Opinion
NO. 2016-CA-001944-MR
06-08-2018
EDDIE COWEN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Eddie Cowen, pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Mark D. Barry Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE JAMES C. BRANTLEY, CHIEF JUDGE
ACTION NO. 07-CR-00309 OPINION
AFFIRMING
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BEFORE: ACREE, DIXON, AND NICKELL, JUDGES. NICKELL, JUDGE: Eddie Cowen, pro se, challenges an order entered by the Hopkins Circuit Court denying his pro se motion to withdraw a 2008 guilty plea. Following review of the record, the briefs and the law, we affirm.
On October 30, 2007, Cowen was indicted on multiple sex offenses involving seven minors between the ages of six and thirteen. Cowen confessed. One of the victims was Cowen's mentally-challenged son who was himself accused of sex-related crimes with minors. If convicted at trial, Cowen faced a maximum sentence of life.
Hon. Cher Eaves represented Cowen as conflict attorney under a contract with the Department of Public Advocacy. She negotiated a plea of fifty years on Cowen's behalf. During her representation of Cowen, she developed contagious pneumonia requiring much of her communication with Cowen to occur via letter. Her letters were thorough and blunt, conveying the seriousness of Cowen's crimes and the strength of the Commonwealth's case which included Cowen's own confession and testimony from the child victims. In urging Cowen to take the Commonwealth's offer, counsel emphasized the weakness of the defense case—she saw no viable defenses; consequences for Cowen's son; and the possibility of the parole board looking favorably on Cowen taking responsibility for his actions and entering a guilty plea. Based on Cowen's confession, Eaves believed Cowen had received a break because he could have been charged with far more felonies than reflected in the indictment. Based on her experience, she did not believe a jury would view Cowen or his conduct favorably.
According to an affidavit filed by Eaves, she maintains her law license but is no longer a practicing attorney.
On February 22, 2008, Cowen pled guilty to two counts of second-degree sodomy; first-degree unlawful transaction with a minor; incest; four counts of first-degree sexual abuse; and, possession of drug paraphernalia, second offense. During the plea colloquy, Cowen told the trial court Eaves had done all he had asked her to do; he had received all the time needed to speak with Eaves about the Commonwealth's offer; and he had no concerns about Eaves' representation.
Between entry of the guilty plea and final sentencing, however, Cowen told Eaves he wanted to withdraw the guilty plea. Eaves strongly cautioned against withdrawing the plea and refused to help him do so, but advised Cowen to ask the court to appoint a new attorney and told him how to seek withdrawal of his guilty plea during his next court appearance. Thereafter, Cowen filed a pro se motion to withdraw his guilty plea claiming he had a conflict of interest with Eaves.
Because the presentence sex offender treatment evaluation had not been received, sentencing did not occur as planned on June 23, 2008. However, Cowen's handwritten motion to withdraw his guilty plea was addressed that day. Cowen told the trial court he did not believe Eaves was representing him as she should. The Commonwealth stated it was unaware of any basis for allowing withdrawal of the plea and pointed out the motion lacked specificity. Eaves said the motion was "unfounded and ill-advised." The trial court denied the motion from the bench and entered a written order denying the motion two days later.
On August 4, 2008, Cowen was sentenced to serve fifty years, consistent with the plea agreement. Cowen did not appeal. Judgment became final on September 4, 2008.
On April 8, 2010, Cowen filed a pro se RCr 11.42 motion alleging he was denied effective assistance of counsel when Eaves refused to help him withdraw his guilty plea. He further alleged the plea was not made knowingly, intelligently and voluntarily because Eaves coerced him into pleading guilty. He specifically alleged three arguments:
Kentucky Rules of Criminal Procedure. --------
counsel (1) failed to request a (sic) evidentiary hearing on Movant's request to withdraw guilty plea because of a (sic) involuntary plea. (2) failed to prepare defense. (3) When counsel forced Movant to except (sic) deal by threats of his son being tried as a (sic) adult., (sic) all in violation of the Movant's rights under the 5th, 6th, and 14th Amendments of the U.S. Constitution, as well as §7 and §11 of the Kentucky Constitution.Cowen requested appointment of counsel and an evidentiary hearing. The motion was denied on September 16, 2010.
On January 28, 2011, Cowen filed a pro se supplement to his RCr 11.42 motion. He alleged again Eaves had failed to move to withdraw the guilty plea, and added new arguments: Eaves erroneously advised him he faced a maximum sentence of "Life + 140 years in prison" if he stood trial—his sole reason for entering the plea; Cowen could not comprehend Eaves' letters; and, Eaves did not investigate mitigating evidence.
The trial court entered another opinion and order on April 3, 2014, fully incorporating the denial of RCr 11.42 relief it had entered on September 16, 2010, and addressing the new claims raised in the supplement. Ultimately, the trial court found Cowen had not established a reasonable probability he would not have pled guilty and would have demanded trial but for counsel's errors. Furthermore, the trial court found Cowen had not satisfied the two-prong standard announced in Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) (deficient attorney performance resulting in prejudice). Cowen appealed the denial of relief.
