Opinion
NO. 2016-CA-000790-MR
04-06-2018
GARIN LUKEN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Julia K. Pearson Assistant Public Advocate Department of Public of Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE KATHLEEN S. LAPE, JUDGE
ACTION NO. 15-CR-00150-001 OPINION
VACATING AND REMANDING
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BEFORE: MAZE, SMALLWOOD, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Garin Luken brings this appeal from a judgment and sentence on plea of guilty entered by the Kenton Circuit Court on May 10, 2016. Luken argues that the trial court erred in not allowing him to withdraw his guilty plea, not appointing conflict counsel and not conducting an evidentiary hearing with conflict counsel. We vacate and remand for further proceedings.
On February 26, 2015, Luken was indicted on three counts of trafficking in a controlled substance in the first degree (cocaine); one count of trafficking in a controlled substance first degree (oxycodone); one count of receiving stolen property (firearm); one count of convicted felon in possession of a firearm; one count of convicted felon in possession of a handgun and one count of persistent felony offender in the first degree. The charges were filed after a confidential informant made several controlled transfers of drugs at Elite Auto Sales in Latonia during the period of November 21, 2014, and January 15, 2015. Luken's wife owned Elite Auto Sales, and he participated in the business.
On March 22, 2016, Luken moved to enter a guilty plea pursuant to an agreement with the Commonwealth. Under its terms, Luken agreed to plead guilty to the four trafficking charges in exchange for the Commonwealth's recommendation of a total sentence of eight-years' imprisonment and dismissal of the remaining charges.
The trial court conducted a hearing pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), to ensure that Luken's plea was entered intelligently and voluntarily. In response to the trial court's questions, Luken stated that he had read and completely understood the motion to enter the guilty plea form, that he was not impaired, that he fully understood what was happening in his case, that his attorney had explained it to him, that he understood the rights he was waiving, and that he had signed the plea form voluntarily and of his own free will. He stated that his attorney had done everything he could expect of him. When the judge asked Luken to tell the court what he had done, he stated that he made a phone call and helped to obtain drugs which he transferred to a confidential informant.
The trial court then noted that the statement of the facts of the case in the Commonwealth's plea offer used the word "purchase" rather than "transfer" in describing one of the transactions. The document, which is in the record, states as follows:
On or about December 5, and 17, 2014, in Kenton County, Kentucky, a confidential informant made controlled purchases of cocaine from the lot of Elite Auto Sales in Latonia. During those occasions the Cocaine was obtained by Garin and Rebecca Luken and transferred to the informant. On December 5, 2014, Garin Luken transferred oxycodone pills to the CI and surveillance units watched him get the pills from Jonathon Maines. On January 5, 2015, in Kenton County, Kentucky, on the lot of Elite Auto, a confidential informant purchased cocaine from Garin Luken and Ray Johnson on the premises. (Emphasis added.)March 24, 2016, Commonwealth's Offer on Plea of Guilty.
The Commonwealth attorney crossed out the word "purchased" in the final sentence and handwrote "transferred" below it. He stated that only the term "transfer" should be used, and that the confidential informant transferred the drugs from Luken and another co-defendant. The trial court accepted the plea and scheduled a final sentencing hearing.
In the period between the entry of the guilty plea and the final sentencing hearing, Luken sent a letter to the judge expressing his dissatisfaction with the proceedings. It stated in part as follows:
[T]here was five of us who was charged on this case and all my co-defendants who was represented by paid attorneys all got misdemeanors or probation and are out on bond since this case began. Me on the other hand having a public defender have been incarcerated since the beginning of this case for 15 months now. . . . I ask the Court to please reconsider my judgment. Your honor . . . I looked you in the eye and told you the truth I don't sell drugs, and that is the truth. I did on the other hand do something I truly regret I went and picked up some drugs for me and my friends to use. My friend forgot to mention she had got in trouble and was trying to get out of trouble at me and my family['s] expense and the expense of my business. She was facing 3 years for heroin. I don't do heroin I did some coke and got it for us one time she got it the second time from a guy we both knew and the third and last time she talked Mr. Johnson into getting it for her and him nor I did not partake in getting it for her or doing it yet I was charged with it on 4 counts why? Kinda hinky if you ask me! But I am willing to accept if you are I'm not a bad person just made bad choice and got high when I got out of SAP[.] I was clean till this relapse in November 2014 . . . Reconsider my judgment . . . I never thought I would get 8 yrs for relapsing. I truly regret my actions.April 21, 2016, Luken letter.
When Luken appeared for final sentencing on April 18, 2016, the trial court judge told Luken that his letter had led her to believe that he wished to withdraw his plea. Luken was placed under oath and asked why he wanted to withdraw his plea. He testified that it was because his co-defendants would serve misdemeanor sentences whereas he would be sentenced to felony time; that there were three alleged buys, yet he was convicted of four counts of trafficking; and that he "didn't do it." The trial court reminded him that at the plea colloquy he had stated that he committed a crime. Luken replied that he did not sell drugs, but picked up drugs for himself and his friend to use. At that point, the Commonwealth attorney reminded the court that the prosecutor who had handled the case and negotiated the plea agreement on behalf of the Commonwealth was not present. The trial court set a new hearing date of May 2, 2016.
