RENDERED: OCTOBER 2, 2020; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-0058-MR

DEVONTE’ WEBB APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT

v. HONORABLE PAMELA R. GOODWINE, JUDGE

ACTION NO. 14-CR-00354-002

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND LAMBERT, JUDGES. 

ACREE, JUDGE: DeVonte’ Webb appeals the Fayette Circuit Court’s August 21, 

2018 order denying his RCr1 11.42 motion for postconviction relief. After careful 

review, we affirm. 

 

1 Kentucky Rules of Criminal Procedure. 
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BACKGROUND

In October 2012, Webb, along with two others, robbed six University 

of Kentucky students at gunpoint. Webb was indicted on five counts of robbery in 

the first degree. He was subsequently charged with being a second-degree 

persistent felony offender. 

At a pre-trial conference held on April 24, 2014, the Commonwealth 

offered Webb a sentence of ten years in exchange for a guilty plea. Webb 

contends his counsel, in advising him whether to accept the plea offer, stated the 

Commonwealth’s case was “weak,” and he believed they could win at trial. 

According to Webb, he rejected the offer based on his counsel’s assurances.

Webb was tried by a jury and convicted on all counts. He was 

sentenced to twenty-seven years in prison. The Kentucky Supreme Court affirmed 

his conviction. Webb v. Commonwealth, No. 2015-SC-000198-MR, 2017 WL 

5504420, at *12 (Ky. Mar. 23, 2017). Thereafter, he filed a pro se motion for

postconviction relief, alleging ineffective assistance of trial counsel. The circuit 

court denied relief without conducting an evidentiary hearing. This appeal 

followed. 

STANDARD OF REVIEW

Every defendant is entitled to reasonably effective, but not necessarily 

errorless, counsel. Fegley v. Commonwealth, 337 S.W.3d 657, 659 (Ky. App. 
-3-

2011). In evaluating a claim of ineffective assistance of counsel, we apply the 

familiar “deficient-performance plus prejudice” standard first articulated in 

Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 

674 (1984). This standard applies equally when defendants allege they declined a 

plea offer in favor of going to trial, based on counsel’s ineffectiveness. See

Osborne v. Commonwealth, 992 S.W.2d 860, 864 (Ky. App. 1998). 

Under Strickland, the movant must first prove his counsel’s 

performance was deficient by demonstrating counsel’s representation “fell below 

an objective standard of reasonableness” such that “counsel was not functioning as 

the ‘counsel’ guaranteed by the Sixth Amendment[.]” Commonwealth v. Tamme, 

83 S.W.3d 465, 469 (Ky. 2002). In this context, we inquire whether counsel 

sufficiently communicated to his client what “risks were attendant to trial versus 

the benefits to be gained vis á vis a plea bargain[.]” Osborne, 992 S.W.2d at 864. 

Second, the movant must prove counsel’s “deficient performance 

prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In this 

context, the movant must show:

that but for the ineffective advice of counsel there is a 

reasonable probability that the plea offer would have 

been presented to the court (i.e., that the defendant would 

have accepted the plea and the prosecution would not 

have withdrawn it in light of intervening circumstances), 

that the court would have accepted its terms, and that the 

conviction or sentence, or both, under the offer’s terms 
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would have been less severe than under the judgment and 

sentence that in fact were imposed. 

Lafler v. Cooper, 566 U.S. 156, 164, 132 S. Ct. 1376, 1385, 182 L. Ed. 2d 398

(2012). 

ANALYSIS

When Webb brought his motion before the circuit court, he argued 

four different grounds for relief pursuant to RCr 11.42. In this appeal, he abandons 

all but one of those grounds. To better understand why the circuit court ruled as it 

did, we shall set forth Webb’s argument as presented there. 

The pertinent paragraph of his motion to the circuit court states, in its 

entirety, as follows:

5. At Movant’s first pretrial hearing, Assistant 

Commonwealth’s Attorney, Alexander Garcia, offered 

him a plea deal on all indicted offenses for a total of ten 

(10) years to serve with a parole eligibility of 85%. 

