Opinion
NO. 2012-CA-001163-MR
04-18-2014
ANTOINE JORDAN BOULWARE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Margaret Anne Ivie Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Bryan D. Morrow Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JESSAMINE CIRCUIT COURT
HONORABLE C. HUNTER DAUGHERTY, JUDGE
ACTION NO. 08-CR-00069
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; JONES AND MOORE, JUDGES. JONES, JUDGE: Antoine Jordan Boulware appeals from the Jessamine Circuit Court's denial of his motion made pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 and Kentucky Rules of Civil Procedure (CR) 60.02. On appeal, Boulware asserts the trial court erred by denying his motion to withdraw his guilty plea. Boulware argues that his guilty plea was involuntary because it was the result of ineffective assistance of counsel. Specifically, he asserts trial counsel failed to fully advise him of the requirements of the Sex Offender Treatment Program ("SOTP") prior to entering his guilty plea. After a careful review of the record and applicable case law, we affirm the order of the Jessamine Circuit Court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Boulware was indicted for first-degree rape for engaging in sexual intercourse by forcible compulsion. The victim was fourteen years of age at the time. A public defender was appointed to represent Boulware. After several months had passed, Boulware filed a letter in the Jessamine Circuit Court requesting the appointment of new counsel. He alleged that his present attorney showed "no signs of trying to help" him. He further stated, in reference to the rape charge, that he was willing to accept responsibility for his actions, but that he "would never take advantage of a female." (Emphasis in original.)
The trial court held an ex parte hearing on Boulware's allegations. Boulware's attorney described the work she had done on his behalf, including mailing him discovery, attempting to interview the victim, and discussing his defense. Boulware stated that he was willing to plead guilty to having consensual sex with a minor, but insisted that he would not admit to using force.
The Commonwealth subsequently made Boulware a plea offer, agreeing to amend the first-degree rape charge to second-degree rape in exchange for recommending a seven-year sentence to run consecutively with a sentence for second-degree burglary that Boulware had received in Fayette County. Boulware accepted the plea on December 12, 2008.
The facts, as alleged in the Commonwealth's plea offer, were that the defendant "engaged in sexual intercourse with [the victim] at a time when he was over 18 years of age and she had yet lived for 14 years." As it is defined in Kentucky Revised Statutes (KRS) 510.040, rape in the first degree requires a finding of forcible compulsion or that the victim was physically helpless or less than twelve years old; by contrast, second-degree rape requires a finding that the defendant was eighteen years of age or older and the victim was less than fourteen years old or mentally incapacitated. See KRS 510.050.
Prior to sentencing, Boulware filed a motion to withdraw his guilty plea on the grounds that he had been pressured into entering it by the "accusing looks" of the victim's mother. He also stated that, after talking to his family and consulting some law books, he no longer felt comfortable pleading guilty. His trial counsel explained to the court that the plea offer was designed to balance Boulware's unwillingness to admit to the use of force with the desire of the victim's mother to see him punished. Hence, they had agreed to say that the victim had not yet turned fourteen at the time of the rape, which occurred on her birthday.
The trial court denied the motion, on the grounds that Boulware's reasons for wishing to withdraw the plea were not based on anything that would render the plea unknowing, involuntary, or unintelligent. The trial court sentenced Boulware to serve seven years, subject to a five-year period of conditional discharge.
For the sake of completeness, it is important to note that Boulware failed to include the video and/or transcript of his guilty plea hearing. It is an appellant's duty to ensure that we receive the complete record on appeal. Chestnut v. Commonwealth, 250 S.W.3d 288, 303 (Ky. 2008). When the complete record is not before the appellate court, we are bound to assume that the omitted record supports the trial court's decision. Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985).
Almost two years later, Boulware filed a motion to vacate, set aside, or correct judgment pursuant to RCr 11.42 and CR 60.02(f), alleging ineffective assistance of counsel. According to Boulware, upon being screened for the SOTP, he was told that he would not be allowed to complete the program unless he admitted to the use of force against the victim. He attended from ten to fifteen sessions of the program over a period of three to four months and consistently maintained that no force was used during the commission of the crime. Ultimately, after being told that he could not complete the course unless he admitted to using force, he withdrew from the program and consequently became ineligible for parole.
