Carlos M Hagan v. Commonwealth of Kentucky

Opinion

RENDERED: JULY 31, 2026; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0749-MR

CARLOS M. HAGAN APPELLANT

APPEAL FROM DAVIESS CIRCUIT COURT v. HONORABLE DAVID C. PAYNE, JUDGE ACTION NOS. 21-CR-00446 AND 21-CR-00506

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: COMBS, MOYNAHAN, AND TAYLOR, JUDGES.

MOYNAHAN, JUDGE: Carlos Hagan pro se appeals from an order of the

Daviess Circuit Court summarily denying his Kentucky Rule of Criminal

Procedure (RCr) 11.42 motions to vacate his guilty plea and consequent sentence

of imprisonment. We affirm. BACKGROUND

In 2018, Carlos Hagan was serving an unrelated 22-year sentence of

imprisonment at a halfway house when he escaped from custody. Hagan was later

charged in Daviess Circuit Court with committing various crimes between August

2019 and January 2021, while he remained an escaped inmate. Under indictment

No. 21-CR-00446, Hagan was charged with one count of violating KRS1

218A.1412, trafficking in a controlled substance in the first degree, second or

greater offense (a Class B felony). Under indictment No. 21-CI-00506, Hagan was

charged in Daviess Circuit Court with the following: two counts of violating KRS

511.020, burglary in the first degree (Class B felonies); four counts of violating

KRS 218A.1415, stemming from first offense possession of various controlled

substances while in possession of a firearm (Class C felonies); one count of

violating KRS 218A.500(2), possession of drug paraphernalia while in possession

of a firearm (a Class D felony); one count of violating KRS 514.110, receiving

stolen property, i.e., a firearm (a Class D felony); one count of violating KRS

520.100, fleeing or evading police in the second degree, i.e., on foot (a Class A

misdemeanor); one count of violating KRS 511.070, criminal trespass in the

second degree (a Class B misdemeanor); and one count of violating KRS 527.040,

possession of a handgun by a convicted felon (a Class C felony).

1 Kentucky Revised Statute.

-2- On January 11, 2024, Hagan moved to enter a guilty plea in each case

after reaching plea agreements with the Commonwealth, and the circuit court

accepted and entered judgments in conformity with those agreements. The salient

terms of his agreements were as follows: Hagan pleaded guilty to his trafficking

charge in No. 21-CR-00446; his recommended sentence was 10 years’

imprisonment; and his sentence was to:

[R]un concurrently with the sentence the defendant received in Daviess Circuit Court, Case No. 21-CR- 00506 for a total combined sentence of 10 years in the penitentiary. This sentence shall run concurrently with United States District Court Case No. 4:21CR-21-JHM but consecutively with any other state penitentiary sentence the defendant has received.

As for No. 21-CR-00506, the Commonwealth dismissed Hagan’s

charge of possession of a handgun by a convicted felon, and reduced Hagan’s pair

of first-degree burglary charges to (respectively) third-degree burglary and second-

degree criminal trespass. In exchange, Hagan pleaded:

Guilty to the amended charge in Count 1, Burglary in the Third Degree, and the recommended sentence is 5 years in the penitentiary. Guilty to the amended charge in County 2, Criminal Trespass in the Second Degree, and the recommended sentence is 90 days in the county jail. Guilty as charged to Count 3, Possession of a Controlled Substance in the First Degree, Heroin, While in Possession of a Firearm, and the recommended sentence is 5 years in the penitentiary. Guilty as charged to Count 4, Possession of a Controlled Substance in the First Degree, First Offense, Methamphetamine, While in Possession of a Firearm, and the recommended sentence

-3- is 10 years in the penitentiary. Guilty as charged to Count 5, Possession of a Controlled Substance in the First Degree, First Offense, Drug Unspecified, While in Possession of a Firearm, and the recommended sentence is 5 years in the penitentiary. Guilty as charged to Count 6, Possession of a Controlled Substance in the First Degree, First Offense, Opiates, While in Possession of a Firearm, and the recommended sentence is 5 years in the penitentiary. Guilty as charged to Count 7, Possession of Drug Paraphernalia, While in Possession of a Firearm, and the recommended sentence is 5 years in the penitentiary. Guilty as charged to Count 8, Receiving Stolen Property, Firearm, and the recommended sentence is 5 years in the penitentiary. Guilty as charged to Count 9, Fleeing or Evading Police in the Second Degree, On Foot, and the recommended sentence is 12 months in the county jail. Guilty as charged to Count 10, Criminal Trespass in the Second Degree, and the recommended sentence is 90 days in the county jail.

...