At the May hearing, the Commonwealth attorney objected to Luken's attempt to withdraw his plea and argued that he was "playing games." The Commonwealth alleged that Luken was attempting to secure the return of property forfeited by his co-defendants through his guilty plea while avoiding the concomitant punishment by subsequently withdrawing the plea.
Luken testified in response to the trial court's questioning that he had only five minutes to consider the Commonwealth's offer prior to the entry of his plea, and that he was threatened with indictment on another charge if he would not plead guilty.
The trial court stated that it had reviewed the video recording of the plea colloquy and reminded Luken that he had repeatedly assured the court that his guilty plea was willing, voluntary and intelligent. The court reminded him that there had been a "back and forth" regarding the wording of the plea, that Luken had indicated he did not sell the drugs and that "they had used the term transfer which was available." The trial court concluded, "I think you just had a change of heart, and I'm going to deny your motion to withdraw your plea." At that point, the trial court asked Luken whether he wished to proceed with sentencing immediately or set it for another hearing. Luken continued to argue about his plea, saying, "The man who sold the drugs got a misdemeanor and I'm supposed to take a felony? Explain that." He reiterated that he was innocent. The court trial stated that Luken had changed his mind because he did not like the deal he got, and denied his motion to withdraw the plea.
Luken then stated that his attorney had not helped him "since this started." Defense counsel ignored the remark and told the court that he had reviewed the presentence investigation report (PSI) and explained that Luken had issues with it. The trial court asked Luken if the PSI was accurate. Luken replied, "Yes, ma'am." The court asked him if he had reviewed it, and he replied, "Yes." The trial court then formally sentenced Luken in accordance with the plea agreement. This appeal followed.
Luken argues that the trial court failed to consider the totality of the circumstances in denying his motion to withdraw his guilty plea, and that he was entitled to a hearing on the motion where he would be represented by conflict-free counsel. Based on the record, we must agree with Luken to only the extent that he is entitled to an evidentiary hearing on his motion to withdraw his plea at which he is to be represented by conflict-free counsel.
"[A] motion to withdraw a guilty plea made before entry of the final judgment of conviction and sentence is a 'critical stage' of the criminal proceedings to which the right to counsel attaches." Commonwealth v. Tigue, 459 S.W.3d 372, 384 (Ky. 2015). "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." Id. at 386. "[P]rejudice may be presumed, and a per se Sixth Amendment violation may thus be found, when there has been a complete denial of counsel . . . at a critical stage of the criminal proceeding, . . . or when counsel is burdened by an actual conflict of interest[.]" Id. at 385 (internal citations and quotation marks omitted).
When Luken sought to withdraw his plea at the sentencing hearing on April 18, 2016, his attorneys did not speak at all in support of or opposition to his request, although one of the attorneys did explain to Luken that an evidentiary hearing would have to be held on the issue. In his testimony at that hearing and at the hearing held in May, Luken provided the following reasons for withdrawing the plea: that his co-defendants would serve misdemeanor sentences whereas he was sentenced to felony time; that there were three alleged buys, yet he was convicted of four counts of trafficking; that he did not sell drugs, but picked them up for himself and his friend to use (a statement which suggests he may not have understood that the statutory definition of "traffic" includes the "transfer" of a controlled substance): that he had only five minutes to consider the Commonwealth's offer prior to the entry of his plea; and that he was threatened with indictment on another charge if he would not plead guilty. He also commented to one of his attorneys "You have not helped me since this started." At the hearing in May, his attorneys again were completely silent regarding his request and desire to withdraw the plea.
Kentucky Revised Statutes (KRS) 218A.010(55), formerly KRS 218A.010(49). --------
Recently, in Zapata v. Commonwealth, 516 S.W.3d 799 (Ky. 2017), the Kentucky Supreme Court reiterated its position in Tigue 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." Zapata, 516 S.W.3d at 802 (quoting Tigue, 459 S.W.3d 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." Zapata, 516 S.W.3d at 802 (quoting Tigue, 459 S.W.3d at 386).
Because his attorneys' silence while he sought to withdraw his guilty plea meant that Luken's right to counsel at a critical stage in the proceedings was violated, we will follow the directive of Tigue and Zapata and "rewind this matter to the point in time when [Luken] had already entered his plea but before he was sentenced." Zapata, 516 S.W.3d at 802 (quoting Tigue, 459 S.W.3d at 390). "[M]andating a hearing on remand is inappropriate. Instead, the appropriate remedy is to vacate the judgment but not, at this point, the guilty plea, and to remand for further proceedings as may be required, depending on the action of the defendant." Tigue, 459 S.W.3d at 390.
The judgment and sentence on plea of guilty of the Kenton Circuit Court is vacated. The case is remanded to the trial court for further proceedings consistent with this opinion.
ALL CONCUR. BRIEF FOR APPELLANT: Julia K. Pearson
Assistant Public Advocate
Department of Public of Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky