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RENDERED: JUNE 17, 2021
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2020-SC-0041-DG
COMMONWEALTH OF KENTUCKY APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. NO. 2019-CA-0525
JEFFERSON CIRCUIT COURT NO. 16-CR-000661
ERIC L. GIBSON APPELLEE
MEMORANDUM OPINION OF THE COURT
REVERSING
The Commonwealth appeals the Court of Appeals’ reversal of the
Jefferson Circuit Court’s denial of Eric L. Gibson’s (Gibson) pro se motion to
vacate, set aside, or correct his sentence pursuant to RCr1 11.42. After review,
we reverse.
I. FACTUAL AND PROCEDURAL BACKGROUND
Gibson’s underlying convictions are the result of two separate
indictments, 16-CR-0661 and 17-CR-1799.
The first, 16-CR-0661, charged Gibson with being a convicted felon in
possession of a firearm, receiving a stolen firearm, and being a first-degree
persistent felony offender (PFO I). Gibson was arrested outside The Executive
1 Kentucky Rule of Criminal Procedure.
Club, a nightclub, in the early morning hours of January 24, 2016. Gibson, a
convicted felon, was in possession of a firearm upon his arrest. Subsequently,
the firearm was discovered to have been reported stolen. A trial on those
charges was scheduled for February 14, 2017. However, in October of 2016,
Gibson failed to return to the Jefferson County Jail after being released as a
work aide. He was apprehended five months later at which time he was
charged with second-degree escape under indictment 17-CR-1799.
A plea colloquy on both indictments was held in November of 2017. In
exchange for Gibson’s guilty plea on all the outstanding charges, the
Commonwealth offered to amend the PFO I charge down to a second-degree
persistent felony offender charge (PFO II). In addition, it would recommend five
years each on the charges of receiving a stolen firearm and felon in possession
of a firearm—both enhanced to ten years each by virtue of the PFO II charge—
to run concurrently for a total of ten years. It would also recommend five years
on the second-degree escape charge, which had to run consecutively to the
other charges by law. Gibson’s guilty plea would therefore result in a fifteen-
year sentence with parole eligibility after he had served 20% of his sentence
due to the PFO II charge, as opposed to serving a minimum of ten years which
would have been the result of a PFO I conviction.2
Before accepting Gibson’s guilty plea, the trial court established that
Gibson had a twelfth-grade education and could read and write. The court
2 See Kentucky Revised Statute (KRS) 532.080(6)(b).
2
then placed Gibson under oath and conducted a typical Boykin3 line of
questioning. Gibson represented to the court that he was satisfied with his
attorney’s advice, that he had all the time he needed to talk to his attorney,
and that as far as he knew his attorney had done all that Gibson had asked
him to do. Gibson further affirmed that he read, understood, and went over
the plea agreements with counsel before signing them. Gibson was not under
the influence of anything during the plea colloquy and had never been treated
for mental health issues, nor had he ever been found to be incompetent by a
court. The court explained Gibson’s rights as a criminal defendant to him, and
he acknowledged that he was giving up those rights, save for his right to an
attorney, by pleading guilty. Gibson further agreed that he knew what he was
doing by pleading guilty, and felt that doing so was in his best interest. And,
no one had coerced him into pleading guilty or made any promises to him for
pleading guilty.
The trial court accepted Gibson’s pleas of guilty to receiving a stolen
handgun, being a felon in possession of a handgun, second-degree escape, and
being a PFO II. The court scheduled final sentencing for January of 2018. No
motion to withdraw the plea was filed in the interim.4 At sentencing, the trial
court sentenced Gibson in accordance with the Commonwealth’s
recommendations: a total of fifteen years imprisonment, with parole eligibility
3 Boykin v. Alabama, 395 U.S. 238, (1969).
4 See RCr 8.10 (“At any time before judgment the court may permit the plea of
guilty or guilty but mentally ill, to be withdrawn and a plea of not guilty substituted.”).
3
after serving 20% of his sentence. The trial court noted Gibson already had
accumulated 571 days of time served.
Eight months later, in September of 2018, Gibson filed a pro se motion to
vacate, set aside, or correct his sentence under RCr 11.42. The trial court
denied the motion without holding an evidentiary hearing. A divided Court of
Appeals reversed the trial court and held that an evidentiary hearing on
Gibson’s motion was necessary. The Commonwealth now appeals that ruling
to this Court.
Additional facts are discussed below as necessary.
II. ANALYSIS
Gibson asserts that the trial court erred by denying his RCr 11.42
motion. Specifically, he alleges that his counsel’s performance was ineffective
to the point of rendering his guilty plea invalid, and that his plea should
therefore be vacated. The United States Supreme Court ruled in Strickland v.
Washington that
[a] convicted defendant's claim that counsel's assistance was so
defective as to require reversal of a conviction or death sentence
has two components. 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.5
5 466 U.S. 668, 687, (1984).
4
When a defendant pleads guilty, he must satisfy the “prejudice prong” of the
Strickland test by showing “that there is a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and would have insisted on
going to trial.”6 When ruling on an RCr 11.42 motion, the trial court must
determine “whether the allegations in the motion can be resolved on the face of
the record, in which event an evidentiary hearing is not required.”7 An RCr
11.42 motion 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.”8 A trial court must dismiss an RCr 11.42 motion that lacks this
requisite specificity.9 When addressing a trial court’s denial of an RCr 11.42
motion, we review a trial court’s factual findings for clear error and its
application of law to the facts de novo.10
Gibson primarily presents two arguments: (1) that his counsel failed to
raise a choice of evils defense; and (2) that his counsel allowed him to plead
6 Hill v. Lockhart, 474 U.S. 52, 58–59, (1985), accord Bronk v. Commonwealth,
58 S.W.3d 482, 486-87 (Ky. 2001) (“A showing that counsel's assistance was
ineffective in enabling a defendant to intelligently weigh his legal alternatives in
deciding to plead guilty has two components: (1) that counsel made errors so serious
that counsel's performance fell outside the wide range of professionally competent
assistance; and (2) that the deficient performance so seriously affected the outcome of
the plea process that, but for the errors of counsel, there is a reasonable probability
that the defendant would not have pleaded guilty, but would have insisted on going to
trial.”).
7 Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001).
8 RCr 11.42(2).
9 Id.
10 Stiger v. Commonwealth, 381 S.W.3d 230, 234 (Ky. 2012).
5
guilty to a crime he did not commit. Attendant to these arguments are
Gibson’s claims that his counsel did not know the law and failed to conduct a
proper pre-trial investigation of the facts.11 We will address each argument in
turn.
Gibson first asserts that his counsel failed to raise a choice of evils
defense. When “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.”12
The choice of evils statute, KRS 503.030, provides in pertinent part:
[u]nless inconsistent with the ensuing sections of this code
defining justifiable use of physical force or with some other
provisions of law, conduct which would otherwise constitute an
offense is justifiable when the defendant believes it to be necessary
to avoid an imminent public or private injury greater than the
injury which is sought to be prevented by the statute defining the
offense charged[.]13
Gibson contends that a choice of evils defense would have been available to
him because he feared an imminent attack by an unknown assailant at The
Executive Club. He claims this was the sole reason he asked a friend to give
him the stolen gun he was ultimately caught with. Gibson’s RCr 11.42 motion
expounded that
counsel had a duty to investigate pretrial where and how movant
had obtained the alleged handgun which had been found on his
11 These arguments were properly preserved by his RCr 11.42 motion. See RCr
9.22.
12 Commonwealth v. Elza, 284 S.W.3d 118, 122 (Ky. 2009).
13 KRS 503.030(1).
6
person after the caller called the police. Movant had explained to
his attorney that he had got into an argument with a guy in the
club, the guy pulled a gun on him and his fiancé, the guy walked
outside of the club behind movant and his fiancé, still pointing the
weapon at him stating he would shoot both of them. When movant
and his fiancé exited the club, movant obtained a weapon from a
friend to potentially protect himself and his fiancé from the
aggressor…if [counsel] had conducted sufficient investigation of the
incident early on he would have uncovered these pertinent facts
regarding the incident[.]
[C]ounsel should had (sic) raised the defense of Choice of Evils
where evidence clearly existed that movant’s conduct was
necessitated by a specific and imminent threat of injury to his
person under circumstances which left him no reasonable and
viable alternative, other than the violation of the law for which he
stands charged. The danger presented to movant in the Executive
Club by the unknown potential assailant who accosted movant and
his fiancé and followed them from out of the club behind them was
compelling and imminent, constituting set of circumstances which
afforded him little or no alternative other than the commission of
the act which otherwise would be unlawful.
This was a spur of the moment situation in which if he would not
had armed himself right away he almost certainly would had been
shot right then and there on the spot before the police were called
to diffuse the situation, locking up movant because the other
Individual managed to slip away from the police confrontation
before being singled out as the initial aggressor and instigator of
the entire incident.
However, as the trial court correctly found, the record directly refutes Gibson’s
claim. Two 911 calls were included in discovery. At around 3:30 a.m., the
owner of The Executive Club called 911 and asked for the police. The owner
explained that there was a man waiting outside of the club with a gun in his
left front pocket, and that he said he was waiting on someone to come out of
the club so that he could shoot them. The man was standing outside of the
club waiting for the duration of the four-minute call.
7
The second 911 call was from a male. The caller told dispatch that there
was a man waiting outside The Executive Club who claimed he was going to
shoot someone when they came out. By the time the second call was made,
the police were already arriving on the scene from the first call. The caller
watched the police stop the man he was calling about while he was on the
phone with dispatch. The man police arrested that morning was Gibson, and
the arrest citation noted that he had a handgun sticking out of the left pocket
of his pants.
Thus, the record directly refutes Gibson’s claim that he feared for his life
because an unknown assailant followed him and his fiancé out of the club with
a gun pointed at them. Accounts from two independent eyewitnesses claimed
Gibson was waiting for someone outside of the club for at least four minutes
with the intent to shoot that person when they came outside. Therefore, it is
highly unlikely that a choice of evils defense would have even been available to
him at trial, let alone be successful. Accordingly, the trial court did not err by
finding that Gibson’s guilty plea was not rendered invalid due to counsel’s
failure to raise a choice of evils defense.
Gibson next contends that counsel allowed him to plead guilty to a crime
he could not have committed. Specifically, that Gibson did not know or have
reason to know that the gun was stolen. Therefore, he argues, he could not be
convicted of receiving a stolen firearm, which requires that he knew or had
8
reason to know that the gun was stolen.14 More specifically, his RCr 11.42
motion maintained that
he did not have the requisite knowledge to commit the charged
offense because he just asked a friend for the weapon because he
felt that the encounter he had with the individual earlier had
reached a boiling point to where he needed protection to arm
himself. He did not know the handgun was stolen, nor did he have
reason to believe it had been stolen which are elemental factors to
committing the offense.
If his trial attorney had conducted basic research which was
fundamental to his case, investigated the facts of this case and
applied the law of the statutory provision he would had discovered
that movant could not had been charged with the offense of
receiving stolen property to begin with, a crime he certainly did not
commit.
It is clear beyond cavil that trial counsel failed to investigate the
case [and] interview movant…instead of allowing movant to plead
guilty to an offense he did not have the requisite knowledge of
having committed where he in no way knew or had reason to
believe that it was stolen, thus, if he not pled guilty but would had
insisted on taking his case to trial he would not had been
convicted of such offense.
Moreover, movant’s trial attorney was ignorant to the point of law
concerning the statutory elements of “knowing” within KRS
514.110, combined with his failure to perform basic research on
that point of law demonstrates unreasonable performance under
Strickland. This is deficient performance. Prejudice is applied in
this case when counsel coaxed and coerced movant into pleading
guilty to an offense he did not commit, KRS 514.110, where he
received five (5) years, a Class D felony, something he had no
knowledge that the firearm was stolen, or had reason to believe it
had been stolen which was something trial counsel failed to
explain to movant.
14 KRS 514.110(1) (“A person is guilty of receiving stolen property when he
receives, retains, or disposes of movable property of another knowing that it has been
stolen, or having reason to believe that it has been stolen, unless the property is
received, retained, or disposed of with intent to restore it to the owner.”)
9
The Court of Appeals majority held that Gibson’s argument was
sufficiently specific to warrant an evidentiary hearing. In particular, it held:
[w]e believe a hearing is necessary in this case. The arguments
raised by Appellant are specific in that they claim trial counsel
made no effort in this case. Appellant’s interactions with his
counsel are not apparent from the record and would need to be
investigated at a hearing.
Appellant’s arguments can be boiled down to the allegation that
trial counsel made no investigation into the case…Appellant’s
interactions with his trial counsel can only be determined by a
hearing. Appellant has alleged counsel did not investigate the
case, interview witnesses or Appellant himself, discuss the
elements of the crimes with which he was charged, or discuss
possible defenses. Whether these allegations are true cannot be
determined from the record as it is now.15
We disagree with this holding.
First, Gibson’s motion was not sufficiently specific to satisfy RCr 11.42;
Roach v. Commonwealth is instructive.16 Roach challenged the voluntariness of
his guilty plea based on his counsel’s failure to file a motion to suppress a
recorded phone call between Roach and his girlfriend during which he made
incriminating statements.17 Roach claimed the phone call would have been
suppressed because his girlfriend’s consent to record the conversation was
coerced by the police.18 This Court held:
Roach has failed to specify facts supporting his claim that the
girlfriend's consent was “coerced.” He asserts that the police
15Gibson v. Commonwealth, 2019-CA-000525-MR, 2020 WL 113935, *2 (Ky.
App. Jan. 10, 2020).
16 384 S.W.3d 131 (Ky. 2012).
17 Id. at 139-40.
18 Id. at 140.
10
somehow threatened the girlfriend, but he fails to allege the
threat with any particularity, and it is that level of factual
specificity that RCr 11.42(2) requires, for without it the trial
court cannot tell whether an evidentiary hearing is necessary.
If general allegations such as “her consent was coerced by police”
were sufficient, RCr 11.42 would easily be turned into a discovery
device, a result which we have several times noted is contrary to
the rule's purpose. Because Roach's motion did not satisfy RCr
11.42(2)'s specificity requirement, it was subject under the rule to
“summary dismissal,” as the courts below correctly held.19
The Roach Court noted that the level of particularity that RCr 11.42 requires
would have included, for example: “when the girlfriend was threatened; where
she was physically at the time of the threat; who else was present; who made
the threat or, if the identity of the police officer was unknown, a physical
description of the person; and the substance of the threat.”20
Here, the Court of Appeals found that RCr 11.42’s specificity requirement
was met by Gibson’s claim that “trial counsel made no effort in this case.”21
We cannot dispute the logic behind the Court of Appeals’ holding: certainly,
there is no way to know from the record whether Gibson and his counsel
discussed if Gibson knew the gun was stolen, or whether counsel knew that
knowledge was an element of receiving a stolen firearm. However, the Court of
Appeals failed to recognize that Gibson’s motion was not sufficiently specific for
the trial court to find that an evidentiary hearing was necessary. Gibson’s
motion stated that he “asked a friend for the weapon” because he believed “the
19 Id. (emphasis added).
20 Id., n.1.
21 Gibson, at *2.
11
encounter he had with the individual earlier had reached a boiling point to
where he needed protection to arm himself.” But Gibson failed to provide the
name of his “friend” or even a clear timeline of when he got the gun from his
friend. He also provided no facts to support that he did not know or have
reason to know that the gun was not stolen; for example, that he knew the
friend who gave him the gun always carried a gun legally registered to that
friend. The bare assertion that he did not know or have reason to know that
the gun was stolen was not sufficiently specific to warrant an evidentiary
hearing.
Notwithstanding, even if we were to hold that Gibson made a sufficient
showing under the “performance prong” of Strickland, Gibson has failed to
demonstrate that he was prejudiced by his guilty plea. As Judge Maze
discussed in his dissent, the Court of Appeals majority altogether failed to
address the prejudice component of Strickland.22 This was error, as “[a]n error
by counsel, even if professionally unreasonable, does not warrant setting aside
the judgment of a criminal proceeding if the error had no effect on the
judgment…any deficiencies in counsel's performance must be prejudicial to the
defense in order to constitute ineffective assistance under the Constitution.”23
22 Id. at *3.
23 Strickland, 466 U.S. at 691–92.
12
In that vein, Gibson must demonstrate “that there is a reasonable
probability that, but for counsel's errors, he would not have pleaded guilty and
would have insisted on going to trial.”24 Moreover,
a petitioner must convince the court that a decision to reject the
plea bargain would have been rational under the circumstances.
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. 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[.]25
Gibson’s decision to plead guilty in this case guaranteed that he would
be sentenced to fifteen years, with parole eligibility after serving 20% of his
sentence. To reach this deal, the Commonwealth recommended the minimum
sentence for the charge of felon in possession of a handgun,26 and amended
Gibson’s charge of being a PFO I down to a PFO II. In contrast, had Gibson
insisted on going to trial, he risked being sentenced to the maximum on each
charge in addition to a PFO I enhancement:27 10 years for being a felon in
possession of a handgun; 5 years for receiving a stolen firearm;28 5 years for
24 Lockhart, 474 U.S. at 58–59.
25 Stiger, 381 S.W.3d at 237 (internal citations and quotation marks omitted).
26 Being a felon in possession of a handgun is a Class C felony. KRS 527.040.
Class C felonies have an available sentence of no less than five and no more than ten
years. KRS 532.060(2)(c).
27 We recognize that a charge of being a felon in possession of a firearm is
frequently severed and tried separately from other charged offenses. But for the
purpose of this argument we assume all of the charges would be tried together.
28 Receiving a stolen firearm is a Class D felony. KRS 514.110(2)(c) (amended
2021. Class D felonies have an available sentence of no less than one and no more
than five years. KRS 532.060(2)(d).
13
second-degree escape.29 His sentence would have then been enhanced by his
PFO I charge, which would require him to be “sentenced to an indeterminate
term of imprisonment, the maximum of which shall not be less than ten (10)
years nor more than twenty (20) years.”30
Further, had he gone to trial, Gibson’s defense to the charge of receiving
a stolen firearm would have been that he did not know or have reason to know
that the gun was stolen. Presumably, the only way Gibson could present this
defense to the jury would be to testify on his own behalf. A “prosecutor is
entitled to attack a defendant's credibility if the defendant testifies as a witness
on his own behalf.”31 Gibson’s previous felony convictions were ample. In
relevant part, Gibson was convicted in 2003 of one count each of first-degree
robbery, attempted murder, second-degree assault, and possession of a firearm
by a convicted felon, as well as four counts of wanton endangerment. Gibson
was sentenced to twenty-two-years for those crimes, but was apparently
released early. In addition, he was convicted of being a felon in possession of a
firearm in 1996, and of second-degree escape in 1994. Though these
convictions were more than ten years old, if the trial court ruled that their
probative value substantially outweighed their prejudicial effect, there is a
29Second-degree escape is a class D felony. KRS 520.030(2). Class D felonies
have an available sentence of no less than one and no more than five years. KRS
532.060(2)(d).
30 KRS 532.080(6)(b).
31 Tamme v. Commonwealth, 973 S.W.2d 13, 39 (Ky. 1998).
14
possibility that one or all of them could be introduced at trial.32 Testifying on
his own behalf could therefore present a very high risk of harming his
credibility with the jury.
Consequently, Gibson has failed to demonstrate that foregoing his plea
deal and insisting on going to trial would have been a rational decision.
Accordingly, Gibson has failed to prove that he was prejudiced by any
deficiency in his counsel’s performance, and we must reverse.
III. CONCLUSION
Based on the foregoing, we reverse the Court of Appeals.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Daniel Cameron
Attorney General of Kentucky
James C. Shackelford
Assistant Attorney General
COUNSEL FOR APPELLEE:
Eric L. Gibson
32 See KRE 609(b) (“Evidence of a conviction under this rule is not admissible if
a period of more than ten (10) years has elapsed since the date of the conviction
unless the court determines that the probative value of the conviction substantially
outweighs its prejudicial effect.”).
15
Commonwealth of Kentucky v. Eric L. Gibson
Combined Opinion