             IMPORTANT NOTICE
        NOT TO BE PUBLISHED OPINION'

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISIO,N IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
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ACTION.
                                              RENDERED: FEBRUARY 19, 2U1b
                                                     NOT TO BE PUBLISHED

              oSttiarrutt Court of TArttfuritv
                                2014-SC-000303-MR


JARED R. MCSTOOTS                                                     APPELLANT


                  ON APPEAL FROM OHIO CIRCUIT COURT
V.                HONORABLE RONNIE C. DORTCH, JUDGE
                           NO. 13-CR-00096


COMMONWEALTH OF KENTUCKY                                               APPELLEE



                  MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING

      Jared R. McStoots pled guilty to second-degree controlled substance

endangerment to a child, manufacturing methamphetamine (first offense),

fourth-degree controlled substance endangerment to a child, first-degree

wanton endangerment, and second-degree criminal abuse in Ohio Circuit

Court. Accordingly, McStoots was sentenced to twenty years' imprisonment.

He now appeals as a matter of right, Ky. Const. § 110(2)(b), asserting that the

trial court erred by denying his requests to withdraw his guilty plea and hold

an evidentiary hearing on his ineffective assistance of counsel claim. For the

following reasons, we affirm.


                                I. BACKGROUND. •

      McStoots poured drain cleaner into a Styrofoam cup and left it an area

where it was accessible to his girlfriend's children, who were four and two years
old, respectively. The two-year-old child, Susie,' ingested the drain cleaner.

Although McStoots and his girlfriend knew of the child's ingestion of the

cleaner, they did not seek medical treatment for several hours. By the time

McStoots and his girlfriend finally took Susie to the local emergency room, she

was in critical condition and had to be flown to another hospital for treatment.

      Hospital employees reported the incident to the Ohio County Sheriff's

Department. The employees also opined that McStoots and his girlfriend

appeared intoxicated from methamphetamine while at the hospital. As a

result, law enforcement officers obtained a warrant to search McStoots's home.

The search revealed numerous items used in the manufacture of

methamphetamine.

      Consequently, a grand jury indicted McStoots for the following eight

offenses: second-degree controlled substance endangerment to a child, fourth-

degree controlled substance endangerment to a child, first-degree wanton

endangerment, manufacturing methamphetamine (first offense), unlawful

possession of a methamphetamine precursor, first-degree possession of a

controlled substance, possession of drug paraphernalia, and first-degree

criminal abuse. The Commonwealth initially offered McStoots a plea bargain

recommending a fifteen-year sentence and eighty-five percent parole eligibility.

Upon advice of his public defender, McStoots rejected the offer. McStoots then

accepted the Commonwealth's second offer, which increased the number of

years of his sentence but decreased the percentage of his sentence he would


      1   "Susie" is an alias used to protect the minor child's identity.

                                               2
have to serve before becoming eligible for parole. McStoots agreed to a total

twenty-year sentence, with twelve years at eighty-five percent parole eligibility

and eight years at twenty percent parole eligibility. As such, he pled guilty to

five of the charges and the others were dismissed.

       After entry of the plea but before sentencing, McStoots procured private

counsel. His private counsel filed a motion to withdraw the plea, and he asked

the trial court to schedule an evidentiary hearing on the motion. In the

memorandum and affidavit accompanying the motion, McStoots asserted that

the public defender had ineffectively advised and represented him regarding the

guilty plea. Without conducting the requested evidentiary hearing, the trial

court denied McStoots's motion. McStoots was then sentenced in accordance

with the plea agreement. This appeal followed.


                                  II. ANALYSIS.

       The sole issue that McStoots presents on appeal is whether the trial

court erred in failing to conduct an evidentiary hearing as to whether

McStoots's prior counsel had ineffectively assisted him. We hold that it did

not.

       McStoots moved to withdraw his plea prior to sentencing pursuant

to RCr 8.10. Motions that fail adequately to specify grounds for relief may be

summarily denied, as may motions asserting claims refuted or otherwise

resolved by the record. Commonwealth v. Pridham, 394 S.W.3d 867, 874

(Ky. 2012). Motions adequately alleging valid claims not refuted by the record

entitle the movant to an evidentiary hearing.   Id. at 875. We review the trial
                                         3
court's factual findings for clear error and its application of legal standards and

precedents de novo. Id.

      McStoots alleges that he asserted a valid ineffective assistance of counsel

claim and, thus, was entitled t6 an evidentiary hearing by the trial court.

However, after reviewing McStoots's motion to the trial court, we believe it

failed to specify adequate grounds for relief and there was enough evidence in

the record to refute it. So it was proper for the trial court summarily to deny

the motion without an evidentiary hearing.

      To be entitled to relief from a guilty plea on the ground of ineffective

assistance of counsel, McStoots must show that counsel provided deficient

assistance and that he was prejudiced as a result.      Stiger v. Commonwealth,

381 S.W.3d 230, 235 (Ky. 2012) (citing Strickland v. Washington, 466 U.S. 668,

687 (1984)). "If it is easier to dispose of an ineffectiveness claim on the ground

of lack of sufficient prejudice, that course should be followed." Strickland,

466 U.S. 668 at 670. We hold that McStoots has failed, before both this Court

and the trial court, to allege sufficient prejudice that could entitle him to relief.

So we need not address whether his counsel's assistance was deficient.

      To establish prejudice in the guilty plea context, the challenger must

demonstrate a reasonable probability that—but for counsel's errors—he would

not have pled guilty and would have insisted on going to trial.     Stiger,

381 S.W.3d at 237. This Court has explained:

      [T]o obtain relief on an ineffective assistance claim a petitioner
      must convince the court that a decision to reject the plea bargain
      would have been rational under the circumstances. . . . [A]t the


                                          4
       pleading stage it is movant's burden to allege. specific facts which,
       if true, would demonstrate prejudice. A conclusory allegation to
       the effect that absent the error the movant would have insisted
       upon a trial is not enough. The movant must allege facts that, if
       proven, would support a conclusion that the decision to reject the
       plea bargain and go to trial would have been rational, e.g., valid
       defenses, a pending suppression motion that could undermine the
       prosecution's case, or the realistic potential for a lower sentence.

Id. at 237 (internal citations omitted).

       In the present case, McStoots has made only conclusory allegations

about the prejudice he has suffered. He broadly asserts that his counsel failed

to inform him of potential mental health defenses and possible suppression

motions, but he fails to articulate specifically what these defenses or motions

might have been and how they would have undermined the Commonwealth's

case against him. For example, McStoots asserts that he had been awake for

more than twenty-four hours by the time he was interviewed by police, which

might have rendered his statements involuntary. However, neither party has

asserted that McStoots made any incriminating statement during the interview

upon which the Commonwealth intended to rely in McStoots's prosecution. So

even if we assume that McStoots would seek to suppress a statement from the

interview, he has not suggested how this would change the landscape of his

case or increase the likelihood that he would reject a ) plea offer and go to trial.

Additionally, McStoots broadly suggests that the five-year addition to his

sentence in the second plea offer is evidence of prejudice. However, this

assertion ignores the substantial favorable change in iVIcStoots's parole

eligibility in that plea offer.



                                           5
      In sum, the question is whether there was a reasonable probability that

McStoots would have rejected the Commonwealth's offer and taken his chances

at trial. See id. For the two controlled substance endangerment to a child and

one manufacturing methamphetamine charges alone, McStoots was facing a

potential maximum sentence of forty-five years. He was also facing prison time

for five other charges, four of which were felonies. Moreover, the

Commonwealth had substantial evidence against McStoots from Susie's

hospital medical records, hospital employees' observations, and the resultant

search of McStoots's home. We do not find any basis upon which that evidence

could have been excluded. And, given the harm that a small child suffered, we

cannot perceive how McStoots would rationally believe that a jury would be

sympathetic to him at trial. As such, we can say with fair assurance that going

to trial would not have been a rational decision.


                               III. CONCLUSION.

      Because it was clear from the record that McStoots could not meet his

burden of showing prejudice from the public defender's alleged errors, the trial

court did not err by denying his motion to set aside his guilty plea without an

evidentiary hearing. So we affirm McStoots's convictions and sentence.

      Minton, C.J.; Abramson, Cunningham, Keller, Noble, and Venters, JJ.,

sitting. All concur.




                                        6
COUNSEL FOR APPELLANT:

Steven Russell Dowell


COUNSEL FOR APPELLEE:

Jack Conway
Attorney General of Kentucky

James Coleman Shackelford
Assistant Attorney General




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