All sentences to run concurrently with each other for a total combined sentence of 10 years in the penitentiary. This sentence shall also run concurrently with the sentence the defendant received in Daviess Circuit Court, Case No. 21-CR-00446 for a total combined sentence of 10 years in the penitentiary. This sentence shall run concurrently with United States District Court Case No. 4:21CR-21-JHM but consecutively with any other state penitentiary sentence the defendant has received.

On April 1, 2025, Hagan then filed RCr 11.42 motions to set aside his

guilty pleas. There, Hagan acknowledged that his plea agreements made no

representations or guarantees regarding his eligibility for parole. He acknowledged

that he had stated under oath during his plea colloquy that no one had made any

-4- other promises to him outside of what was represented in his plea agreements.

Notwithstanding, Hagan asserted that his trial counsel had represented that he

would be eligible for parole after serving two years of his agreed-upon sentence;

that his trial counsel’s representation had induced him to enter the agreements; and

that his trial counsel’s representation was incorrect. Specifically, because the

numerous offenses to which Hagan had pled guilty were offenses that Hagan had

committed while he was an escaped inmate, the operative effect of 501 Kentucky

Administrative Regulation (KAR) 1:030 § 3(4)2 essentially precluded Hagan from

being considered parole eligible for the duration of his ten-year sentence.

2 501 KAR 1:030 § 3(4) governs parole eligibility for crimes committed while on escape. This regulation provides, in pertinent part, as follows:

If an inmate commits a crime . . . while on an escape and receives a concurrent or consecutive sentence for this crime, eligibility time towards parole consideration on the latter sentence shall not begin to accrue until he becomes eligible for parole on his original sentence. This shall include a life sentence.

(a) Except as provided by paragraph (b) of this subsection, in determining parole eligibility for an inmate who receives a sentence for an escape, . . . or on a sentence for a crime committed while on an escape, the total parole eligibility shall be set by adding the following, regardless of whether the sentences are ordered to run concurrently or consecutively:

1. The amount of time to be served for parole eligibility on the original sentence; [and]

...

4. If the inmate has an additional sentence for a crime committed while on escape, the amount of time to be

-5- Responding, the Commonwealth argued that even if Hagan’s trial

counsel had misadvised Hagan as alleged, Hagan had received a substantial benefit

from the plea agreements and his RCr 11.42 motions violated RCr 11.42(2)

because it contained only conclusory allegations of how this had caused him

prejudice. Upon review, the circuit court summarily denied Hagan’s RCr 11.42

motions. This appeal followed.

STANDARD OF REVIEW

“In reviewing an RCr 11.42 proceeding, the appellate court reviews

the trial court’s factual findings for clear error while reviewing the application of

its legal standards and precedents de novo.” Ford v. Commonwealth, 628 S.W.3d

147, 156 (Ky. 2021) (citation omitted). “If an evidentiary hearing is not held, as is

the present case, our review is limited to whether the motion on its face states

grounds that are not conclusively refuted by the record and which, if true, would

invalidate the conviction.” Smith v. Commonwealth, 438 S.W.3d 392, 394 (Ky.

App. 2014) (internal quotation marks and citation omitted).

served for parole eligibility on the additional sentence for the crime committed while on escape.

Based on this language, Department of Corrections (DOC) notified Hagan that his parole eligibility date was in 2034. There is no dispute regarding the correctness of the DOC’s application of this regulation to Hagan’s sentence.

-6- ANALYSIS

A party seeking RCr 11.42 relief for ineffective assistance of counsel

has the burden of demonstrating (1) that counsel’s performance was deficient and

(2) that the deficient performance prejudiced the defense. See Commonwealth v.

Searight, 423 S.W.3d 226, 230 (Ky. 2014). With that in mind, Hagan’s sole

argument on appeal is that his trial counsel was ineffective for failing to advise him

that his plea deal effectively granted him no parole eligibility for the duration of

his ten-year sentence, and that the circuit court accordingly erred by rejecting his

request for RCr 11.42 relief.

To be sure, incorrect advice regarding the effect of the law upon

parole eligibility can demonstrate that trial counsel’s performance was deficient

and, thus, satisfy the first of the two requisite showings set forth above. See, e.g.,

Stiger v. Commonwealth, 381 S.W.3d 230, 236 (Ky. 2012) (“[C]ounsel’s alleged

failure to take the violent offender statute into account when giving advice about

parole eligibility would constitute, if proven, deficient performance.”). However,

we do not need to address that “deficient performance” prong because Hagan has

failed to satisfy the “prejudice” prong. See Commonwealth v. Young, 212 S.W.3d

117, 120 (Ky. 2006).

