FROM GRAYSON CIRCUIT COURT HONORABLE ROBERT A. MILLER, JUDGE
ACTION NO. 11-CR-00087
FOR APPELLANT: Christine Foster Assistant Public Advocate
FOR APPELLEE: Andy Beshear Attorney General of Kentucky Emily
Bedelle Lucas Assistant Attorney General Frankfort, Kentucky.
BEFORE: ACREE, JOHNSON  AND SMALLWOOD, JUDGES.
Fegan appeals from the denial of his Kentucky Rules of
Criminal Procedure (RCr) 11.42 motion alleging ineffective
assistance of trial counsel. Fegan raises four allegations of
ineffective assistance of counsel on appeal. Finding no
error, we affirm.
8, 2011, Deputy Jason White observed a vehicle driven by
Fegan cross the yellow lines on the road three times. Deputy
White attempted to initiate a traffic stop, but Fegan did not
stop. Fegan's vehicle, while traveling at a high rate of
speed, hit a ditch on the side of the road and flipped. After
the car came to a stop, Fegan jumped out and ran to the side
of the road where he was apprehended by Deputy White. Erica
Manly was a passenger in the car and was severely injured.
Manly was removed from the car and taken to the hospital;
however, Fegan remained at the scene and was asked to allow
the police to search the vehicle. Fegan alleges that he
allowed officers to search the passenger compartment, but not
the trunk. Fegan claims he told officers that the vehicle was
not his and that they would need the owner's permission
to search the trunk. The Commonwealth claims that Fegan
allowed the police unrestricted access to search the entire
car. The police searched the trunk and found numerous items
related to the manufacturing of methamphetamine.
and Manly were arrested and charged with several crimes
related to the police pursuit and manufacturing of
methamphetamine. On October 23, 2012, Fegan entered a guilty
plea to charges of manufacturing methamphetamine, fleeing or
evading police, and being a persistent felony offender in the
second degree. He was sentenced to twenty years'
August 1, 2013, Fegan filed the underlying RCr 11.42 motion
to vacate his sentence due to ineffective assistance of
counsel. An evidentiary hearing was held on January 6, 2017,
where both he and his trial counsel testified. On August 10,
2017, the court entered an order denying Fegan's motion.
This appeal followed.
claims on appeal that had his counsel been effective, he
would not have pled guilty. He raises four issues alleging
ineffective assistance of counsel.
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.
Evaluating the totality of the circumstances surrounding the
guilty plea is an inherently factual inquiry which requires
consideration of "the accused's demeanor, background
and experience, and whether the record reveals that the plea
was voluntarily made." While "[s]olemn declarations
in open court carry a strong presumption of verity,"
"the validity of a guilty plea is not determined by
reference to some magic incantation recited at the time it is
taken [.]" The trial court's inquiry into
allegations of ineffective assistance of counsel requires the
court to determine whether counsel's performance was
below professional standards and "caused the defendant
to lose what he otherwise would probably have won" and
"whether counsel was so thoroughly ineffective that
defeat was snatched from the hands of probable victory."
Because "[a] multitude of events occur in the course of
a criminal proceeding which might influence a defendant to
plead guilty or stand trial," the trial court must
evaluate whether errors by trial counsel significantly
influenced the defendant's decision to plead guilty in a
manner which gives the trial court reason to doubt the
voluntariness and validity of the plea.
Bronk v. Commonwealth, 58 S.W.3d 482, 486-87 (Ky.
2001) (citations omitted).
Judicial scrutiny of counsel's performance must be highly
deferential. It is all too tempting for a defendant to
second-guess counsel's assistance after conviction or
adverse sentence, and it is all too easy for a court,
examining counsel's defense after it has proved
unsuccessful, to conclude that a particular act or omission
of counsel was unreasonable. A fair assessment of attorney
performance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at the
time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances,
the challenged ...