Opinion
NO. 2014-CA-000143-MR
05-22-2015
DAVID ANTHONY PETTY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Shannon Dupree Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM EDMONSON CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO. 10-CR-00032
OPINION
AFFIRMING
BEFORE: DIXON, KRAMER, AND J. LAMBERT, JUDGES. KRAMER, JUDGE: David Anthony Petty appeals the Edmonson Circuit Court's order denying his motion to withdraw his guilty plea to the charges of complicity to criminal abuse in the first degree, child twelve or under, and second-degree unlawful transaction with a minor. After a careful review of the record, we affirm because Petty has failed to show that his guilty plea was involuntarily entered or that the circuit court abused its discretion in denying his motion to withdraw his guilty plea.
I. FACTUAL AND PROCEDURAL BACKGROUND
Petty was indicted on the following charges: (a) twenty counts of criminal abuse in the first degree; and (b) ten counts of sexual abuse in the first degree. The Commonwealth provided Petty with an offer on a plea of guilty. In that offer, the Commonwealth proffered to amend one of the first-degree sexual abuse charges to second-degree unlawful transaction with a minor, and to amend one of the charges of criminal abuse in the first degree, child twelve or under, to complicity to criminal abuse in the first degree, child twelve or under. It also offered that if Petty entered a guilty plea to the amended charges, the Commonwealth would dismiss all other charges. The Commonwealth further offered to recommend sentences of ten years of imprisonment for the amended charge of complicity to criminal abuse in the first degree and five years of imprisonment for the amended charge of second-degree unlawful transaction with a minor, in exchange for Petty's guilty plea. Petty moved to enter a guilty plea in accord with the Commonwealth's offer on a plea of guilty.
The circuit court accepted Petty's guilty plea and adjudged him guilty of the amended charges. The court also dismissed the remaining charges. Prior to sentencing, Petty moved to withdraw his guilty plea on the basis that his plea was not voluntary. After conducting a hearing on the motion, the circuit court denied Petty's motion to withdraw his guilty plea. The court sentenced Petty to ten years of imprisonment on the amended charge of complicity to criminal abuse in the first degree and five years of imprisonment on the amended charge of second-degree unlawful transaction with a minor. The sentences were ordered to run consecutively to each other for a total sentence of fifteen years of imprisonment. Petty now appeals, contending that the circuit court erred in denying his motion to withdraw his guilty plea.
II. STANDARD OF REVIEW
Petty appeals the denial of his motion to withdraw his guilty plea, which was based upon his claim that his guilty plea was involuntarily entered because defense counsel had misadvised him regarding parole eligibility.
Once a criminal defendant has pleaded guilty, he may move the trial court to withdraw the guilty plea, pursuant to RCr 8.10. If the plea was involuntary, the motion to withdraw it must be granted. However, if it was voluntary, the trial court may, within its discretion, either grant or deny the motion. Whether to deny a motion to withdraw a guilty plea based on a claim of ineffective assistance of counsel first requires a factual inquiry into the circumstances surrounding the plea, primarily to ascertain whether it was voluntarily entered. The trial court's determination on whether the plea was voluntarily entered is reviewed under the clearly erroneous standard. A decision which is supported by substantial evidence is not clearly erroneous. If, however, the trial court determines that the guilty plea was entered voluntarily, then it may grant or deny the motion to withdraw the plea at its discretion. This decision is reviewed under the abuse of discretion standard. A trial court abuses its discretion when it renders a decision which is arbitrary, unreasonable, unfair, or unsupported by legal principles.Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky. App. 2004) (internal quotation marks and footnotes omitted).
III. ANALYSIS
Petty contends that the circuit court erred in denying his motion to withdraw his guilty plea. Specifically, he alleges that his guilty plea was not voluntarily entered because his defense counsel erroneously told him when he entered his guilty plea that the parole eligibility for the first-degree criminal abuse with which he was charged in the indictment was eighty-five percent., Thus, Petty asserts that because he thought he faced twenty counts that carried an eighty-five percent parole eligibility, he chose to plead guilty. However, Petty argues that after he entered his plea but before sentencing, defense counsel
Although Petty does not specifically contend that he received the ineffective assistance of counsel, we find that he is effectively raising such a claim because he asserts that his guilty plea was involuntary because counsel incorrectly advised him regarding parole eligibility.
Petty raises no challenges concerning his unlawful transaction with a minor conviction, so we do not review that conviction.
realized that although first-degree criminal abuse is listed as a violent offense, it is not subject to [eighty-five percent] parole eligibility. Mr. Petty had already been in jail for three years on this matter. Counsel contended that if Mr. Petty had realized the criminal abuse charges carried a [twenty percent] parole eligibility, he very well may have decided to go to trial - especially since he had already been in custody for three years.
During the hearing on Petty's motion to withdraw his guilty plea, Petty acknowledged that during his plea colloquy he stated that he understood what the plea agreement said; he was not coerced into entering his guilty plea; and he was pleading guilty knowingly, voluntarily and willingly. Therefore, the circuit court denied Petty's motion to withdraw his guilty plea because the court found that his guilty plea was voluntarily, knowingly, and willingly entered.
In order to be valid, a guilty plea must be entered knowingly, voluntarily, and intelligently.
