Opinion
NO. 2016-CA-000512-MR NO. 2016-CA-000513-MR NO. 2016-CA-000514-MR
07-28-2017
ELLEVINA COTTRELL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Russell D. Alred Harlan, Kentucky BRIEF FOR APPELLEE: Andrew Graham Beshear Attorney General of Kentucky J. Todd Henning Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARLAN CIRCUIT COURT
HONORABLE KENT HENDRICKSON, JUDGE
ACTION NOS. 15-CR-00052, 15-CR-00129, 15-CR-00198 OPINION
AFFIRMING
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BEFORE: CLAYTON, DIXON AND NICKELL, JUDGES. DIXON, JUDGE: Appellant, Ellevina Cottrell, appeals from an order of the Harlan Circuit Court denying her motion to withdraw her guilty plea. Finding no error, we affirm.
In 2015, Appellant was indicted in three separate indictments for two counts of second-degree burglary, two counts of theft by unlawful taking over $500, second-degree possession of a controlled substance, and tampering with physical evidence. Appellant was found to be indigent and a public defender was appointed to represent her.
On February 4, 2016, the day before her trial was scheduled to begin, Appellant appeared in the trial court and pled guilty to all charges except tampering with physical evidence, which was dropped as part of the plea agreement. In exchange for the guilty pleas, the Commonwealth recommended a sentence of seven years' imprisonment. During the hearing, the trial court engaged in a thorough plea colloquy with Appellant. Following the trial court's acceptance of Appellant's plea, defense counsel requested that sentencing be delayed so that she could propose an alternative sentencing plan. The Commonwealth's attorney immediately objected and noted that the victims had specifically opposed a probated sentence. The Commonwealth made it clear at that point that Appellant had agreed to the seven-year sentence and that the plea offer would be withdrawn if alternative sentencing was accepted by the court. The trial court observed that there did not appear to be any statutory basis for an alternative sentence. Appellant did not voice any objection and sentencing was initially scheduled for February 18, 2016.
Appellant subsequently retained counsel and on March 2, 2016, the day before her rescheduled sentencing hearing, filed a motion to withdraw her guilty plea. Therein she argued that her plea was neither knowing nor voluntary, but rather she was coerced into entering the plea by her appointed counsel. Appellant alleged that counsel had failed to investigate her case and had informed her that if she pled guilty she would receive probation. Accordingly, Appellant argued that pursuant to the Kentucky Supreme Court's recent decision in Commonwealth v. Tigue, 459 S.W.3d 372 (Ky. 2015), the trial court was required to grant her motion to withdraw her guilty plea. The trial court held a brief hearing on the motion and thereafter continued the matter to further review the record and the Tigue decision. At the next scheduled hearing, the trial court ruled that Tigue was inapplicable, that an evidentiary hearing was not warranted, and that Appellant's plea was knowingly and voluntarily entered. As such, the trial court denied Appellant's motion and imposed the recommended seven-year sentence. This appeal ensued.
On appeal, Appellant argues that the trial court erred by refusing to follow the mandatory precedent set forth in Tigue and allow her to withdraw her plea, and by failing to hold a full evidentiary hearing before ruling on her motion. We find no merit in either argument.
When a criminal defendant pleads guilty, RCr 8.10 requires the trial court receiving the guilty plea to determine on the record whether the defendant is knowingly, freely, and voluntarily pleading guilty. Bronk v. Commonwealth, 58 S.W.3d 482, 486 (Ky. 2001). Whether a guilty plea is voluntarily given is to be determined from the totality of the circumstances surrounding it. Rodriguez v. Commonwealth, 87 S.W.3d 8, 10 (Ky. 2002). Further, the trial court is in the best position to determine the totality of the circumstances surrounding a guilty plea. Bronk, 58 S.W.3d at 487.
