CRIMINAL – CR 11.42: Noland v. Commonwealth (COA 10/09/2009)

Noland v. Commonwealth
2008-CA-000876 10/09/09 2009 WL 3231461 DR Pending
Opinion by Judge Caperton; Judges Keller and Lambert concurred.

The Court affirmed an order of the circuit court denying appellant’s motion to vacate his conviction pursuant to RCr 11.42. The Court first held that the trial court properly held that appellant was barred from raising a new issue on the date of the evidentiary hearing on his motion. Appellant knew well before the hearing date about the issue related to trial counsel’s advice on his parole eligibility date. His failure to mention it in his original motion and then failure to add it by amending his motion prior to the hearing precluded review. Even so, parole eligibility was a collateral issue beyond the scope of the Sixth Amendment and therefore, counsel was not ineffective for any failure to correctly inform appellant as to his parole eligibility prior to entry of his guilty plea. The Court rejected appellant’s argument that post-conviction counsel was ineffective for failing to amend the RCr 11.42 motion to include the issue. The Court then held that appellant was not denied effective assistance of counsel for counsel’s failure to fully investigate a defense of voluntary intoxication and to correctly advise him of the defense. Appellant failed to properly raise in the trial court the issue of whether counsel correctly advised him as to the correct burden of proof at trial. Even so, the record established that appellant was made aware of a potential intoxication defense and that he was aware of his choice to go to trial with the potential of receiving the maximum sentence or to choose the minimum sentence in a plea agreement.

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