Movant’s counsels were ineffective for advising him to 

reject the Commonwealth’s plea offer, stating “that they 

(Commonwealth) did not really have anything against him 

and their case was weak, and they could not win at trial.”[2]

In fact, the evidence against Movant was significant, if not 

impervious. The jury found Movant guilty of the five (5) 

first-degree robbery counts and he was sentenced to 

fifteen-year sentences each to run concurrently, enhanced 

to twenty-seven (27) years by a second-degree persistent 

felony offender (PFO) conviction, which also requires 

 

2 Obviously, this cannot be a direct quote because it is in the past tense and refers to Webb in the 

third person. 
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85% service of sentence to be eligible for parole pursuant 

to KRS[3] 439.3401.

(Motion to Vacate, Set Aside or Correct Sentence, Record (R.) at 213B.)

In addition to the motion for postconviction relief, Webb filed a 

twenty-three-page supporting memorandum of law. The section addressing this 

specific issue on appeal comprises slightly more than two pages of the 

memorandum. The first paragraph of that section is a verbatim repetition of 

paragraph 5 of his motion, quoted above. We quote the remaining portions of that 

memorandum to the extent they are pertinent, as follows:

C. Movant was denied the right to effective assistance of 

counsel in whether to accept a favorably offered plea 

bargain.

[The next paragraphs after the repetition of paragraph 5 

from the motion set out general legal principles related to 

ineffective assistance of counsel and specific 

jurisprudence regarding assistance of counsel during plea 

negotiations.]

Movant’s attorney was ineffective by providing him with 

erroneous legal advice to not accept the Commonwealth’s 

favorable offer, when counsel had not provided Movant 

with a viable defense to the evidence against him. Movant 

was prejudiced because he “lost out on the opportunity to 

plead guilty and receive the lower sentence that [was] 

offered to him.” Lafler v. Cooper, 132 S.Ct. 1376, 1384, 

182 L.Ed.2d 398 (2012). The Commonwealth offered to 

settle this case for a sentence far less than 27 years, 10 

years in fact, but Movant’s lawyer advised him not to 

accept the offer based on erroneous legal advice “that they 

 

3 Kentucky Revised Statutes.
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(Commonwealth) did not really have anything against him 

and their case was weak, and they could win at trial.” 

Under Lafler and Strickland this Court must vacate 

Movant’s conviction and order the Commonwealth to 

reinstate the previous offer.

(R. at 231N to 231P.)

We agree with Webb that “a defendant has the right to effective 

assistance of counsel in considering whether to accept [a plea offer].” Lafler, 566 

U.S. at 168, 132 S. Ct. at 1387. Webb asserts his counsel’s only advice was “the 

Commonwealth’s case was weak, and he believed they could win at trial.” He 

contends this falls well below Strickland’s deficiency standard. We disagree.

It is essential to note that nowhere in the motion or memorandum does 

Webb allege his counsel failed to apprise him of: (1) the elements of first-degree 

robbery; (2) the Commonwealth’s evidence and how it could be used to prove firstdegree robbery; (3) the minimum and maximum sentences based on the potential 

outcomes of trial; and (4) the strengths and weaknesses of his case. Allusion to 

such allegations appears for the first time in his brief to this Court.

“[A]n allegation of ineffective assistance of counsel does not state 

grounds for relief unless the petition alleges sufficient facts to show that the 

representation of counsel was inadequate.” Thomas v. Commonwealth, 459 

S.W.2d 72, 72 (Ky. 1970). Before the circuit court, Webb alleged no deficiency of 

counsel’s performance other than counsel’s urging him to reject the offer without 
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telling Webb what the defense would be. Surely, Webb knew his defense was that 

he did not commit the crime.

Webb’s motion in the circuit court for postconviction relief was based 

solely on a relatively general allegation that counsel gave him bad advice. He did 

not base the charge of ineffective assistance on even his own assertion of 

contemporaneous facts that counsel failed him in some specific way. Rather, 

Webb’s best evidence is that the jury’s verdict proved the advice to be bad. That is 

never sufficient cause to require an evidentiary hearing on an RCr 11.42 motion,

much less to grant the motion.

CONCLUSION

Based on the foregoing, we affirm the Fayette Circuit Court’s August 

21, 2018 order denying Webb’s RCr 11.42 motion for postconviction relief.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Andrea Reed

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Leilani K.M. Martin

Assistant Attorney General

Frankfort, Kentucky