stiger's own motion. Stiger's
plea agreement, which he signed and acknowledged in court, provides as part
of the Commonwealth's recommendations that Stiger would receive a ten-year
concurrent sentence for all of his offenses and that "that 10 year sentence
would be enhanced to 20 years by the PFO I indictment." That is precisely the
sentencing agreement that the trial court's Judgment reflects. Stiger himself,
moreover, arguing in his RCr 11.42 motion that counsel misadvised him
regarding parole, complains that his attorney "advised movant that if movant
withdrew his not guilty [plea] and entered into a plea of guilty in accordance
[with] the Commonwealth's recommendation, that he would then be required to
serve a twenty (20) year sentence and that he would be eligible for a parole
review after having served four (4) years on the twenty (20) year sentence."
Regardless of whether counsel misadvised Stiger about parole eligibility, it is
clear that no one misinformed Stiger about his PFO-enhanced twenty-year
sentence.
II. The Trial Court Was Not Obliged to Advise Stiger About the Parole
Consequences of His. Guilty Plea.
Stiger's next claims that he should be granted relief from his guilty plea
because the trial court did not advise him that he would be ineligible for parole
until he had served 85% of his sentence. This claim is likewise without merit.
In Brady v. United States, 397 U.S. 742 (1970), the Supreme Court indicated
that a guilty plea could be deemed voluntary under the Due Process Clause if it
was "entered by one fully aware of the direct consequences," and was not
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induced by threats or improper promises. 397 U.S. at 755. In Edmonds v.
Commonwealth, 189 S.W.3d 558 (Ky. 2006), we observed that "[a] defendant's
eligibility for parole is not a 'direct consequence' of a guilty plea the ignorance
of which would render the plea involuntary." 189 S.W.3d at 567 (quoting from
Armstrong v. Egeler, 563 F.2d 796, 799-800 (6th Cir. 1977)). While the trial
court was certainly free to ask the parties whether they had considered the
violent offender statute, the trial court's not having done so here does not
render Stiger's plea involuntary. Cf. Smith v. State, 697 S.E.2d 177 (Ga. 2010)
(Post-Padilla, the Due Process Clause, as opposed to the Sixth Amendment,
still requires only that a defendant pleading guilty be apprised of a guilty plea's
direct consequences.).
III. Counsel's Alleged Misadvice Regarding Parole Eligibility Does Not
Entitle Stiger to Relief Because it Was Not Prejudicial.
That brings us then to Stiger's claim that his guilty plea is invalid under
the Sixth Amendment of the U.S. Constitution because his attorney misadvised
him that if he accepted the Commonwealth's twenty-year plea offer he would be
eligible for parole in four years, whereas, because Stiger was pleading guilty to
offenses within the violent offender statute, KRS 439.2401, he in fact will not
be eligible for parole until he has served seventeen years. As Stiger correctly
observes, to be entitled to relief from a guilty plea on the ground of ineffective
assistance of counsel, a RCr 11.42 movant must show both that counsel
provided deficient assistance and that he, the movant, was prejudiced as a
result. Strickland, 466 U.S. at 687. As discussed in Commonwealth v.
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Pridham, S.W.3d , (October 25, 2012) also rendered today, in light of the
Supreme Court's application of Strickland in Padilla, we agree with Stiger that
counsel's alleged failure to take the violent offender statute into account when
giving advice about parole eligibility would constitute, if proven, deficient
performance.
In Padilla, the Supreme Court held that counsel's alleged incorrect advice
to his non-citizen client that a guilty plea to drug charges would not affect his
immigration status, when in fact the drug conviction meant virtually automatic
deportation, amounted to deficient performance under Strickland. The Court
emphasized the penalty-like effect of deportation, the extreme severity of
deportation as a sanction, and the close relation of deportation to the criminal
sentence, since in many cases, including Padilla's, deportation was a virtually
automatic consequence of the conviction. 130 S. Ct. at 1480-83. The Court
also noted how, in light of those considerations, a wide array of professional
associations concerned with standards of legal practice had come to regard the
guilty plea's effect on immigration status as a critical part of the plea advice an
attorney provides to a non-citizen. Id. at 1482. In Pridham, we held that the
parole eligibility consequences imposed by the violent offender statute were
sufficiently penalty-like, severe, and enmeshed with the sentence to be deemed
like deportation, and that the statute was clear and explicit so the
consequences could be easily determined by simply reading the statute, as with
the relevant statute in Padilla. Thus, we held that counsel had a duty
accurately to apprise his client of the violent offender statute's effect on his
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parole eligibility. 2 Counsel's alleged misadvice to Stiger, therefore, would
satisfy Strickland's deficiency prong.
That is not the end of the matter, however, for under Strickland Stiger
must also establish that he was prejudiced by counsel's alleged misadvice. To
establish prejudice,
a challenger must demonstrate "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. [Strickland 466 U.S.] at 694, 104 S. Ct. 2052. It is
not enough "to show that the errors had some conceivable
effect on the outcome of the proceeding." Id., at 693, 104 S. Ct.
2052. Counsel's errors must be "so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable." Id., at
687, 104 S. Ct. 2052.
Harrington v. Richter, U.S. , 131 S. Ct. 770, 787-88 (2011).
In assessing prejudice under Strickland,
the question is not whether a court can be certain counsel's
performance had no effect on the outcome . . . Instead,
Strickland asks whether it is "reasonably likely" the result
would have been different. [Strickland], at 696, 104 S. Ct.
2052. This does not require a showing that counsel's actions
`more likely than not altered the outcome,' but the difference
between Strickland's prejudice standard and a more-probable-
than-not standard is slight and matters 'only in the rarest
case.' Id., at 693, 697, 104 S. Ct. 2052. The likelihood of a
different result must be substantial, not just conceivable. Id.,
at 693, 104 S. Ct. 2052.
2 We remanded Pridham's case for an evidentiary hearing because he alleged
that even if the facts made acquittal unlikely he had a realistic chance of a lower
sentence. On remand, the trial court must determine after an evidentiary hearing
whether the alleged erroneous advice was, in fact, given and if so whether it would
have been rational under the circumstances for Pridham to forego the thirty-year plea
bargain for a trial, which would expose him to a sentence of twenty years to life on one
charge of manufacturing methamphetamine, second or subsequent offense, a Class A
felony.
11
Harrington, 131 S. Ct. at 791-92 (citation omitted).
In the guilty plea context, 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."' Premo v.
Moore, U.S. , 131 S. Ct. 733, 743 (2011) (quoting from Hill v. Lockhart,
474 U.S. 52, 59, 106 S. Ct. 366 (1985)). In Padilla, the Supreme Court stated
that "to 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." 130 S. Ct. at 1485. See also Williams v.
Commonwealth, 336 S.W.3d 42 (Ky. 2011). As noted above, at 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. 3 See, e.g.,
United States v. Arteca, 411 F.3d 315, 322 (2nd Cir. 2005). 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. We are not
persuaded that Stiger has met his burden of alleging prejudice.
If the prejudice prong of Strickland/ Hill were satisfied by the movant simply
3
saying he would not have taken the deal absent the misadvice, it would be rendered
essentially meaningless. "Prejudice" requires more than a simple self-serving
statement by the movant.
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The question is whether, had Stiger been made aware of the violent
offender statute and its effect on his eligibility for parole, there is a reasonable
probability that he would have rejected the Commonwealth's plea offer and
taken his chances at trial. Using Padilla's language, would it have been a
"rational" decision to reject the twenty-year plea deal under the circumstances?
Even at this stage, we can say with assurance that it would not have been a
rational decision.
As noted, Stiger faced five counts of first-degree robbery, for all of which
the Commonwealth's evidence appears to have been formidable, and an
allegation of first - degree PFO. Stiger maintains that there is some question
about one of his prior convictions and about the admissibility of his confession
to the two video store robberies, but there does not appear to be any doubt that
Stiger was at least a second-degree PFO, and there were victims ready to
identify him as the perpetrator of at least three of the five robberies. Stiger has
alleged no defenses to those three robberies. 4 As a PFO of either degree, had
Stiger been convicted of even one first-degree robbery, he would have been
subject to a minimum sentence of twenty years—the sentence he received
under the plea bargain—and would also have been subject to the violent
offender statute's parole eligibility restrictions. It thus appears that Stiger's
chances of improving on his outcome by going to trial were not just exceedingly
slim, but virtually non-existent. His chances of faring worse, on the other
4 As noted infra, two of the robberies involved men who had met Stiger
previously and thus knew him although they did not know his name.
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hand, were considerable. As noted, the Commonwealth had substantial
evidence of seven class B felonies, several of which involved significant acts of
violence. That evidence together with Stiger's status as a repeat offender would
have made for a high risk at trial of a sentence far above the twenty-year
minimum. While it is true that even had things gone against Stiger at trial his
parole ineligibility would have been extended, at most, from seventeen years to
twenty, parole eligibility would not have been his only concern. Stiger was in
his twenties at the time of his plea, so the difference between the twenty-year
sentence offered to him and the much longer sentence (potentially seventy
years or life) he would have risked at trial was very real. Because Stiger thus
had little, if any, chance of improving his outcome at trial, but could easily
have fared far worse, we are not persuaded that, had he been correctly advised
about the parole consequences of his plea, there is a reasonable probability
that he would have rejected the plea bargain and insisted upon a trial. It
simply would not have been a "rational" choice under the circumstances. Cf.
Premo, 131 S. Ct. at 744-45 (upholding a state court's finding of no prejudice
where the prosecutor's evidence was "strong," the defendant faced "grave
punishments" and the plea bargain was for "the statutory minimum for the
charged offense.") Having failed adequately to allege any prejudice flowing from
counsel's alleged misadvice, Stiger is not entitled to Strickland relief.
CONCLUSION
In sum, although we agree with Stiger that counsel renders deficient
assistance under Padilla and Strickland when his guilty plea advice does not
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accurately reflect the parole consequences apparent from a reading of the
violent offender statute, the deficient performance alleged in this case does not
entitle Stiger to relief, because it could not have resulted in any prejudice.
Stiger has not alleged a viable defense to any of the several serious charges
against him, so had he faced trial there is no reason to believe that he would or
could have fared better than he did by pleading guilty and accepting the
minimum possible sentence. Indeed, given the strength of the prosecution's
evidence on the multitude of charges, there is every reason to think that he
would have fared worse. Under those circumstances, there is no reasonable
probability that Stiger with the benefit of correct advice, would have rejected
the plea deal and gone to trial. That being the case, it cannot be said that
counsel's alleged misadvice induced Stiger's plea. Accordingly, we hereby
affirm the decision of the Court of Appeals.
Minton, C.J.; Cunningham, Noble, Scott, and Venters, JJ., concur.
Schroder, J., not sitting.
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COUNSEL FOR APPELLANT:
Amy Robinson Staples
Margaret Anne Ivie
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 301
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentucky
Tami Renee Stetler
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
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