CRIMINAL (COUNSEL): FUSTON V. COM. (COA 3/2/2007)

FUSTON V. COM.
CRIMINAL:  Ineffective assistance of counsel
2006-CA-000299
PUBLISHED: AFFIRMING IN PART AND VACATING AND REMANDING IN PART; VANMETER
DATE RENDERED: 3/2/2007

Richard Fuston appeals pro se from the circuit Court’s order denying his motion for relief pursuant to RCr2 11.42 without an evidentiary hearing wherein he alleges several instances of ineffective assistance of counsel on appeal.

Fuston argues that his trial counsel provided ineffective assistance by failing to move the court to exempt him from serving 85% of his sentence pursuant to the domestic violence exception contained in KRS 439.3401(5). As this claim is not refuted by the record, COA remanded for an evidentiary hearing on this issue.  In doing so, COA made no judgments as to the merits of Fuston’s claim or to the factual findings the trial court must make on remand.  Simply put, Fuston’s allegations cannot be resolved based upon the record.

Digested by Michael Stevens

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