Kentucky Rules of Criminal Procedure. --------
Once a criminal defendant has pled guilty, he may move the trial court to withdraw the guilty plea, pursuant to RCr 8.10. To be entitled to relief under RCr 8.10, the defendant "must allege with particularity specific facts which, if true, would render the plea involuntary under the Fourteenth Amendment's Due Process Clause, would render the plea so tainted by counsel's ineffective assistance as to violate the Sixth Amendment, or would otherwise clearly render the plea invalid." Commonwealth v. Pridham, 394 S.W.3d 867, 874 (Ky. 2012), cert. denied by Cox v. Kentucky, ___ U.S. ___, 134 S.Ct. 312 (2013) (citing Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001)). If the plea was involuntary, the motion to withdraw it must be granted. Rodriguez, 87 S.W.3d at 10. However, if it was voluntary, the trial court may, within its discretion, either grant or deny the motion. Id. When a trial court denies a defendant's motion to withdraw his guilty plea, this Court will not reverse the denial unless the trial court has abused its discretion. Bronk, 58 S.W.3d at 487. A trial court has abused its discretion when its actions were arbitrary and capricious under the circumstances. Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky. 1994). A court acts arbitrarily and capriciously when its actions are not supported by substantial evidence. Nat'l Collegiate Athletic Ass'n v. Lasege, 53 S.W.3d 77, 85 (Ky. 2001).
Appellant's claim of involuntariness must be considered under the general test for the validity of guilty pleas. "Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970). The validity of a guilty plea under this standard depends "upon the particular facts and circumstances . . . including the background, experience, and conduct of the accused." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), overruled in part on other grounds by Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Or as our Supreme Court has stated, "the validity of a guilty plea is determined not by reference to some magic incantation recited at the time it is taken but from the totality of the circumstances surrounding it." Kotas v. Commonwealth, 565 S.W.2d 445, 447 (Ky. 1978) (citing Brady, 397 U.S. at 749, 90 S.Ct. at 1469.) "The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970).
Appellant asserts that our Supreme Court's recent decision in Commonwealth v. Tigue required the trial court to allow her to withdraw her guilty plea upon a claim of involuntariness. Appellant has misconstrued the Tigue holding. In Tigue, soon after the Appellant pled guilty, he called his attorneys and requested their assistance in withdrawing his plea. Defense counsel, however, refused Tigue's requests and no written motion to withdraw was never filed. At his sentencing hearing, Tigue orally requested to withdraw his plea due to its involuntary nature. Again, Tigue's counsel refused to assist with his motion. The trial court summarily denied Tigue's request, ruling that his oral pro se motion did not provide sufficient grounds to allow withdrawal.
On discretionary review, the Kentucky Supreme Court held that a motion to withdraw a guilty plea made before the entry of the final judgment and sentence is a "critical stage" of the proceedings to which the constitutional right to effective assistance of counsel attaches. Thus, Tigue's right to counsel was violated when defense counsel refused to help him with the motion to withdraw. The Court observed that
The decision to seek to withdraw a guilty plea is not merely trial strategy, and cannot be made by counsel. If a defendant has entered a guilty plea and, before entry of final judgment, desires to seek to withdraw that plea, whether because it was allegedly entered in error, under duress, or other reason, he is entitled to the assistance of counsel in making such a request.459 S.W.3d at 386. The Tigue Court concluded that "counsel's refusal to assist a client, at least in some circumstances, has the same effect—a complete denial of counsel—as counsel's physical absence or being prevented from assisting." Id. at 385. "To stand silent and refuse to act on a decision that is personal to the defendant is no different than not being present at all. It is a complete denial of counsel." Id. at 386.
Thus, contrary to Appellant's position herein, Tigue simply stands for the proposition that a defendant has the right to be represented by effective counsel when attempting to withdraw a plea. Here, Appellant was represented by counsel who filed the motion to withdraw her guilty plea. Appellant has not alleged that said counsel was in any manner ineffective in filing or arguing the motion. Accordingly, the mandate of Tigue was fully complied with and the trial court was not automatically required to grant her motion to withdraw the plea.
We likewise find no merit in Appellant's claim that the trial court was required to hold a full evidentiary hearing prior to ruling on her motion. An evidentiary hearing "is only required when the motion raises 'an issue of fact that cannot be determined on the face of the record[.]' To do this, the court must 'examin[e] whether the record refuted the allegation raised.'" Parrish v. Commonwealth, 272 S.W.3d 161, 166 (Ky. 2008) (citations omitted). Without question, the trial court is in the best position to determine if any reluctance, misunderstanding, involuntariness, or incompetence to plead guilty existed. Kotas v. Commonwealth, 565 S.W.2d 445 (Ky. 1978).