The test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. There must be an affirmative showing in the record that the plea was intelligently and voluntarily made. However, 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.Sparks v. Commonwealth, 721 S.W.2d 726, 727 (Ky. App. 1986) (internal quotation marks and citations omitted).
In order "to be entitled to relief from a guilty plea on the ground of ineffective assistance of counsel a defendant must show both that counsel provided deficient assistance and that he, the defendant, was prejudiced as a result." Commonwealth v. Pridham, 394 S.W.3d 867, 875 (Ky. 2012).
To establish deficient performance, a person challenging a conviction must show that counsel's representation fell below an objective standard of reasonableness. . . . A court considering a claim of ineffective assistance must apply a "strong presumption" that counsel's representation was within the "wide range" of reasonable professional assistance. . . . The challenger's burden is to show that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.Pridham, 394 S.W.3d at 875 (internal quotation marks and citations omitted).
In the present case, counsel incorrectly advised Petty that if he were convicted of any of the first-degree criminal abuse counts with which he was indicted, he would have to serve eighty-five percent of the sentences he received for those convictions before becoming eligible for parole. A person convicted of first-degree criminal abuse is a "violent offender." See KRS 439.3401(1)(j). However, first-degree criminal abuse is a Class C felony, see KRS 508.100(2), and as a Class C felony, it is not the type of violent offense for which a defendant is required to serve at least eighty-five percent of his sentence before becoming eligible for parole. See KRS 439.3401(3); Mason v. Commonwealth, 331 S.W.3d 610, 628 (Ky. 2011). In Pridham, the Court "held that counsel had a duty accurately to apprise his client of the violent offender statute's effect on his parole eligibility." Stiger v. Commonwealth, 381 S.W.3d 230, 236 (Ky. 2012) (discussing the holding in Pridham, 394 S.W.3d at 867). Therefore, counsel's incorrect advice to Petty satisfies the deficiency prong of Petty's claim of ineffective assistance of counsel.
Kentucky Revised Statutes.
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The second prong Petty must meet to establish his claim of ineffective assistance of counsel is prejudice. "In the guilty plea context, to establish prejudice the challenger must demonstrate a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Pridham, 394 S.W.3d at 876 (internal quotation marks and citation omitted).
In the present case, Petty cannot establish prejudice. Petty was informed, albeit erroneously, that he would have to serve eighty-five percent of his sentence before becoming eligible for parole if he proceeded to trial and was convicted of first-degree criminal abuse. However, that crime actually required service of only twenty percent of his sentence before he would be parole eligible. Petty's attorney also told him that he would have to serve eighty-five percent of his sentence before becoming eligible for parole on the amended charge for which he pleaded guilty, i.e., complicity to criminal abuse in the first degree. Because one who is convicted "of complicity to a crime occupies the same status as one being guilty of the principal offense," see Wilson v. Commonwealth, 601 S.W.2d 280, 286 (Ky. 1980), Petty's complicity to criminal abuse in the first degree conviction is a violent offense and a Class C felony, just as criminal abuse in the first degree is a violent offense and a Class C felony. As such, it also requires service of only twenty percent of his sentence prior to becoming parole eligible. We do not find that Petty was prejudiced, considering that at the time he pleaded guilty, he thought that both the criminal abuse charges on which he was indicted and the complicity to criminal abuse charge to which he pleaded guilty carried a harsher parole eligibility requirement, i.e., eighty-five percent, than they actually required, i.e., twenty percent.
Further, Petty was not prejudiced by counsel's deficient performance because Petty accepted an offer to plead guilty to charges for which the Commonwealth recommended a total sentence of fifteen years (ten years for the complicity to criminal abuse in the first degree charge and five years for the second-degree unlawful transaction with a minor charge), with the remaining charges against him dismissed. Petty had originally been indicted on twenty counts of criminal abuse in the first degree and ten counts of sexual abuse in the first degree. Both Petty and the Commonwealth agree that if Petty had gone to trial on the counts charged in the indictment, the maximum potential sentence he could have received if convicted was a total of twenty years of imprisonment. Thus, it is not reasonable to believe that Petty would have risked going to trial on thirty charges, for which the total potential punishment was five years greater than the punishment provided for in his plea agreement for the two charges to which he ultimately pleaded guilty. Consequently, his ineffective assistance of counsel claim lacks merit.
Moreover, to the extent that Petty alleges the circuit court should have correctly informed him of his parole eligibility when defense counsel informed the court during the plea colloquy that counsel had advised Petty he would be subject to the eighty-five percent parole eligibility rule, his claim lacks merit. First, the circuit court specifically told Petty when he asked about his parole eligibility that it would not make any representations about parole eligibility because that decision was the responsibility of the parole board based upon the statutes that the parole board has to follow. Second, a trial court is not required to inform a defendant about parole eligibility before he pleads guilty. See Stiger, 381 S.W.3d at 235. Therefore, the circuit court did not err in failing to correctly inform Petty about his parole eligibility.
Because Petty's ineffective assistance of counsel claim and his claim that the court failed to advise him of his parole eligibility fail, Petty has not proven that his guilty plea was involuntary. Consequently, the circuit court could exercise its discretion in deciding whether to grant or deny Petty's motion to withdraw his guilty plea. We find that Petty has not demonstrated that the circuit court abused its discretion in denying his motion.
Accordingly, the order of the Edmonson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Shannon Dupree
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky