RENDERED: FEBRUARY 24, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0215-MR

DONALD E. HOWARD APPELLANT

APPEAL FROM CARROLL CIRCUIT COURT

v. HONORABLE REBECCA LESLIE KNIGHT, JUDGE

ACTION NO. 15-CR-00005

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: CETRULO, DIXON, AND EASTON, JUDGES.

CETRULO, JUDGE: Appellant Donald Howard (“Howard”) appeals from the 

order of the Carroll Circuit Court denying his Kentucky Rule of Criminal 

Procedure (“RCr”) 11.42 motion to vacate his sentence. We AFFIRM.
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FACTUAL AND PROCEDURAL HISTORY

In May 2015, Howard entered a guilty plea to first-degree trafficking 

in a controlled substance, second offense, with no negotiated recommended 

sentence. The trial court sentenced him to 20 years of incarceration – the 

maximum allowed. On direct appeal the next year, Howard alleged the trial

court’s imposition of the statutory maximum was unconstitutional, but the 

Kentucky Supreme Court affirmed the conviction, in relevant part. Howard v. 

Commonwealth, 496 S.W.3d 471 (Ky. 2016).

Then, Howard, pro se, filed an RCr 11.42 motion to vacate the 

judgment in the trial court, claiming his trial counsel was ineffective. Specifically, 

Howard claimed his trial counsel (1) represented him despite a conflict of interest 

(the grand jury had indicted Howard with three co-defendants, and trial counsel 

represented all of them); (2) failed to inform him of two prior plea deals the 

Commonwealth had allegedly offered; and (3) provided “affirmative misadvice” 

regarding his plea deal. The trial court denied the motion without an evidentiary 

hearing, and Howard appealed the order denying relief to this Court in 2019. 

Howard v. Commonwealth, No. 2018-CA-000340-MR, 2019 WL 5295113 (Ky. 

App. Oct. 18, 2019).

There, a panel of this Court affirmed the trial court on issues 1 and 3,

but remanded on issue 2 for an evidentiary hearing to determine whether trial 
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counsel had informed Howard of the prior settlement offers. This Court held that 

“[Howard’s] allegations [we]re not conclusively refuted by the record”; therefore, 

the circuit court needed to hold an evidentiary hearing on that issue. In September 

2021, the trial court held the evidentiary hearing, and trial counsel, two of 

Howard’s co-defendants, and Howard testified.

At the hearing, trial counsel testified that he had been a public 

defender for 16 years and had served as directing attorney of the Department of 

Public Advocacy office in that area since at least 2015. As such, he had years of 

experience with plea offers. Further, he testified that there had been only one plea

offer in Howard’s case – the 15-year offer – which he had told Howard about and 

Howard had rejected. Further, trial counsel recalled that, in terms of a plea,

Howard authorized only five years to serve, and that “that was the most that 

[Howard] was ever going to take in the case.” Additionally, he testified that in his 

conversations with the Commonwealth’s Attorney, it did not appear it was going to 

be “a typical case in terms of plea negotiations” because it was not Howard’s first 

offense. Trial counsel had believed that the lowest the Commonwealth would go 

was 15 years to serve, citing an email chain from April 2015:

Trial Counsel: For what it is worth I can get him to 5 to 

serve based on a meeting I had with him after court. I 

realize that is pretty far from what you had proposed and I 

am sure that ship has probably sailed with [the 

Commonwealth’s Attorney].
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Assistant Commonwealth’s Attorney: Yes the 

minimum offer will be 15 to serve.

[nine minutes later]

Trial Counsel: The max is 20 so I guess we’re going to 

trial.

Trial counsel confirmed that he had not spoken with Howard in the 

nine minutes that passed between the last two messages, but that he had not 

considered it a rejection of the 15-year offer. He claimed that he intended his last 

email to inform the Commonwealth that the maximum sentence was 20 years and 

try to get a better offer. He further testified that after his many years working in 

that area, he “knew that the offer would remain on the table until [the 

Commonwealth] specifically rejected it.” Therefore, he claimed Howard still 

could have accepted the 15-year offer at the next hearing, scheduled three days 

after the phone call on May 1, 2015.

Howard’s appellate counsel asked trial counsel to what proposal his 

first email in that chain referred, but he could not remember an exact number or 

whether there had even been an explicit offer. He stated that after reviewing his

file, the only definitive offer he thought he would get for Howard was the 15-year 

offer. Further, in his experience, the Commonwealth usually made written offers 

following plea discussions, and in this case, there was only a 15-year written offer.
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Later in April 2015, there was a second email the Commonwealth sent

to trial counsel that stated “[i]f we do not have a plea per the open to argue 

sentencing discussion we had earlier today we will want to proceed on all counts.” 

When asked to explain that email, trial counsel stated that he believed it related to 

potential “other counts” that the Commonwealth was using as a “bargaining chip” 

to “make it seem like the open plea was . . . a bad idea.”

Trial counsel, recalling “notes in [his] file,”1testified that he spoke 

with Howard on the phone on May 1, 2015, and they discussed the 15-year offer. 

Trial counsel testified that Howard rejected it over the phone, so the only other 

options were an open plea or to go to trial. Trial counsel testified that the 

Commonwealth had never “pulled the [fifteen-year offer] off the table” so it would 

have been a possibility until Howard took the open plea or went to trial. 

Additionally, trial counsel noted that it would not have been ideal to go to trial 

because there were videos of Howard selling illegal drugs to a confidential 

informant.

Contrary to trial counsel’s testimony, two of Howard’s co-defendants 

testified that there was a 10-year plea offer for Howard. The co-defendants 

claimed that if Howard had accepted the 10-year offer, they would have received 

1 Although trial counsel stated that he had the notes in his car and could retrieve them, no one 

requested to see the files. 
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lesser sentences. They explained that by the time trial counsel had told them – and 

Howard – about the offer, he had already rejected it because “it was not a good 

deal.”

Co-defendant 1, Howard’s son, testified that he would have received 

pre-trial diversion, no jail time, and five years probated if Howard had taken the 10

years. He testified that he had hoped Howard would take that offer because then 

he would not have gotten jail time. At the evidentiary hearing, the Commonwealth 

asked that co-defendant whether he could have been mistaken about what trial 

counsel had told them, and he stated that he was not sure.

Co-defendant 2 testified that if Howard had taken the 10-year offer, he

would have received “six five for five.”2 Co-defendant 2 also testified that he 

heard trial counsel say that he had rejected the offer because it “was no deal at all” 

and that trial counsel had not told Howard about it before rejecting it.

Howard testified that he had met with trial counsel only twice, both of 

which were at the courthouse, in the presence of his co-defendants. He testified

that in those meetings, trial counsel had not informed him of the 10-year offer until 

after trial counsel had rejected it. Further, he testified that he “might have” had 

phone conversations with trial counsel, but he did not specifically remember a 

May 1, 2015 call, and trial counsel had never informed him of a 15-year offer.

2 Six months of incarceration, plus five years of probation for five years. 
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As for the interaction to which his co-defendants had testified, 

Howard stated trial counsel had relayed the Commonwealth’s offer of “six five for 

five” for all three co-defendants3if he took the 10-year offer. However, trial 

counsel had told him that he had turned down the 10-year offer because he did not 

think it was a fair deal. Howard claimed that he did not comment on trial counsel’s 

decision because he did not know that he could do so, and he was not familiar with 

the plea bargaining process. Howard testified that he would have taken the 10 or 

15-year offer if he had known about them and if trial counsel had advised him to 

do so.

Additionally, as part of Howard’s initial RCr 11.42 motion, he had 

submitted purported letters from 2017: some from his co-defendants to him and 

one from him to trial counsel. In his letter to trial counsel, Howard stated that the 

Commonwealth had offered all his co-defendants “six five for five” and that they 

were not contingent on his acceptance of the 10-year offer. Further, the 

co-defendants’ letters to him contained a contingent 10-year offer and inconsistent 

sentences (discussed in more detail below).

Following the hearing, the circuit court denied Howard’s RCr 11.42 

motion as to the two plea offers. It noted that to be successful on an RCr 11.42 

motion for ineffective assistance of counsel, Howard was required to

3 Howard did not note a distinction between co-defendants’ offers, as the co-defendants had.
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“convincingly establish” that his counsel had failed to communicate valid plea 

offers to him “while [they were] still on the table.” The circuit court found that 

Howard had failed to meet that burden.

First, the circuit court did not believe that the Commonwealth ever 

offered a 10-year plea deal because the only witnesses who testified to its existence 

were Howard and his co-defendants, and the trial court did not find them to be 

credible. Part of Howard’s “proof” that there was a 10-year offer were the 

purported letters that each of his co-defendants had written to him within a two day 

span in 2017. The circuit court noted that the letters were inconsistent with the 

testimony at the September 2021 evidentiary hearing.

The purported letters contained inconsistent sentence options: for 

example, the letter from co-defendant 1 read, “if [Howard] would take the ten 

years, [the Commonwealth] would give [us] a split sentence of six months in jail 

and five years[’] probation with remaining five years on the shelf.” However, at 

trial, co-defendant 1 testified that if Howard pled to 10 years, he would have gotten 

pre-trial diversion, no jail time, and five years probated.

The trial court noted the inconsistencies between the letters and the 

testimony and suggested “the co-defendants coordinated the [] letters to be 

consistent, and then failed to maintain that consistency when testifying four years 

later.” Additionally, the circuit court took issue with Howard’s testimony that he 
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did not understand the plea bargaining process and that he had never “entered a 

plea to anything in this jurisdiction, in this courtroom before” because he had, in 

fact, entered a guilty plea in that jurisdiction.

4

For those reasons, the circuit court did not find Howard or the codefendants’ testimony to be credible. Therefore, based on trial counsel’s 

testimony, there was never a 10-year offer, and the 15-year offer had been offered 

to Howard and Howard had rejected it while it was still on the table. The circuit

court did not believe that trial counsel’s email stating “I guess we’re going to trial” 

necessarily constituted a rejection of the Commonwealth’s offer. The circuit court 

concluded that the response was too ambiguous to be considered a firm rejection, 

based on trial counsel’s testimony that he intended the comment to serve as further 

negotiation and that, based on his experience, the Commonwealth did not take a 

plea off the table until it specifically revoked such offer.

Further, the circuit court noted that the Commonwealth’s general 

practice was to give trial counsel a deadline before pulling offers, which had not 

happened here. Finally, the circuit court found that trial counsel had relayed the 

15-year offer to Howard on May 1, 2015, and that Howard rejected that offer. 

4 Howard pled guilty to a drug paraphernalia charge in 2014. Carroll Circuit Court Case No. 

13-CR-00171. In fact, the same trial counsel had represented Howard during that plea.
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Again, the trial court did not find Howard’s insistence that it had not happened to

be credible.

Howard appealed, arguing that the trial court erred when it did not 

find trial counsel was ineffective. Specifically, Howard argues that trial counsel 

“summarily rejected” the settlement offers – one for 10 years, and one for 15

years – before relaying them to Howard, and such deficiency was prejudicial.

STANDARD OF REVIEW

When reviewing an order denying an RCr 11.42 motion claiming 

ineffective assistance of counsel, this Court grants deference to “the trial court’s 

factual findings and determinations of witness credibility.” Commonwealth v. 

McGorman, 489 S.W.3d 731, 736 (Ky. 2016) (citation omitted). We review the 

trial court’s factual findings for clear error. Kentucky Rule of Civil Procedure 

(“CR”) 52.01. We will not disturb trial court findings if they are supported by 

substantial evidence. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). 

Substantial evidence is that which “a reasonable mind would accept as adequate to 

support a conclusion” and that, when “taken alone or in the light of all the 

evidence, . . . has sufficient probative value to induce conviction in the minds of 

reasonable men.” Id. at 354.
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When reviewing trial counsel’s performance under Strickland v. 

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984),5

we apply the de novo standard. Id. (citation omitted). Under Strickland, a 

defendant must first show counsel’s performance was deficient, and second, must 

show that the deficiency resulted in prejudice. Strickland, 466 U.S. at 687, 104 S. 

Ct. at 2064. This Strickland test applies to plea bargains as well. Osborne v. 

Commonwealth, 992 S.W.2d 860, 863 (Ky. App. 1998).

ANALYSIS

The Kentucky Supreme Court, citing Strickland, detailed the standard 

by which we measure ineffective assistance of counsel:

A claim of ineffective assistance of counsel requires a 

showing that counsel’s performance fell below an 

objective standard of reasonableness, and was so 

prejudicial that the defendant has been deprived of a fair 

trial and reasonable result. Counsel is constitutionally 

ineffective only if performance below professional 

standards caused the defendant to lose what he otherwise 

would probably have won.

Commonwealth v. Bussell, 226 S.W.3d 96, 103 (Ky. 2007) (internal quotation 

marks and citations omitted).

The standard poses two questions: (1) did counsel’s performance fall 

below an objective standard of reasonableness; and (2) if it did, was the 

5 The Kentucky Supreme Court adopted Strickland in Gall v. Commonwealth, 702 S.W.2d 37 

(Ky. 1985).
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unreasonableness so prejudicial that it deprived the defendant of a reasonable 

result? We address question two only if the answer to question one is “yes.” 

Commonwealth v. McGorman, 489 S.W.3d 731, 736 (Ky. 2016).

“When faced with an ineffective assistance of counsel claim in 

an RCr 11.42 appeal, a reviewing court first presumes that counsel’s performance 

was reasonable.” Id. (citing Bussell, 226 S.W.3d at 103). The burden is then on 

the defendant “to establish convincingly” that counsel’s performance was not 

reasonable and “that he was deprived of some substantial right which would justify 

the extraordinary relief afforded by the post-conviction proceedings provided in 

RCr 11.42.” Dorton v. Commonwealth, 433 S.W.2d 117, 118 (Ky. 1968). In 

Missouri v. Frye, 566 U.S. 134, 145, 132 S. Ct. 1399, 1408, 182 L. Ed. 2d 379

(2012), the United States Supreme Court explained that defendants have a 

substantial right to counsel communicating “offers from the prosecution to accept a 

plea on terms and conditions that may be favorable to the accused.”