“Prejudice” in this context is not presumed. Id. And here, apart from

expressing general dissatisfaction with the consequences of his plea agreement,

-7- Hagan’s allegations of “prejudice” are, in the words of his brief, limited to the

following:

The Appellant asserts that had the attorney of record provided him with sound principles and up to date law in regards to how the parole eligibility is stacked per charge when the charges were caught during an “escape”, he would have never signed the deal as is. Some of the charges could have been beat outright for lack of evidence and he would have continued the negotiation.

Appellant Brief 2.

Stated otherwise, Hagan is making two vague allegations in support of

why he was prejudiced. His first allegation is that he would have insisted upon a

better plea deal if his trial counsel had properly advised him about parole

eligibility. But, that is insufficient. To establish prejudice in the context of a

guilty plea, the challenger must demonstrate “a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on

going to trial.” Stiger, 381 S.W.3d at 237 (internal quotation marks and citations

omitted).

Hagan’s second allegation is that “[s]ome of the charges could have

been beat outright for lack of evidence[.]” Appellant Br. 2. Hagan offered no

elaboration on this point below, he offers none on appeal, and this is accordingly

nothing more than a conclusory allegation. That, too, is insufficient:

[A]t the pleading stage it is movant’s burden to allege specific facts which, if true, would demonstrate

-8- prejudice. A conclusory allegation to the effect that absent the error the movant would have insisted upon a trial is not enough. The movant must allege facts that, if proven, would support a conclusion that the decision to reject the plea bargain and go to trial would have been rational, e.g., valid defenses, a pending suppression motion that could undermine the prosecution’s case, or the realistic potential for a lower sentence.

Stiger, 381 S.W.3d at 237 (footnote and citation omitted).

Hagan faced a substantial risk of a greater sentence and otherwise

worse outcome if he had proceeded to trial. Between both of his indictments,

Hagan was facing a total of twelve counts of criminal misconduct, ten of which

were felony offenses. The crimes he was charged with were serious—they

involved residential break-ins, drug trafficking, drug possession, and firearm

possession by a convicted felon. His two counts of first-degree burglary and one

count of first-degree trafficking in a controlled substance (second or greater

offense), for example, carried potential sentences between ten and twenty years per

count, as they were Class B felonies. See KRS 218A.1412(3)(a); KRS 511.020(2);

KRS 532.060(2)(b); KRS 532.020(1)(c).

Importantly, Hagan does not allege facts that would have supported

valid defenses to those counts, nor did he have a pending suppression motion that

could have undermined the prosecution’s case. He also does not allege facts that

would have created a realistic possibility for a lower sentence. And, because he

was charged with committing those offenses while on escape, convictions for any

-9- or all those offenses would have warranted application of 501 KAR 1:030 §3(4),

which would have limited or eliminated his parole eligibility. Moreover, even if

the ultimate result of a trial might have rendered Hagan eligible for parole to some

degree, the fact that an inmate becomes eligible for parole does not guarantee that

the inmate will actually be paroled. Garland v. Commonwealth, 997 S.W.2d 487,

490 (Ky. App. 1999).

By contrast, Hagan received a substantial benefit from his plea

agreements. Specifically, his burglary counts were amended down to third-degree

burglary, a Class D felony with a potential sentence of only one to five years, and

second-degree criminal trespass, a Class B misdemeanor with a potential penalty

of up to only ninety days in jail. His possession-of-a-handgun-by-a-convicted-

felon charge was dismissed. Furthermore, all of his convictions from both Nos.

21-CR-00506 and 21-CR-00446 resulted in a single, combined sentence that

totaled only ten years.

Considering the above, Hagan fails to show it would have been

“rational” for him to have rejected the plea agreement and to have proceeded to

trial instead—even if he had known with absolute certainty that he would receive

no parole eligibility for the duration of the ten-year sentence offered to him.

Stiger, 381 S.W.3d at 237. The circuit court’s summary dismissal of Hagan’s RCr

11.42 motions was accordingly proper because Hagan made an insufficient

-10- showing of prejudice. See Commonwealth v. Pridham, 394 S.W.3d 867, 874 (Ky.

2012) (“Motions which fail adequately to specify grounds for relief may be

summarily denied, as may be motions asserting claims refuted or otherwise

resolved by the record.”); see also RCr 11.42(2) (requiring movants to “state

specifically the grounds on which the sentence is being challenged and the facts on

which the movant relies in support of such grounds.”).

CONCLUSION

Considering the foregoing, we AFFIRM.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Carlos M. Hagan, pro se Russell Coleman Eddyville, Kentucky Attorney General of Kentucky

Matthew R. Krygiel Assistant Attorney General Frankfort, Kentucky

-11-