KRS 439.340 (11) provides that "No eligible sexual offender within the meaning of KRS 197.400 to 197.440 shall be granted parole unless he or she has successfully completed the Sexual Offender Treatment Program."
The trial court granted Boulware a post-conviction hearing. At that hearing, Boulware's attorney testified that, prior to the entry of the guilty plea, she advised Boulware that he would be required to successfully complete the SOTP as a condition of parole, that he would be subject to conditional discharge for five years upon his completion of the sentence, that he would have to register as a sexual offender, and that he would be subject to the inclusion of his DNA in the Law Enforcement Identification Data Bases. Her notes indicated that she had successfully negotiated the charge from first-degree rape, which would have entailed the service of 85 percent of his sentence as a violent offender, down to second-degree rape, which made him eligible for parole after serving 20 percent of his sentence, provided he completed the SOTP.
Although Boulware raised numerous ineffective assistance of counsel claims in his motion, the parties agreed at the evidentiary hearing that the only genuine issue before the trial court related to the SOTP program, specifically whether counsel was ineffective for failing to advise Boulware that refusal to admit to the victim's allegations would render him ineligible for the SOTP program and its benefits, including parole.
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The trial court acknowledged that Boulware had consistently denied the use of force and had admitted to the second-degree rape charge based only on the age of the victim at the time the crime was committed. The trial court nonetheless denied the motion, concluding that Boulware's attorney had advised him of all the reasonably foreseeable consequences of his plea. This appeal followed.
III. STANDARD OF REVIEW
When a defendant argues that his plea was rendered involuntary due to ineffective assistance of counsel, the trial court is required
to "consider the totality of the circumstances surrounding the guilty plea and juxtapose the presumption of voluntariness inherent in a proper plea colloquy with a Strickland v. Washington [466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] inquiry into the performance of counsel." To support a defendant's assertion that he was unable to intelligently weigh his legal alternatives in deciding to plead guilty because of ineffective assistance of counsel, he must demonstrate the following:Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky. App. 2004) (internal citations omitted).
(1) that counsel made errors so serious that counsel's performance fell outside the wide range of professionally competent assistance; and (2) that the deficient performance so seriously affected the outcome of the plea process that, but for the errors of counsel, there is a reasonable probability that the defendant would not have pleaded guilty, but would have insisted on going to trial.
The trial court's findings regarding alleged claims of ineffective assistance of counsel are mixed questions of law and fact. McQueen v. Commonwealth, 721 S.W.2d 694, 698 (Ky. 1986). On appeal, deference must be given to the determination of facts and credibility made by the trial court, unless those findings are clearly erroneous. Id. Nonetheless, a "reviewing court looks de novo at counsel's performance and any potential deficiency caused by counsel's performance." Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008).
IV. ANALYSIS
On appeal, Boulware urges us to extend Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), and hold that counsel is ineffective if she does not advise a defendant of precisely what he is required to admit in order to complete the SOTP.
In Padilla, the Court held that that counsel was ineffective for failing to advise a noncitizen client that his guilty plea would subject him to automatic deportation. The Court stressed that deportation is intimately related to the criminal process; is a nearly automatic result following certain criminal convictions; and is a drastic measure equivalent to banishment or exile.
Recently, the Kentucky Supreme Court applied Padilla to two separate claims of ineffective assistance of counsel, the first dealing with parole eligibility under the violent offender statute and the second dealing with the time necessary to complete the SOTP. Commonwealth v. Pridham, 394 S.W.3d 867 (Ky. 2012).
