concurring:
I agree with the majority Stull is not eligible for probation and, therefore, concur. However, I write separately to express my concern regarding the circumstances under which Stull entered his guilty plea, specifically, the erroneous impression left by the Commonwealth’s plea offer that it could take a position regarding probation and, therefore, probation was a possibility.
The United States Supreme Court has become increasingly aware that our modern criminal system is a system of plea negotiations and not trials. “The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages.” Missouri v. Frye, — U.S.-, 132 S.Ct. 1399, 1407, 182 L.Ed.2d 379 (2012). Following the reasoning of the United States Supreme Court, in Commonwealth v. Pridham, 394 S.W.3d 867, 878 (Ky.2012), our Supreme Court held “the sharply extended period of parole ineligibility is a serious enough and certain enough detriment that a person pleading guilty is entitled to know about it.”
As in the case of parole eligibility in Pridham, the law in this case was succinct and clear Stull could not be probated if he pled guilty because he qualified as a violent offender. Under the circumstances, the Commonwealth’s promise to Stull it would take no position on probation brings to the forefront whether Stull’s counsel properly informed him of his probation eligibility and, if not, whether he would have pled guilty had he been aware he could not be probated. I write only to point out what appears to be a possible basis for future relief under Kentucky Rules of Criminal Procedure 11.42 or Kentucky Rules of Civil Procedure 60.02. Because this is a direct appeal, I concur.