The trial court herein engaged in an appropriate colloquy, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The trial court addressed each constitutional right Appellant was waiving by entering a conditional guilty plea, i.e., the right to a trial by jury, to confront adverse witnesses, to an attorney (though Appellant was represented by counsel throughout), and to remain silent and not to have the jury use her silence against her. Furthermore, in response to questioning by the trial court, Appellant affirmed the following under oath: that she had legal counsel who reviewed the written offer of plea agreement with her and explained her rights and the consequences of the plea; that she was satisfied with the advice of her legal counsel; and that she was not under the influence of any drugs or alcohol at the time.
Appellant's claim that she only pled guilty because she believed she would receive probation is refuted by the record. The Commonwealth stated unequivocally during the plea hearing that probation was not an option and the plea offer would be withdrawn if probation was considered. The trial court agreed with the Commonwealth that there was no basis for probation. As noted by our Supreme Court in Edmonds v. Commonwealth, 189 S.W.3d 558, 568-69 (Ky. 2006),
Although a defendant should be able to rely on representations by his attorney, reliance on a statement that is flatly contradicted by subsequent statements made by that same attorney, the trial court, and the Commonwealth during the plea negotiations and the Boykin colloquy is not reasonable and does not render the plea involuntary. "[I]f the information given by the court at the [plea] hearing corrects or clarifies the earlier erroneous information given by the defendant's attorney and the defendant admits to understanding the court's advice, the criminal justice system must be able to rely on the subsequent dialogue between the court and defendant." United States v. Lambey, 974 F.2d 1389, 1395 (4th Cir. 1992); see also United States v. D'Angelo, 172 F.3d 1046, 1047-48 (8th Cir. 1999) (holding that defendant's reliance on incorrect legal advice did not automatically warrant withdrawal of guilty plea); United States v. Mahler, 984 F.2d 899, 902 (8th Cir. 1993) (holding defendant not entitled to withdraw guilty plea because he was under a misapprehension regarding sentence range); United States v. Todaro, 982 F.2d 1025, 1030 (6th Cir. 1993) (holding misunderstanding regarding whether defendant would be probated did not
require withdrawal of guilty plea). "Like the Supreme Court in Fontaine v. United States[, 411 U.S. 213, 215, 93 S.Ct. 1461, 1462, 36 L.Ed.2d 169 (1973) ], we recognize that a defendant who expressly represents in open court that his guilty plea is voluntary may not ordinarily repudiate his statements to the sentencing judge." Todaro, 982 F.2d at 1030 (citations and quotations omitted).
Even assuming arguendo that counsel had misled Appellant into believing that she would receive probation, the exchange between counsel, the Commonwealth and the trial court during the plea hearing clearly dispelled any notion that probation was an option. Appellant was fully aware at that point that she was going to receive the agreed-upon seven-year sentence. It was incumbent upon Appellant to voice an objection or point out her counsel's alleged incorrect advice during the hearing. Instead, she asserted that she was satisfied with counsel and with the plea negotiations.
Similarly, although Appellant makes the bald assertion that her trial counsel failed to investigate her case and that there were witnesses to defend against the burglary charge in one of the indictments, Appellant did not offer any evidence in the trial court, nor does she in this Court, to substantiate the identity of these unnamed witnesses or the nature of their testimony. The Commonwealth further points out that even if Appellant went to trial and successfully defended against the charges in the one indictment, she did not raise any defenses to the charges contained in the other two indictments and would still have been facing a possible twenty-year sentence. Under these circumstances, we must agree with the trial court that the seven-year negotiated sentence was reasonable.
We are of the opinion that there is substantial evidence to support the trial court's determination that Appellant's plea was voluntary and intelligent. A defendant's statements and testimony during a plea colloquy play a role in determining, based upon the record, whether his plea was knowing and voluntary. See Commonwealth v. Elza, 284 S.W.3d 118, 122 (Ky. 2009) (utilizing a defendant's "statements and demeanor" at the plea colloquy as evidence against allegations of coercion and deficient performance). Such "[s]olemn declarations in open court carry a strong presumption of verity." Edmonds, 189 S.W.3d at 569 (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (Ky. 1977)). The extensive exchange on the record, recounted above, between the trial court and Appellant prior to her plea constitutes substantial evidence that she was aware of the sentencing implications and was making a voluntary and intelligent plea. Therefore, we find no error.
For the reasons set forth herein, the order of the Harlan Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT:
Russell D. Alred
Harlan, Kentucky BRIEF FOR APPELLEE:
Andrew Graham Beshear
Attorney General of Kentucky J. Todd Henning
Assistant Attorney General
Frankfort, Kentucky