On December 18, 2015, a panel of this Court affirmed the judgment and conviction, concluding "Cowan (sic) did not receive ineffective assistance of counsel prior to entering his plea." Cowen v. Commonwealth, 2014-CA-000737-MR, 2015 WL 9264456, at *9 (Ky. App. Dec. 18, 2015) ("Cowen I"). However, on the strength of Commonwealth v. Tigue, 459 S.W.3d 372, 384 (Ky. 2015) (motion to withdraw guilty plea before entry of final judgment of conviction and sentence is critical stage at which right to effective assistance of counsel attaches) —a case rendered after entry of Cowen's guilty plea—the panel reversed and remanded for further proceedings. The panel found, "Cowan (sic) was completely denied counsel and conflict-free counsel on his motion to withdraw his guilty plea." Believing new counsel should have been appointed on the motion to withdraw the plea, the panel affirmed the trial court in part and reversed in part and remanded. Finality of that Opinion was endorsed on January 28, 2016.
On May 13, 2016, new counsel moved the trial court to consider allowing Cowen to withdraw his guilty plea based on his claims counsel had coerced him into pleading guilty; counsel had provided erroneous advice; and, counsel had played on Cowen's emotions regarding his son. The Commonwealth opposed the motion, arguing any hearing would be duplicative because it had already been established Eaves merely stated a strong case for Cowen to plead guilty; she did not coerce or unduly influence him to plead guilty. Advising "a client to plead guilty is not an indication of any degree of ineffective assistance." Beecham v. Commonwealth, 657 S.W.2d 234, 236-37 (Ky. 1983) (citing Glass v. Commonwealth, 474 S.W.2d 400 (Ky. 1971)).
The trial court convened a hearing to consider the renewed motion to withdraw on September 12, 2016. Both Eaves and Cowen testified. Eaves testified she has significant memory issues and no recollection of representing Cowen.
Cowen testified Eaves visited him a couple of times in jail, telling him if he took the offer of fifty years, his mentally-challenged son—who was also charged with felony sex crimes involving minors—would not be treated as harshly. Cowen said he asked Eaves questions, but she could not answer his questions. Cowen admitted he pled guilty to help his son and thought his son would benefit if he pled guilty.
On November 21, 2016, the trial court entered an opinion and order applying Bronk v. Commonwealth, 58 S.W.3d 482, 486-87 (Ky. 2001) (quoting Sparks v. Commonwealth, 721 S.W.2d 726, 727-28 (Ky. App. 1986)). Allowing a defendant to withdraw a voluntarily-entered guilty plea under RCr 8.10 is a matter of court discretion. When a defendant claims a plea was involuntary, the court must consider the totality of the circumstances and presume voluntariness from a proper plea colloquy. Once a plea is determined to have been involuntarily entered, the motion to withdraw must be granted. Under Strickland, to establish ineffective assistance of counsel there must be proof counsel erred so seriously he was not acting within the range of professionally competent assistance and, had the errors not occurred, the defendant probably would not have pled guilty and would have insisted on going to trial. Id.
In denying the motion, the trial court found no evidence of coercion resulting from bad legal advice. In reviewing the original appeal, this Court had already determined Eaves' bad advice about Cowen's maximum sentence (life as opposed to "Life + 140 years in prison") was outweighed by her repeated advice he would receive a life sentence. Cowen established neither that Eaves' erroneous advice caused him to plead guilty, nor that his plea was involuntary. As previously determined, the record shows Cowen understood Eaves' letters, strategy and advice. On re-examination of the plea colloquy, the trial court confirmed "Cowen individually acknowledged each charge to which he pled guilty and informed the Court of the conduct that supported the charges and his plea." There is no indication Cowen misunderstood the proceedings or the plea agreement.
The trial court then turned its focus to Cowen's argument he pled guilty to prevent his son from being tried as an adult and to receive treatment and counseling. While the hope of leniency for his son might have swayed Cowen's thinking and constituted an "incentive" to plead, it did not rise to the level of coercion. As stated by the trial court,
[b]y his own admission, Cowen sexually abused his son and, possibly as a result of Cowen's conduct, his son had been sexually abusing others. Any depression or guilt Cowen may have experienced as a result of having to face this reality would not support a finding that Cowen's plea was involuntary.Based on the totality of the circumstances, the trial court concluded Cowen had not overcome the presumption of a knowing, voluntary and intelligent guilty plea and denied the motion to withdraw the guilty plea.
This appeal flows from a specific remand for a limited purpose—to resolve Cowen's attempt to withdraw his guilty plea and counsel's refusal to assist him. However, Cowen couples with that single issue, re-argument of numerous claims (incomprehensible communication, lack of mitigation investigation and erroneous advice to enter guilty plea) previously rejected by this Court in Cowen I. Prior resolution of those successive claims is res judicata; they will not be revisited. McQueen v. Commonwealth, 949 S.W.2d 70, 71 (Ky. 1997); Crick v. Commonwealth, 550 S.W.2d 534, 535 (Ky. 1977).
Our review is limited to whether, on remand, the trial court abused its discretion in denying Cowen's renewed motion to withdraw his 2008 guilty plea. Discerning no proof his plea was involuntary, denying the motion was wholly within the trial court's discretion. Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky. App. 2004). Cowen testified he had a personal motive for pleading guilty—protecting his son. In light of that motive, there was no abuse of discretion. Rodriguez v. Commonwealth, 87 S.W.3d 8, 10 (Ky. 2002).
For the foregoing reasons, the opinion and order of the Hopkins Circuit Court denying Cowen's motion to withdraw his plea of guilty, is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Eddie Cowen, pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Mark D. Barry
Assistant Attorney General
Frankfort, Kentucky