John R. Cecil, Jr. v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: December 5, 2025
• Docket: 2024-CA-1357
• Status: Unpublished

Opinion

RENDERED: DECEMBER 5, 2025; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2024-CA-1357-MR

JOHN R. CECIL, JR. APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE SUSAN SCHULTZ GIBSON, JUDGE ACTION NO. 15-CR-000418

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

** ** ** ** **

BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND MCNEILL, JUDGES.

MCNEILL, JUDGE: John R. Cecil, Jr. (“Cecil”) appeals from the denial of his

RCr1 11.42 motion alleging ineffective assistance of counsel and motion for an

evidentiary hearing. We affirm in part, reverse in part, and remand.

1 Kentucky Rules of Criminal Procedure. BACKGROUND

On December 28, 2014, Cecil struck Caroline Fouts with his vehicle

while she was crossing the road. At the time of the accident, Cecil was highly

intoxicated. Following a jury trial, Cecil was convicted of first-degree assault and

driving under the influence and sentenced to eleven years in prison.2

Subsequently, Cecil moved pursuant to RCr 11.42 to vacate, set aside,

or correct his sentence, arguing ineffective assistance of counsel. Specifically, he

argued that counsel failed to advise him properly of the Commonwealth’s plea

offer, failed to investigate discovery material, and was ineffective in cross-

examining witnesses regarding the location of the accident, which led to his

conviction for a more serious offense. The trial court denied the motion, finding

that it was time-barred under RCr 11.42(10). As to counsel’s failure to investigate

and cross-examine witnesses, the court also found that Cecil could not prove

prejudice. This appeal followed.

STANDARD OF REVIEW

“[A] party seeking RCr 11.42 relief for ineffective assistance of

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

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

2 Cecil’s conviction was affirmed on appeal in Cecil v. Commonwealth, No. 2018-CA-001046- MR, 2020 WL 4515286, at *1 (Ky. App. Jul. 24, 2020).

-2- Searight, 423 S.W.3d 226, 230 (Ky. 2014) (internal quotation marks omitted)

(citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L.

Ed. 2d 674 (1984)). “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).

ANALYSIS

Cecil first argues the trial court erred in denying his RCr 11.42 motion

as time-barred. We agree. RCr 11.42(10) states that “[a]ny motion under this rule

shall be filed within three years after the judgment becomes final[.]” In Kentucky,

“a judgment of conviction is not final until judgment has been entered in the final

appeal of the case.” Palmer v. Commonwealth, 3 S.W.3d 763, 765 (Ky. App.

1999). Here, Cecil’s conviction became final on February 9, 2021, the date the

Kentucky Supreme Court denied discretionary review of his direct appeal. See

RAP3 40(G)(2) and (4). Therefore, pursuant to RCr 11.42(10), Cecil had three

years from February 9, 2021 (or until February 9, 2024) to file his RCr 11.42

motion. Cecil timely filed his motion on February 2, 2024, within the three-year

requirement of RCr 11.42(10). The trial court erred in finding Cecil’s RCr 11.42

motion time-barred.

3 Kentucky Rules of Appellate Procedure.

-3- Cecil next argues he was entitled to an evidentiary hearing on his RCr

11.42 motion. A hearing is required on an RCr 11.42 motion “if there is a material

issue of fact that cannot be conclusively resolved, i.e., conclusively proved or

disproved, by an examination of the record.” Fraser v. Commonwealth, 59 S.W.3d

448, 452 (Ky. 2001) (citations omitted). “If the record refutes the claims of error,

there is no need for an evidentiary hearing.” Bowling v. Commonwealth, 981

S.W.2d 545, 549 (Ky. 1998) (citation omitted). “A hearing is also unnecessary

where the allegations, even if true, would not be sufficient to invalidate the

conviction.” Id. (citation omitted).

Here, the trial court ruled that “since all claims are time-barred, there

is no basis to hold an evidentiary hearing.” However, because Cecil’s RCr 11.42

motion was timely, this was not a valid reason to deny an evidentiary hearing.

