RENDERED: OCTOBER 2, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0058-MR
DEVONTE’ WEBB APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 14-CR-00354-002
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND LAMBERT, JUDGES.
ACREE, JUDGE: DeVonte’ Webb appeals the Fayette Circuit Court’s August 21,
2018 order denying his RCr1 11.42 motion for postconviction relief. After careful
review, we affirm.
1
Kentucky Rules of Criminal Procedure.
BACKGROUND
In October 2012, Webb, along with two others, robbed six University
of Kentucky students at gunpoint. Webb was indicted on five counts of robbery in
the first degree. He was subsequently charged with being a second-degree
persistent felony offender.
At a pre-trial conference held on April 24, 2014, the Commonwealth
offered Webb a sentence of ten years in exchange for a guilty plea. Webb
contends his counsel, in advising him whether to accept the plea offer, stated the
Commonwealth’s case was “weak,” and he believed they could win at trial.
According to Webb, he rejected the offer based on his counsel’s assurances.
Webb was tried by a jury and convicted on all counts. He was
sentenced to twenty-seven years in prison. The Kentucky Supreme Court affirmed
his conviction. Webb v. Commonwealth, No. 2015-SC-000198-MR, 2017 WL
5504420, at *12 (Ky. Mar. 23, 2017). Thereafter, he filed a pro se motion for
postconviction relief, alleging ineffective assistance of trial counsel. The circuit
court denied relief without conducting an evidentiary hearing. This appeal
followed.
STANDARD OF REVIEW
Every defendant is entitled to reasonably effective, but not necessarily
errorless, counsel. Fegley v. Commonwealth, 337 S.W.3d 657, 659 (Ky. App.
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2011). In evaluating a claim of ineffective assistance of counsel, we apply the
familiar “deficient-performance plus prejudice” standard first articulated in
Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d
674 (1984). This standard applies equally when defendants allege they declined a
plea offer in favor of going to trial, based on counsel’s ineffectiveness. See
Osborne v. Commonwealth, 992 S.W.2d 860, 864 (Ky. App. 1998).
Under Strickland, the movant must first prove his counsel’s
performance was deficient by demonstrating counsel’s representation “fell below
an objective standard of reasonableness” such that “counsel was not functioning as
the ‘counsel’ guaranteed by the Sixth Amendment[.]” Commonwealth v. Tamme,
83 S.W.3d 465, 469 (Ky. 2002). In this context, we inquire whether counsel
sufficiently communicated to his client what “risks were attendant to trial versus
the benefits to be gained vis á vis a plea bargain[.]” Osborne, 992 S.W.2d at 864.
Second, the movant must prove counsel’s “deficient performance
prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In this
context, the movant must show:
that but for the ineffective advice of counsel there is a
reasonable probability that the plea offer would have
been presented to the court (i.e., that the defendant would
have accepted the plea and the prosecution would not
have withdrawn it in light of intervening circumstances),
that the court would have accepted its terms, and that the
conviction or sentence, or both, under the offer’s terms
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would have been less severe than under the judgment and
sentence that in fact were imposed.
Lafler v. Cooper, 566 U.S. 156, 164, 132 S. Ct. 1376, 1385, 182 L. Ed. 2d 398
(2012).
ANALYSIS
When Webb brought his motion before the circuit court, he argued
four different grounds for relief pursuant to RCr 11.42. In this appeal, he abandons
all but one of those grounds. To better understand why the circuit court ruled as it
did, we shall set forth Webb’s argument as presented there.
The pertinent paragraph of his motion to the circuit court states, in its
entirety, as follows:
5. At Movant’s first pretrial hearing, Assistant
Commonwealth’s Attorney, Alexander Garcia, offered
him a plea deal on all indicted offenses for a total of ten
(10) years to serve with a parole eligibility of 85%.