Here, Howard argues that trial counsel acted unreasonably, depriving 

him of a substantial right, by failing to communicate the 15-year offer and the 10-

year offer to him while they were still on the table. The Commonwealth argues, 

however, that Howard failed to convincingly establish that trial counsel did either 

of those things. We agree.
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To analyze the reasonableness of trial counsel’s actions, we must first 

address the circuit court’s findings of fact regarding those actions: (1) that trial 

counsel had communicated the 15-year offer to Howard while it was still on the 

table and (2) that the Commonwealth never made a 10-year offer. Howard argues 

that the circuit court abused its discretion when it made such findings. As 

discussed, the Kentucky Supreme Court mandates that due regard be given to the 

opportunity of the trial court to judge the credibility of the witnesses and “mere 

doubt as to the correctness of a finding will not justify its reversal[.]” Moore, 110 

S.W.3d at 354 (internal quotation marks and citations omitted). Therefore, if the 

trial court’s findings were supported by substantial evidence, we will not disturb 

them.

Here the circuit court found trial counsel’s email stating “I guess 

we’re going to trial” was not a rejection of the 15-year offer. The circuit court 

explained that, based on trial counsel’s testimony, “we’re going to trial” was 

ambiguous and did not necessarily serve to reject the offer. Specifically, the circuit 

court based that understanding on trial counsel’s testimony that he intended the 

statement to serve as an attempt to negotiate, not as a rejection.

Additionally, in the order denying Howard’s RCr 11.42 motion, the 

circuit court acknowledged that trial counsel had been serving as a public defender 

in that region for 16 years. For that duration, trial counsel had experience 
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navigating the Commonwealth’s plea offers. Trial counsel had testified that in that

experience, the Commonwealth’s offers stayed on the table until it specifically

revoked them, which he had testified never happened in this case. Further, trial 

counsel was confident that if Howard had accepted the 15-year offer at the May 4 

hearing, the Commonwealth would have agreed to it.

Nevertheless, trial counsel testified that Howard had rejected the 15-

year offer over the phone on May 1, 2015. Howard, however, testified that he did 

not remember such phone call – although he testified he “might have” had some 

phone calls with trial counsel – and therefore, he claimed, trial counsel had not 

shared that offer with him before rejecting it. For the reasons discussed,6the 

circuit court found trial counsel’s testimony to be more credible than that of 

Howard.

As such, the circuit court based its finding on substantial evidence, 

including trial counsel’s testimony and years of experience, the Commonwealth’s 

typical procedures regarding plea offers, and the credibility of the witnesses. 

Therefore, the circuit court did not abuse its discretion when it found the 15-year 

offer was still on the table when Howard rejected it over the phone. Therefore, we 

must not disturb the finding. Moore, 110 S.W.3d at 354. Accordingly, as to the 

6 Namely, Howard’s insistence he had not pled guilty in that jurisdiction when he actually had.
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15-year offer, trial counsel did not act unreasonably, and therefore was not 

ineffective.

Second, Howard argues the circuit court erred when it found there was 

never a 10-year offer on the table. As discussed, the circuit court did not find the 

co-defendants’ testimony to be credible, citing inconsistencies in the particulars 

and the various contingencies (or lack thereof) of those offers. However, Howard 

contends that despite the inconsistencies, he and the co-defendants had identified a 

least common denominator: that the Commonwealth made an offer and trial 

counsel rejected it before relaying it to Howard. The Commonwealth, however, 

argues that those inconsistencies were not semantics, but another illustration of the 

lack of credibility.

The circuit court considered the inconsistent testimonies and 

purported corroborating evidence (the purported letters) and again found trial 

counsel’s testimony to be more credible. Therefore, again, the circuit court’s 

findings were based on substantial evidence, and we may not disturb them. Id.

Ultimately, we are left with a finding that trial counsel communicated 

a 15-year offer to Howard while it was still on the table and that Howard rejected 

it. Further, the Commonwealth had never offered a 10-year deal. Under those 

facts, trial counsel acted reasonably when it communicated the only offer – the 15-

year offer – to Howard while it was still on the table. Therefore, trial counsel did 
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not deprive Howard of a substantial right and was not ineffective. Because the 

answer to our first question is “no,” we need not move to question two.

CONCLUSION

The denial by the circuit court of Howard’s RCr 11.42 motion was 

supported by substantial evidence; therefore, it did not abuse its discretion and is 

AFFIRMED.

ALL CONCUR.

BRIEF FOR APPELLANT:

Kara Stinson Lewis 

La Grange, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Thomas A. Van De Rostyne

Assistant Attorney General

Frankfort, Kentucky