APPEALS FROM FLEMING CIRCUIT COURT HONORABLE STOCKTON B. WOOD, JUDGE ACTION NOS. 10-CR-00065 AND 10-CR-00114
The opinion of the court was delivered by: Caperton, Judge:
RENDERED: FEBRUARY 22, 2013; 10:00 A.M.
BEFORE: CAPERTON, DIXON, AND TAYLOR, JUDGES.
The Appellant, James Ray Dehart, was convicted by a guilty plea of burglary in the third degree, two counts of theft by unlawful taking, and burglary in the second degree, all enhanced by a conviction for persistent felony offender in the first degree. Dehart was ultimately sentenced to fifteen years' imprisonment. Dehart asserts that he pled guilty under the belief that he would be eligible for parole after serving either fifteen or twenty percent of his sentence, and that upon realizing that he was instead subject to serve a minimum of ten years, filed a motion to withdraw his guilty plea, which was denied. He now appeals the circuit court order denying his motion to withdraw guilty plea, arguing first that his plea was not knowing, intelligent, and voluntary, and secondly, that his trial counsel had a conflict of interest. Upon review of the record, the arguments of the parties, and the applicable law, we reverse and remand this matter for additional proceedings consistent with this opinion.
As noted, Dehart pled guilty to burglary and receiving stolen property.*fn1 Dehart was represented by the Honorable Jerry Anderson. Dehart was instructed by the court that he could talk with his counsel if he did not understand any portion of the plea process. The court reviewed both indictments and all of the charges with Dehart, who then pled guilty to each one. Dehart indicated that he understood the charges, that his judgment was not impaired, and that he was not under the influence. He further indicated that he was aware of the various rights associated with trial which he was forfeiting in order to plead guilty.
Dehart indicated an understanding that for burglary in the third degree and theft in Indictment 10-CR-00065, he could receive one to five years on each, enhanced to ten to twenty years as a persistent felony offender (PFO). He also indicated an understanding that in Indictment 10-CR-00114, he could receive five to ten years for burglary in the second degree, and one to five years for theft, enhanced to ten to twenty years as a PFO. Dehart indicated that he understood that each count could be enhanced to a maximum of twenty years as a PFO.
During his plea colloquy, Dehart expressed concern only with respect to parole eligibility. The following exchange occurred between Dehart and the court:
Court: What's the Commonwealth's recommendation on this?
Court: Total of 15? On all?
Dehart (addressing Court): Can you tell me if ...