Therefore, we look 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.” Searight, 423 S.W.3d at 231 (citing Lewis v. Commonwealth, 411

S.W.2d 321, 322 (Ky. 1967)).

Cecil’s RCr 11.42 motion made two main allegations: (1) counsel

failed to investigate discovery material and impeach witnesses about the location

of the accident, and (2) counsel failed to advise him properly of the

-4- Commonwealth’s plea offer. Concerning the first allegation, the trial court

summarized Cecil’s argument as follows:

[Cecil] contends that if counsel had been able to establish, through impeachment of the witnesses, that the accident occurred on Lexington Road rather than Frankfort Avenue, the jury could have inferred that the witnesses were crossing the road against the light, and therefore [Cecil] did not run the red light when he hit Fouts. Without the testimony that [Cecil] ran the light, [Cecil] contends that there would not have been evidence of wantonness demonstrating extreme indifference to human life, and he would not have been convicted of Assault in the First Degree. [Cecil] asserts that it was only his inquiry in March 2024 regarding discovery materials in the related civil action that revealed that Ms. Fouts had, through her Civil Complaint and Jury Demand, placed the impact location on Frankfort Avenue. [Cecil] asserts that counsel was ineffective for failing to obtain this material for use in the cross- examination of the witnesses.

The trial court ruled that even if this claim were not time-barred, Cecil

was not entitled to RCr 11.42 relief because he could not establish prejudice. It

found that Cecil’s high blood alcohol content (almost four times the legal limit),

his acknowledgement to officials that his blood alcohol level would be very high,

and his failure to perceive the need to immediately stop after hitting Fouts with his

vehicle was “sufficient for the jury to find wanton conduct creating a substantial

and unjustifiable risk that death or serious physical injury to another would occur.”

Thus, Cecil could not establish “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

-5- We agree with the trial court that Cecil cannot establish prejudice on

this claim of ineffective assistance of counsel. Even if counsel was deficient in

failing to obtain discovery material or effectively impeach witnesses about the

location of the accident, the evidence was sufficient for a jury to convict Cecil of

first-degree assault. “A person is guilty of assault in the first degree when . . .

[u]nder circumstances manifesting extreme indifference to the value of human life

he wantonly engages in conduct which creates a grave risk of death to another and

thereby causes serious physical injury to another person.” KRS 508.010(1)(b).

Our Supreme Court “has made clear that intoxication, along with

other factors, can suffice to prove . . . circumstances manifesting extreme

indifference to human life.” Bowling v. Commonwealth, 553 S.W.3d 231, 237

(Ky. 2018) (internal quotation marks and citation omitted). Further, “operating a

vehicle in an intoxicated state is indicative of wantonness[.]” Doneghy v.

Commonwealth, 410 S.W.3d 95, 103 (Ky. 2013). In McCargo v. Commonwealth,

551 S.W.3d 439, 442-43 (Ky. App. 2017), a panel of this court found sufficient

evidence of wantonness to support a conviction for first-degree assault where

defendant “was intoxicated, had taken the wheel from his designated driver, and

was attempting to parallel park an SUV on a busy street crowded with pedestrians

and patrons sitting at a sidewalk table.”

-6- Here, Cecil was driving while highly intoxicated (his BAC was .302),

at night, in the rain, and continued driving for one or two blocks with Fouts on the

hood of his car. This evidence was more than sufficient for a jury to find that Cecil

acted with extreme indifference to the value of human life. “Where the record is

clear that an ineffective assistance of counsel claim would ultimately fail the

prejudice prong of Strickland, regardless of the outcome of a hearing on the

deficiency prong, the trial court should be affirmed even in the absence of such a

hearing.” Haley v. Commonwealth, 586 S.W.3d 744, 751 (Ky. App. 2019).

Therefore, the trial court did not err in denying this claim of ineffective assistance

of counsel without an evidentiary hearing.