Movant’s counsels were ineffective for advising him to
reject the Commonwealth’s plea offer, stating “that they
(Commonwealth) did not really have anything against him
and their case was weak, and they could not win at trial.”[2]
In fact, the evidence against Movant was significant, if not
impervious. The jury found Movant guilty of the five (5)
first-degree robbery counts and he was sentenced to
fifteen-year sentences each to run concurrently, enhanced
to twenty-seven (27) years by a second-degree persistent
felony offender (PFO) conviction, which also requires
2
Obviously, this cannot be a direct quote because it is in the past tense and refers to Webb in the
third person.
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85% service of sentence to be eligible for parole pursuant
to KRS[3] 439.3401.
(Motion to Vacate, Set Aside or Correct Sentence, Record (R.) at 213B.)
In addition to the motion for postconviction relief, Webb filed a
twenty-three-page supporting memorandum of law. The section addressing this
specific issue on appeal comprises slightly more than two pages of the
memorandum. The first paragraph of that section is a verbatim repetition of
paragraph 5 of his motion, quoted above. We quote the remaining portions of that
memorandum to the extent they are pertinent, as follows:
C. Movant was denied the right to effective assistance of
counsel in whether to accept a favorably offered plea
bargain.
[The next paragraphs after the repetition of paragraph 5
from the motion set out general legal principles related to
ineffective assistance of counsel and specific
jurisprudence regarding assistance of counsel during plea
negotiations.]
Movant’s attorney was ineffective by providing him with
erroneous legal advice to not accept the Commonwealth’s
favorable offer, when counsel had not provided Movant
with a viable defense to the evidence against him. Movant
was prejudiced because he “lost out on the opportunity to
plead guilty and receive the lower sentence that [was]
offered to him.” Lafler v. Cooper, 132 S.Ct. 1376, 1384,
182 L.Ed.2d 398 (2012). The Commonwealth offered to
settle this case for a sentence far less than 27 years, 10
years in fact, but Movant’s lawyer advised him not to
accept the offer based on erroneous legal advice “that they
3
Kentucky Revised Statutes.
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(Commonwealth) did not really have anything against him
and their case was weak, and they could win at trial.”
Under Lafler and Strickland this Court must vacate
Movant’s conviction and order the Commonwealth to
reinstate the previous offer.
(R. at 231N to 231P.)
We agree with Webb that “a defendant has the right to effective
assistance of counsel in considering whether to accept [a plea offer].” Lafler, 566
U.S. at 168, 132 S. Ct. at 1387. Webb asserts his counsel’s only advice was “the
Commonwealth’s case was weak, and he believed they could win at trial.” He
contends this falls well below Strickland’s deficiency standard. We disagree.
It is essential to note that nowhere in the motion or memorandum does
Webb allege his counsel failed to apprise him of: (1) the elements of first-degree
robbery; (2) the Commonwealth’s evidence and how it could be used to prove first-
degree robbery; (3) the minimum and maximum sentences based on the potential
outcomes of trial; and (4) the strengths and weaknesses of his case. Allusion to
such allegations appears for the first time in his brief to this Court.
“[A]n allegation of ineffective assistance of counsel does not state
grounds for relief unless the petition alleges sufficient facts to show that the
representation of counsel was inadequate.” Thomas v. Commonwealth, 459
S.W.2d 72, 72 (Ky. 1970). Before the circuit court, Webb alleged no deficiency of
counsel’s performance other than counsel’s urging him to reject the offer without
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telling Webb what the defense would be. Surely, Webb knew his defense was that
he did not commit the crime.
Webb’s motion in the circuit court for postconviction relief was based
solely on a relatively general allegation that counsel gave him bad advice. He did
not base the charge of ineffective assistance on even his own assertion of
contemporaneous facts that counsel failed him in some specific way. Rather,
Webb’s best evidence is that the jury’s verdict proved the advice to be bad. That is
never sufficient cause to require an evidentiary hearing on an RCr 11.42 motion,
much less to grant the motion.
CONCLUSION
Based on the foregoing, we affirm the Fayette Circuit Court’s August
21, 2018 order denying Webb’s RCr 11.42 motion for postconviction relief.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Andrea Reed Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Leilani K.M. Martin
Assistant Attorney General
Frankfort, Kentucky
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