RENDERED: JUNE 23, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0125-MR

TERRY JONES APPELLANT 

v. 

APPEAL FROM KENTON CIRCUIT COURT

HONORABLE KATHLEEN S. LAPE, JUDGE

ACTION NO. 19-CR-01593-002

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: CALDWELL, GOODWINE, AND MCNEILL, JUDGES.

CALDWELL, JUDGE: Terry Jones appeals the trial court’s denial of his motion 

pursuant to RCr1 11.42 seeking a new trial. Having reviewed the record, the briefs 

of the parties, and the law, we affirm.

1 Kentucky Rules of Criminal Procedure. 
-2-

FACTS

In 2019, Jones was indicted on several counts. In exchange for his 

guilty pleas, the Commonwealth amended the charges to aggravated trafficking in 

a controlled substance, 28 or more grams of fentanyl; trafficking in a controlled 

substance in the first degree, heroin; and trafficking in a controlled substance in the 

first degree, cocaine. Other counts were dismissed. His total sentence to serve was 

twenty-five (25) years: twenty (20) years on the aggravated trafficking count to 

run concurrently with ten (10) years on the trafficking in heroin count, both to run 

consecutive to five (5) years on the trafficking in cocaine count. He was sentenced 

in February of 2021.

Jones filed a motion pursuant to RCr 11.42 alleging ineffective 

assistance of counsel in June of 2021. He alleged that his attorney had failed to 

advise him concerning the legal basis for the charges against him, had failed to 

challenge the search and seizure of items from his residence and failed to file a 

motion to suppress evidence seized from his residence, failed to challenge an 

“incorrect” sentence, failed to file a motion to withdraw his guilty plea, and failed 

to file a direct appeal.2 

2

Jones has apparently abandoned several of these claims as he does not raise them in his brief 

filed in this Court.
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The trial court did not hold an evidentiary hearing into Jones’ claims, 

finding all could be refuted by the record, were insufficient to require his 

conviction be vacated, and failed to demonstrate prejudice. His motion was denied 

by the court in a written order denying relief. 

In the order, the trial court found that there was not a sufficient 

allegation concerning failure to advise him concerning the legal basis for the 

aggravating trafficking count. While he labored under the mistaken belief that he 

was charged with a Class C felony, he was charged with a Class A felony, the 

court found. Further, the court found that the trafficking count had been enhanced 

due to the discovery of a firearm near the controlled substance, but that his attorney 

had successfully negotiated a plea to a Class B felony. The other two trafficking 

counts were amended from Class B felonies, as charged, to Class C felonies when 

his counsel negotiated the removal of the handgun enhancements on those charges. 

The court dispensed with his arguments concerning the propriety of the search 

warrant and the trial court’s failure to challenge the warrant by pointing to his 

guilty plea and noting that he was questioned about his plea and the factual basis 

therefor, and that the court had found his plea to be intelligent and voluntary. The 

court did not address the other issues raised in the motion. 
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STANDARD OF REVIEW

The denial of an RCr 11.42 motion is reviewed on appeal for an abuse 

of the trial court’s discretion. Bowling v. Commonwealth, 981 S.W.2d 545, 548 

(Ky. 1998). Abuse of discretion has been defined as occurring when the trial court 

enters an order or makes a ruling which is arbitrary, unreasonable, unfair, or 

unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 

941, 945 (Ky. 1999) (citations omitted).

ANALYSIS

To succeed on a claim of ineffective assistance of 

counsel, a movant must satisfy the two-prong test 

articulated in Strickland v. Washington, 466 U.S. 668, 

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “First, the 

defendant must show that counsel’s performance was 

deficient. . . . Second, the defendant must show that the 

deficient performance prejudiced the defense.” Id. at 

687, 104 S. Ct. at 2064.

Wagner v. Commonwealth, 483 S.W.3d 381, 383 (Ky. App. 2015). Also, 

reviewing courts must presume that the assistance offered by counsel “falls within 

the wide range of reasonable professional assistance[.]” Strickland, supra, at 689, 

104 S. Ct. at 2065. With this in mind, we review Jones’ allegations. 

When the prosecution ended in a guilty plea, the movant must make a 

showing of prejudice which establishes that had the ineffective assistance not been 

rendered, the matter would not have ended in a guilty plea but would have ended in 

a trial.
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The second, or “prejudice,” requirement, on the other

hand, focuses on whether counsel’s constitutionally 

ineffective performance affected the outcome of the plea 

process. In other words, in order to satisfy the

“prejudice” requirement, the defendant must show that 

there is a reasonable probability that, but for counsel’s 

errors, he would not have pleaded guilty and would have 

insisted on going to trial.

Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985).

The trial court conducted a plea colloquy when Jones entered his plea. 

At that time, Jones indicated that he was pleading guilty knowingly, intelligently,

and voluntarily. He had also participated in felony mediation prior to the entry of 

his guilty plea. Therefore, he had plenty of opportunity to determine whether 

questioning the sufficiency of search warrant affidavits and other allegations 

concerning the sufficiency of evidence before determining that he would enter a 

guilty plea, putting aside any concerns about sufficiency of the search warrant 

affidavits or any other evidence against him. He told the judge at the time of 

entering his plea that he was satisfied with counsel’s advice and had no complaints 

about her services. 

Moreover, allegations of illegal searches and seizures are not, in and 

of themselves, grounds for relief pursuant to RCr 11.42. 

The trial court correctly noted that an illegal search and 

seizure cannot provide a basis for granting postconviction relief, as the admission of illegally obtained 

evidence is merely a trial error and does not render the 

proceedings void. Carter v. Commonwealth, 450 S.W.2d 
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257 (Ky. 1970). See also Wahl v. Commonwealth, 396 

S.W.2d 774, 775 (Ky. 1965) (“The appellant challenged 

the legality of the search and seizure at the trial and is not 

in a position to raise the same question in an RCr 11.42 

proceeding at this time.”).

Parrish v. Commonwealth, 283 S.W.3d 675, 677-78 (Ky. 2009). Jones failed to 

provide any cognizable argument that counsel was ineffective when she did not 

challenge the search warrant, or the affidavits proffered to obtain the warrant. 

Further, he makes no argument that he requested that counsel challenge the search 

warrant. 

Jones next complains that his attorney advised him to plead guilty to a 

Class A felony. He was charged with a Class A felony: aggravated trafficking in a 

controlled substance, fentanyl, with a firearm. He ultimately pleaded guilty to 

aggravated trafficking in a controlled substance in the first degree, fentanyl, 28 or 

more grams, which is a Class B felony. His attorney obtained this result after 

negotiating on his behalf for the removal of the firearm specification. Thus, this 

claim must fail as counsel was clearly not deficient as she negotiated a lesser 

charge, a charge to which he voluntarily pleaded guilty.

The validity of a guilty plea must be determined 

not from specific key words uttered at the time the plea 

was taken, but from considering the totality of 

circumstances surrounding the plea. Kotas v. 

Commonwealth, Ky., 565 S.W.2d 445, 447 (1978); Lynch 

v. Commonwealth, Ky. App., 610 S.W.2d 902 (1980); 

Sparks, supra. These circumstances include the 

accused’s demeanor, background and experience, and 
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whether the record reveals that the plea was voluntarily 

made. Sparks, supra, Littlefield v. Commonwealth, Ky.

App., 554 S.W.2d 872 (1977). The trial court is in the 

best position to determine if there was any reluctance, 

misunderstanding, involuntariness, or incompetence to 

plead guilty. Littlefield, supra, at 874. See Kotas, supra,

at 447. Solemn declarations in open court carry a strong 

presumption of verity. Blackledge v. Allison, 431 U.S. 

63, 97 S. Ct. 1621, 52 L. Ed.2d 136 (1977).

In the instant case, the record clearly shows that 

the Boykin requirements have been met. The trial court 

conducted a lengthy discussion with appellant to 

determine that appellant was intelligently, knowingly, 

and voluntarily entering his guilty plea. The court first 

ascertained that appellant was not suffering from mental 

disease and was not under the influence of alcohol or 

drugs at the time of entering his plea. The appellant also 

told the judge that he had a sufficient amount of time to 

privately confer with his attorney about changing his 

plea, and that he had no further questions to ask his 

attorney. The appellant further told the court that he had 

read the waiver and guilty plea form, and understood it 

and, accordingly, signed his rights.

Centers v. Commonwealth, 799 S.W.2d 51, 54 (Ky. App. 1990).

Jones also questions the legality of the sentence he received. The total 

to serve on all charges to which he was sentenced was twenty-five (25) years, and 

he acknowledged that sentence at the entry of his plea.3 He alleges that he was 

sentenced to multiple sentences for the same count, and his attorney should have 

3 The sentence for the aggravated trafficking count, twenty (20) years, and the trafficking of 

heroin count, ten (10) years, were run concurrently to one another, but consecutive to the 

sentence for the trafficking of cocaine (5 years). Parole eligibility for the first two counts was 

50%, and 20% for the five-(5) year sentence.
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ensured that did not happen. His allegation, though, is simply incorrect. He faced 

three counts and received three sentences to the amended counts. He was not 

subjected to double jeopardy.

Jones allocuted to the charges at the entry of his plea and 

acknowledged that he committed the acts which led to the charges, in detail. He 

complains that he was not advised by his attorney that a jury would have to 

determine whether he was guilty of “aggravated” trafficking but fails to understand 

that a jury would have had to have found each element of the crimes against him 

were established by the prosecution beyond a reasonable doubt. His decision to 

accept the plea deal made it unnecessary to empanel a jury and present the matter 

to the jury for determination.

It should first be noted that the effect of entering a 

voluntary guilty plea is to waive all defenses other than 

that the indictment charges no offense. Quarles v. 

Commonwealth, Ky., 456 S.W.2d 693 (1970); 

Hendrickson v. Commonwealth, Ky., 450 S.W.2d 234 

(1970). A guilty plea constitutes a break in the chain of 

events, and the defendant therefore may not raise 

independent claims related to the deprivation of 

constitutional rights occurring before entry of the guilty

plea. White v. Sowders, 644 F.2d 1177 (6th Cir.1980).

Id. at 55.

The trial court did not hold a hearing into Jones’ allegations

concerning ineffective assistance of counsel, finding they were refuted by the 

record. Jones does not allege on appeal that the failure to hold a hearing was error. 
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A trial court must hold an evidentiary hearing on an RCr 

11.42 motion “only when there is ‘a material issue of fact 

that cannot be determined on the face of the record.’” 

[Commonwealth v. Searight, 423 S.W.3d 226, 228 (Ky. 

2014)] (quoting RCr 11.42(5) (other citation omitted)).

A court may “summarily” deny “motions asserting 

claims refuted or otherwise resolved by the record.”

Commonwealth v. Pridham, 394 S.W.3d 867, 874 (Ky. 

2012). Also, no hearing is required if “the allegations, 

even if true, would not be sufficient to invalidate [the] 

convictions.” Searight, 423 S.W.3d at 228 (internal 

quotation marks and citation omitted).

Fowler v. Commonwealth, 634 S.W.3d 605, 609 (Ky. App. 2021). 

Since Jones does not complain about the lack of a hearing, and the 

order of the trial court denying the relief establishes that a hearing was not required 

as all allegations made were readily refuted by the record, we find that a hearing 

was not required, and the trial court did not abuse its discretion in so finding. See 

Hensley v. Commonwealth, 305 S.W.3d 434 (Ky. App. 2010) (evidentiary hearing 

was not required on defendant’s motion to vacate sentence based on allegedly 

ineffective assistance of counsel; defendant “offered no factual support for his 

claims” and during plea colloquy, he “specified that he had no complaints about 

his attorneys’ performance”).

CONCLUSION

For all of the foregoing reasons, the trial court’s order denying relief 

on the RCr 11.42 motion is affirmed.
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ALL CONCUR.

BRIEF FOR APPELLANT:

Terry Jones, pro se

Wheelwright, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Mark D. Barry

Assistant Attorney General

Frankfort, Kentucky