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Marshall v. Commonwealth6/3/2005
AFFIRMING
BEFORE: GUIDUGLI, McANULTY, AND MINTON, JUDGES.
Anthony Wayne Marshall appeals the order of the McCracken Circuit Court denying his motion pursuant to RCr 11.42 to vacate his conviction and sentence. He argues on appeal that the court should have appointed counsel for him and conducted an evidentiary hearing on his motion.
In April 2002, Marshall was indicted by a McCracken County Grand Jury for two counts of assault in the first degree and with driving a motor vehicle under the influence of alcohol/drugs (DUI). The charges followed Marshall's January 19, 2002 collision with a vehicle driven by William McManus and in which Laura Cope was a passenger. According to the bill of particulars, McManus and Cope suffered "severe whiplash" and both required "extensive physical therapy."
Marshall was appointed counsel. On July 31, 2002, Marshall signed an agreement with the Commonwealth to enter a guilty plea to the DUI count and two amended counts of assault in the second degree. In return for the guilty plea, the Commonwealth recommended sentences of 30 days to serve on the DUI charge and ten years for each assault count, to run concurrently for a total of ten years. On that same date, Marshall filed a motion to enter a guilty plea on those charges, and the court accepted the plea. The court subsequently sentenced Marshall to a total sentence of ten years in accordance with the plea agreement.
In October 2003, Marshall filed a pro se motion pursuant to RCr 11.42 alleging that his counsel was ineffective and his guilty plea was involuntary. Marshall argued that his counsel failed to fully and properly investigate the facts of the charged offenses, and as a result erroneously advised Marshall to plead guilty. He claimed in particular that his counsel failed to investigate whether the victims suffered serious physical injury. Assault in the second degree, as it applies in this case, is established by showing that a person wantonly caused serious physical injury to another person by means of a deadly weapon or dangerous instrument. KRS 508.020(1)(c). Marshall moved for appointment of counsel and for a full evidentiary hearing.
The Commonwealth's response stated that it was without sufficient knowledge whether counsel fully investigated the extent of injury of the victims. But the Commonwealth noted that Marshall alleged when he was entering his plea it was knowing, willing and voluntary, and he received a lesser sentence since his counsel negotiated a plea to reduced charges. The Commonwealth asserted that the motion should be denied without hearing or the appointment of counsel because the record showed that the claim was without merit. Without conducting an evidentiary hearing, the trial court entered an order denying the motion without setting forth the reasons therefor. Marshall appeals that order.
Marshall argues that there is an issue not refuted by the record as to whether counsel investigated the facts of his case before advising him to plead guilty. Marshall states that his trial attorney told him that simply being hurt was enough to establish the "serious physical injury" element of assault in the second degree. Marshall asserts that only after he pled guilty was he given access to the victims' medical records, and he discovered that the victims were not seriously injured in the accident. Thus, he believes ineffectiveness was shown because he believes he could not have been found guilty of the charges to which he pled guilty. Marshall maintains, moreover, that due to counsel's failure his plea was not entered knowingly, intelligently, and voluntarily.
The Commonwealth asserts that appellant wa
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