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Osborne v. Commeweatlh of Kentucky11/13/1998
RENDERED: November 13, 1998; 2:00 p.m. TO BE PUBLISHED
Commonwealth Of Kentucky Court Of Appeals
APPEAL FROM MCCRACKEN CIRCUIT COURT HONORABLE RON DANIELS, JUDGE ACTION NO. 95-CR-000021
OPINION REVERSING AND REMANDING
Patrick Osborne (Osborne) appeals from an order of the McCracken Circuit Court denying his RCr 11.42 motion to: (1) vacate his conviction; and/or, (2) hold an evidentiary hearing on the merits of his allegation claiming ineffective assistance of counsel. We reverse and remand for an evidentiary hearing.
In January 1995, Osborne was indicted on one count of driving under the influence (DUI), fourth offense, and one count of driving with a revoked license. On February 17, 1995, the court appointed trial counsel for Osborne. In April 1995, appellant, through counsel, filed a motion to suppress a prior 1992 DUI conviction in an effort to prevent it from being used to enhance his current DUI offense. The trial court denied that motion on May 4, 1995.
On June 26, 1995, prior to a scheduled pretrial conference, the Commonwealth filed a bill of particulars which included a plea bargain offer of five (5) years on the DUI charge and twelve (12) months on the revoked license charge, in exchange for Osborne's plea of guilty to these offenses. Furthermore, a superseding indictment was returned against Osborne containing the two original counts and a third count of being a first-degree persistent felony offender (PFO I). Although Osborne contends he communicated with counsel his desire to accept this offer, no such acceptance was forthcoming.
The pretrial hearing was held on June 30, 1995, at which time the Commonwealth proposed to dismiss the PFO I charge in exchange for Osborne proceeding to trial by July 5, 1995. Again, Osborne posits that, while he was amenable to this arrangement, trial counsel refused, insisting the matter would be remanded to district court upon the granting of the motion to suppress Osborne's prior DUI conviction. Consequently, the matter was continued for trial in late October, with the date ultimately set for November 8, 1995.
On November 1, 1995, one week prior to trial, the Commonwealth approached Osborne with an offer of seven (7) years for a plea of guilty. Once again, Osborne contends he wanted to accept this offer but his attorney would not permit him to do so. A jury trial was held on November 8, 1995, resulting in Osborne's conviction of DUI, fourth offense, and PFO I. On December 12, 1995, the trial court sentenced Osborne to five (5) years on the DUI conviction, and enhanced that term to twenty (20) years due to his PFO I status.
On direct appeal, the Kentucky Supreme Court affirmed Osborne's conviction and sentence in an unpublished opinion. In May 1997, Osborne, pro se, filed an RCr 11.42 motion to vacate his sentence alleging, inter alia, his attorney rendered ineffective assistance through failure to: (1) comply with his desire to accept the Commonwealth's initial plea offer of June 1995, and subsequent offer of November 1995; (2) accept the Commonwealth's offer to dismiss the PFO I charge in exchange for trial by July 5, 1995; and, (3) advise him of the benefits accompanying the Commonwealth's plea offers and dangers posed by a jury trial. Current counsel was appointed to assist Osborne and proceeded to file a motion for a full evidentiary hearing. On August 15, 1997, the court denied both the RCr 11.42 motion and the motion for an evidentiary hearing. This appeal ensued.
Osborne argues his court-appointed trial attorney rendered ineffective assistance in failing to: (1) present a defense compelling dismissal of the PFO I charge; (2) pro
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