In Pridham, the Kentucky Supreme Court first considered whether counsel was ineffective for failing to advise the defendant that he would have to serve 85% of his sentence under the violent offender statute before being eligible for parole whereas nonviolent offenses require only 20% to be served before parole eligibility. The Kentucky Supreme Court concluded that "the sharply extended period of parole ineligibility is a serious enough and certain enough detriment that a person pleading guilty is entitled to know about it." The Court then reasoned that just as the consequences of Padilla's plea could be easily determined from reading the deportation statute, the parole eligibility consequences could easily be determined by reading the violent offender statute. Accordingly, the Pridham court held that the defendant alleged a prima facie ineffective assistance of counsel claim where his counsel failed to advise him of the parole requirements before he pleaded guilty under the violent offender statute.
The Pridham court next examined the companion case dealing with the time necessary to complete the SOTP. The defendant alleged that his counsel was ineffective for failing to advise him that it could take up to two years to complete the SOTP. The Kentucky Supreme Court disagreed after concluding that the SOTP is not a punishment or a penalty, but a rehabilitative measure that does not affect a defendant's underlying sentence and does not enhance his punishment. The Court explained its rationale as follows:
[W]e understand Padilla as invalidating the collateral consequences rule for deportation and for consequences "like" deportation in their punitive effect, their severity, and their intimate relationship to the direct criminal penalties where the consequence is easily determined from a clear and explicit statute. The deferral of [the defendant's] parole eligibility until he completes sex offender treatment is not like deportation in any of these respects.Pridham, 394 S.W.3d at 881-82. The Court further noted that:
[u]nlike the 85% parole eligibility evident from the face of the violent offender statute, there is no place in Kentucky law where there is a "succinct, clear, and explicit," Padilla, 130 S.Ct. at 1483, answer to the issue of whether a sex offender treatment program can be completed in two years. Any parole eligibility effect, therefore, cannot, like the deportation at issue in Padilla, be said to be enmeshed with the defendant's sentence and easily ascertainable by reference to statute.
Id.
We now turn to Boulware's specific claim. Boulware argues that his attorney was put on notice that he would not be able to complete the SOTP because his sex offender evaluation stated that he was not a good candidate for the program. He also argues that his consistent denial of the use of force should also have put his attorney on notice to investigate the requirements of the SOTP.
The sex offender evaluation is not in the record before us. According to the comments of the trial court at the hearing, however, the evaluation did not expressly state that Boulware would have to admit to the use of force in order to successfully complete the program. Moreover, like the companion case in Pridham, there is no place in Kentucky law where there is a "succinct, clear, and explicit" answer to the issue of whether a participant in a sex offender program must admit to force as alleged by the victim. Id. at 886. As the trial court aptly stated, it was "completely unforeseeable that the Sexual Offender Treatment Program would require the defendant to admit to something other than what he admitted in his guilty plea."
501 Kentucky Administrative Regulation 6:020 outlines the basic requirements of the SOTP, including the requirement that a "sex offender who does not admit guilt or responsibility for the offender's sexually assaultive offense shall not be accepted in the SOTP, after the initial assessment and orientation phase." However, as explained by Boulware's counsel, during the evidentiary hearing, the SOTP's own internal policy requires a sex offender participant to admit to the specific allegations made by the victim, even if the victim's allegations exceed the scope of the charges that the defendant pleaded guilty to or was convicted of at trial. This specific requirement is not contained in the published administrative regulation or the statute.
The administrative regulation indicates only that the defendant must admit to "guilt or responsibility." It does not indicate that the defendant must admit guilt according to the victim's allegations or that his admission might be required to exceed the nature of his plea or verdict. We conclude that the SOTP's requirement for Boulware to admit to the victim's version of events before completing the program could not have been "easily determined by reference to succinct, clear and explicit law" by his counsel prior to trial. Id. at 886.
Further, as observed by the Court in Pridham, the SOTP is not a punishment or a penalty. It does not affect Boulware's underlying sentence nor does it enhance his punishment.
The record indicates Boulware's trial counsel advised him of all the foreseeable consequences of his guilty plea and effectively negotiated a reduced charge. Thus, in light of the relevant facts and applicable case law, we find no error in the trial court's order.
V. CONCLUSION
For the foregoing reasons, the order of the Jessamine Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Margaret Anne Ivie
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Bryan D. Morrow
Frankfort, Kentucky