Cecil’s RCr 11.42 motion also claimed that counsel was ineffective in

failing to advise him properly of the Commonwealth’s plea offer. According to

Cecil, in June of 2015, the Commonwealth extended a plea offer of ten years, with

20 percent parole eligibility. He claims counsel did not inform him of the

particulars of the agreement, including whether he was eligible for shock

probation, when the offer would expire, or what he would be required to plead

guilty to. Furthermore, he argues there was no discussion of the likelihood of

receiving probation; he was only told that the Commonwealth would object to

probation. And he contends counsel repeatedly advised him to hold out for a better

offer or proceed to trial.

-7- In 2018, on the eve of trial, counsel informed Cecil that the judge

would likely grant probation if he accepted the plea offer. Cecil decided to take

the plea deal. At that point, however, it was too late. The new prosecutor had

revoked the offer and wanted to proceed to trial.

Cecil claims that but for counsel’s failure to clearly explain the offer

(and advice not to accept it), he would have entered a guilty plea and received a

significantly lighter sentence. Cecil argues an evidentiary hearing is necessary to

resolve factual questions concerning: (l) counsel’s advice to hold out for a better

plea offer from the Commonwealth or proceed to trial, (2) whether or not counsel

discussed the specifics of the original plea offer with the Cecil, including whether

or not the trial court would grant probation, and (3) whether or not counsel

discussed shock probation eligibility, statutory good time credits, and possible

outcomes if the offer was rejected and taken to a jury trial to face a possible violent

felony conviction.

The Commonwealth contends that Cecil’s claim is procedurally

barred because he should have raised it in a previous post-conviction motion.

Cecil filed both a direct appeal and a CR 60.02 motion. However, “claims of

ineffective assistance are not properly raised on direct appeal, but rather must

proceed by way of a post-trial motion under RCr 11.42 to allow the trial court the

opportunity to review the issues.” Furnish v. Commonwealth, 95 S.W.3d 34, 52

-8- (Ky. 2002), as modified (Dec. 10, 2002) (citation omitted). Further, a defendant

generally may only seek relief under CR 60.02 after seeking relief under RCr

11.42. See, e.g., Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983) (“The

structure provided in Kentucky for attacking the final judgment of a trial court in a

criminal case is not haphazard and overlapping, but is organized and complete.

That structure is set out in the rules related to direct appeals, in RCr 11.42, and

thereafter in CR 60.02.”). Therefore, Cecil’s claim was brought correctly under

RCr 11.42.

Turning to the merits, “as a general rule, defense counsel has the duty

to communicate formal offers from the prosecution to accept a plea on terms and

conditions that may be favorable to the accused.” Missouri v. Frye, 566 U.S. 134,

145, 132 S. Ct. 1399, 1408, 182 L. Ed. 2d 379 (2012). “As part of this advice,

counsel must communicate to the defendant the terms of the plea offer, and should

usually inform the defendant of the strengths and weaknesses of the case against

him, as well as the alternative sentences to which he will most likely be

exposed[.]” Purdy v. United States, 208 F.3d 41, 45 (2d Cir. 2000). “In

determining whether counsel is effective during plea negotiations the Court must

assess ‘what risks were attendant to trial versus the benefits to be gained vis-à-vis a

plea bargain, and counsel’s conduct with respect to communicating these factors to

the defendant.’” Commonwealth v. McGorman, 489 S.W.3d 731, 745 (Ky. 2016)

-9- (citing Osborne v. Commonwealth, 992 S.W.2d 860, 864 (Ky. App. 1998)).

“[W]here a plea of guilty may result in a lighter sentence than might, otherwise, be

imposed should the defendant proceed to trial, influencing a defendant to accept

this alternative is proper.” Osborne, 992 S.W.2d at 864 (citations omitted).

Cecil alleges that counsel did not discuss the particulars of the

Commonwealth’s plea offer with him and advised him to reject the plea offer and

hold out for a better one. The record does not conclusively refute these allegations.

While there was a lengthy discussion concerning the history of plea negotiations

on the morning of the trial, details of the conversations between counsel and Cecil

that may be relevant to these concerns, were left out. If true, counsel’s

performance may have been deficient.

However, Cecil must also prove prejudice. Frye holds that:

To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel’s deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law. To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.

Frye, 566 U.S. at 147, 132 S. Ct. 1409 (citation omitted).

-10- Cecil alleges he would have taken the original offer had it been

explained to him and had he been encouraged to, as evidenced by his willingness

to accept a less favorable offer on the day of trial. He further claims the trial

court’s willingness to allow a plea deal is demonstrated by its desire for the parties

to consider a plea bargain on the morning of trial. Lastly, he contends he would

have received a more favorable sentence by pleading guilty. He was ultimately

convicted of first-degree assault and sentenced to eleven years in prison. Had he

accepted the Commonwealth’s original offer of ten years with 20 percent parole

eligibility, he contends he would have served two years, at most.

The record does not refute Cecil’s allegation of prejudice. Therefore,

an evidentiary hearing is required to ascertain whether trial counsel adequately

explained the Commonwealth’s original plea offer to Cecil, and whether counsel

discouraged Cecil from accepting the offer, and if so, why. Because

an evidentiary hearing is required on this claim, counsel should be appointed to

represent Cecil. RCr 11.42(5). Following the evidentiary hearing, the trial court

must then determine whether counsel’s performance was deficient. As noted

above, “[i]n determining whether counsel is effective during plea negotiations the

Court must assess ‘what risks were attendant to trial versus the benefits to be

gained vis-à-vis a plea bargain, and counsel’s conduct with respect to

communicating these factors to the defendant.’” Commonwealth v. McGorman,

-11- 489 S.W.3d 731, 745 (Ky. 2016) (citing Osborne v. Commonwealth, 992 S.W.2d

860, 864 (Ky. App. 1998)). If deficient, the court must further determine whether

Cecil was prejudiced thereby, under the standard outlined in Frye. Cecil bears the

burden of proving both deficient performance and prejudice. We express no

opinion on the merits of Cecil’s ineffective assistance claim; we hold only that he

is entitled to an evidentiary hearing and an opportunity to prove his contentions.

“[S]hould the trial court determine [Cecil] has made a valid RCr

11.42 claim, then the next step will be to fashion an appropriate remedy.”

Osborne, 992 S.W.2d at 865. In Osborne, we discussed the appropriate remedy for

ineffective assistance of counsel during the plea negotiation process, leading to a

lapsed or rejected plea deal. We noted that “the only way to neutralize the

constitutional deprivation suffered by [a defendant] would seem to be to provide

[the defendant] with an opportunity to consider the [Commonwealth’s initial] plea

offer with the effective assistance of counsel.” Id. (citing Turner v. State of Tenn.,

858 F.2d 1201, 1208 (6th Cir. 1988), cert. granted, vacated on other grounds sub

nom. Tennessee v. Turner, 492 U.S. 902, 109 S. Ct. 3208, 106 L. Ed. 2d 559

(1989)). “The Commonwealth may withdraw its prior offer only if it can rebut the

presumption that the withdrawal is the product of prosecutorial vindictiveness.”

Id. at 866. The presumption can be overcome “by objective evidence justifying the

prosecutor’s action.” United States v. Goodwin, 457 U.S. 368, 376 n.8, 102 S. Ct.

-12- 2485, 2490 n.8, 73 L. Ed. 2d 74 (1982); see also United States v. LaDeau, 734

F.3d 561, 566 (6th Cir. 2013) (citation and internal quotation marks omitted) (“The

government bears the burden of rebutting the presumption with objective, on-the-

record explanations . . . .”).

CONCLUSION

Accordingly, the Jefferson Circuit Court’s order denying Cecil’s RCr

11.42 motion and motion for an evidentiary hearing is affirmed as to Cecil’s claim

that counsel was ineffective for failing to investigate discovery and impeach

witnesses concerning the location of the accident, reversed as to Cecil’s claim that

counsel was ineffective in failing to advise him properly of the Commonwealth’s

plea offer, and remanded for an evidentiary hearing on this claim.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

John R. Cecil, Jr., pro se Russell Coleman LaGrange, Kentucky Attorney General of Kentucky

Kristin L. Condor Assistant Attorney General Frankfort, Kentucky

-13-