TODD CHRISTOPHER ROWE v. COMMONWEALTH OF KENTUCKY
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RENDERED: October 23, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1997-CA-001976-MR
TODD CHRISTOPHER ROWE
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
ACTION NO. 94-CR-00186
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * *
BEFORE:
EMBERTON, GARDNER, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Todd Christopher Rowe (Rowe) appeals from an
order of the Jefferson Circuit Court entered on July 30, 1997,
denying his motion to vacate, set aside or correct judgment
brought pursuant to Kentucky Rule of Criminal Procedure (RCr)
11.42.
After review of the record, the arguments of counsel, and
the applicable law, we affirm.
On the night of January 12, 1994, Rowe was involved in
an argument over his girlfriend with Steve Ritching and Robert
Green at a bingo parlor.
Ritching and Green later left the
parlor in a Chevrolet Camaro that was owned and driven by Melissa
Young.
As the three were leaving, Rowe identified the group to
three of his friends:
William Graham.
Carl Schwalm, Christopher Byers, and
These three individuals were asked to go to the
bingo parlor because Rowe had been told that Ritching and Green
were going to assault him.
Rowe told his friends about the
disturbance with Ritching and Green and that they had stolen
marijuana from his car.
Rowe allegedly expressed his displeasure
with Ritching and Green.
Rowe also indicated to his friends that
he wanted their “butts kicked.”
Schwalm, Byers, and Graham
followed Young's vehicle onto the Gene Snyder Freeway.
At one
point, Schwalm, who was driving, pulled his car along side
Young's Camaro.
Graham, who was in the front passenger's seat,
took a .357 Magnum pistol and fired six shots into Young’s car.
Young was shot in the head, and Ritching, who was in the front
passenger's seat, was shot in the left eye.
wounds.
Young died of her
Green, who was in the back seat, was uninjured.
Schwalm
speeded off after the shooting, and Graham emptied the spent
bullet casings onto the freeway.
After a police investigation, Schwalm, Graham, and
Byers were arrested and charged with three counts of attempted
murder.
Graham, Byers, and Rowe gave statements to the police.
-2-
On January 26, 1994, the Jefferson County Grand Jury indicted
Byers, Graham, Schwalm, and Rowe on complicity to commit one
felony count of capital murder, one felony count of first-degree
assault, and one felony count of first-degree wanton
endangerment.1
In June 1994, the trial court ordered that the
defendants be tried separately.
On March 14, 1995, Rowe entered a guilty plea pursuant
to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L.
Ed. 2d 162 (1970) to one amended felony count of reckless
homicide and one amended count of criminal facilitation to
Assault I, and to Wanton Endangerment I.
Under the plea
agreement, the Commonwealth amended the charges of murder and
Assault I, and recommended sentences of five (5) years on
reckless homicide, five (5) years on criminal facilitation to
Assault I, and five (5) years on Wanton Endangerment I, to run
consecutively for a total sentence of fifteen (15) years.
Consistent with the Commonwealth’s recommendation, the trial
court sentenced Rowe to fifteen (15) years in prison.
In January 1996, Rowe filed a pro se motion to set
aside his conviction pursuant to Kentucky Rule of Civil Procedure
(CR) 60.02 on the ground that the Commonwealth had not complied
1
Graham was also indicted on one felony count of
tampering with evidence based on his having hidden the murder
weapon in a field. The police recovered the gun after receiving
information of its whereabouts from Graham and Byers.
-3-
with an earlier plea agreement by recommending sentences at the
guilty plea that were longer than had been agreed to by the
parties.
By counsel, Rowe supplemented his CR 60.02 motion and
requested an evidentiary hearing on the plea agreement.
The
trial court denied the motion without a hearing, stating Rowe
must first bring an RCr 11.42 motion before filing a CR 60.02
motion.
Rowe appealed the denial.
While the denial of the CR 60.02 motion was on appeal2,
in April 1997, Rowe filed an RCr 11.42 motion pro se in which he
raised the same issue of an alleged breach of a plea agreement by
the Commonwealth, and also a claim of violation of his right to a
speedy trial.
In its response to the motion, the Commonwealth
stated that Rowe did not accept the earlier plea offers, but he
ultimately accepted the fifteen-year plea offer.
Appointed
counsel supplemented the RCr 11.42 motion, arguing that Rowe
deserved an evidentiary hearing on a breach of a plea agreement
by the Commonwealth and that the guilty plea was not entered
voluntarily.
The trial court summarily denied the RCr 11.42
2
On May 29, 1998, this Court rendered an unpublished
opinion on the appeal of the denial of Rowe's CR 60.02 motion.
Rowe v. Commonwealth, 96-CA-0784-MR. In that opinion, we agreed
with the trial court that Rowe should have brought his compliant
via RCr 11.42, rather than CR 60.02, but we addressed the merits
of his claim. This Court held that an evidentiary hearing was
not necessary because the record clearly refuted Rowe's claim
that the Commonwealth violated the binding plea agreement or that
his guilty plea was involuntary because he was misled about the
terms of the plea agreement.
-4-
motion without a hearing in July 1997.
On August 5, 1997, Rowe
filed the appeal herein from the order denying his RCr 11.42
motion.
In his original RCr 11.42 motion, Rowe raised two
issues:
the Commonwealth's breach of the plea agreement and the
violation of his right to a speedy trial.
On appeal, counsel has
restated the issues on appeal as a single issue of ineffective
assistance of counsel.
Given the failure to address the issue of
speedy trial on appeal, Rowe has waived that issue.
See Ballard
v. King, Ky., 373 S.W.2d 591, 593 (1963); Milby v. Mears, Ky.
App., 580 S.W.2d 724, 727 (1979).
A guilty plea may be rendered invalid if the defendant
received constitutionally ineffective assistance of counsel under
the Sixth Amendment.
Cuyler v. Sullivan, 446 U.S. 335, 344, 100
S. Ct. 1708, 1716, 64 L. Ed. 2d 333 (1980); Shelton v.
Commonwealth, Ky. App., 928 S.W.2d 817 (1996).
Where an
appellant challenges a guilty plea based on ineffective counsel,
he must show both that counsel made serious errors outside the
wide range of professionally competent assistance, McMann v.
Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d
763 (1970), and 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.
Hill v. Lockhart, 474 U.S. at 58, 106 S. Ct. at 370;
-5-
accord Sparks v. Commonwealth, Ky. App., 721 S.W.2d 726, 727-28
(1986).
A "reasonable probability" is a probability sufficient
to undermine confidence in the outcome of the proceeding.
Strickland, 466 U.S. 694, 104 S. Ct. at 2068.
In the case at bar, Rowe argues that defense counsel
was ineffective for misinforming him about the Commonwealth's
plea offer.
He contends that his guilty plea was not voluntary
because he believed he was pleading guilty pursuant to a plea
offer for five years in prison, rather than fifteen years.
Rowe
refers to two letters from his attorney discussing plea offers.
In June 1994, defense counsel notified Rowe that the Commonwealth
had offered to amend the indictment and recommend a total
sentence of ten years on three felony offenses.
On March 13,
1995, defense counsel wrote a letter urging Rowe to accept the
Commonwealth's plea offer with a maximum prison sentence of five
years.
This letter noted that Rowe had rejected this offer
earlier in the day and the trial scheduled for the next day could
result in a longer sentence.
During the guilty plea hearing on March 14, 1995, the
trial court thoroughly questioned Rowe on the plea and the plea
agreement.
COURT: The case is before the Court today
for trial. It's my understanding an
agreement has been reached in this case. Mr.
Hickey, will you relay to the court the
nature of the agreement.
-6-
MR. HICKEY (Attorney for Commonwealth): Yes
your honor, in exchange for a plea of guilty
entered here today, the Commonwealth will
recommend on Count 1, murder, be amended to
Reckless Homicide and a 5 year sentence be
imposed; in addition to that, Count 2,
Assault in the First Degree, to be amended to
Criminal Facilitation to Assault in the First
Degree and a 5 year sentence imposed; Count
3, Wanton Endangerment, we'd recommend a 5
year sentence be imposed on that for a total
sentence of 15 years, all those 3 counts to
run consecutively with each other. Further,
the Commonwealth agrees to leave probation to
the Court's discretion.
COURT: Is that the understanding of the
agreement from the defense?
COUNSEL FOR ROWE:
Yes, sir (in unison).
COURT: Mr. Rowe, would you raise your right
hand. Do you solemnly swear or affirm that
the testimony you are about to give will be
the truth, the whole truth and nothing but
the truth so help you God?
ROWE:
I do.
COURT: Mr. Rowe, your attorneys indicated
that you wish to plead guilty pursuant to
North Carolina v. Alford and in conformance
with the recommendation of the Commonwealth.
Is that what you want to do?
ROWE: Yes, sir (and nods head
affirmatively).
COURT: Do you understand that you're
pleading guilty to reckless homicide and that
that carries a punishment of from 1-15 years
in the penitentiary?
ROWE:
Yes sir (and nods head affirmatively).
COURT: Do you also understand that you're
pleading guilty to criminal facilitation to
Assault in the First Degree and that that
-7-
carries a penalty of from 1-5 years in the
penitentiary?
ROWE:
Yes sir (and nods head affirmatively).
COURT: Do you also understand that you're
pleading guilty to Wanton Endangerment in the
First Degree and that that carries a penalty
of from 1-5 years in the penitentiary?
ROWE:
Yes sir (nods head affirmatively).
. . . .
COURT: Other than the recommendation of the
Commonwealth, have any promises been made to
you in order to get you to plead guilty?
ROWE: No sir (and nods head in
disagreement).
COURT: Anybody threatened you, pressured you
or frightened you in any way to get you to
plead guilty?
ROWE:
No sir (nods head in disagreement).
COURT: Are you satisfied with the advice of
your attorneys?
ROWE:
Yes sir (and nods head affirmatively).
COURT: Do you need any more time to discuss
this with them before entering your pleas?
ROWE: No, sir (and nods head in
disagreement).
COURT: Do you understand that the
Commonwealth is recommending 5 years for the
offense of Reckless Homicide 5 years for the
offense of Facilitation to Assault in the
First Degree and 5 years for the offense of
Wanton Endangerment in the First Degree and
that those run consecutively for a total of
15 years, do you understand that?
ROWE:
Yes, sir (and nods head
-8-
affirmatively).
COURT: Do you also understand that the
Commonwealth is agreeing to leave probation
to this court's discretion and then I will
make the ultimate decision as to probation
and no one has promised you that you're going
to receive probation in this case, have they?
ROWE:
No (and nods head in disagreement).
. . . .
COURT: I have before me Mr. Rowe, documents
entitled Commonwealth's Offer on a Plea of
Guilty and a Motion to Enter a Guilty Plea.
How much education do you have sir?
ROWE:
COURT:
I graduated from high school.
Are you able to read?
ROWE: Yes, sir (and nods head
affirmatively).
COURT:
ROWE:
Did you read these documents?
Yes sir (and nods head affirmatively).
COURT: Did you thoroughly understand the
provisions contained in these documents?
ROWE:
Yes sir (and nods head affirmatively).
COURT: Both what's in type as well as what's
in print?
ROWE:
Yes sir (and nods head affirmatively).
COURT: Did you discuss these thoroughly with
your attorneys?
ROWE:
Yes sir (and nods head affirmatively).
COURT: And is it your signature that appears
on these documents?
ROWE:
Yes sir it is (and nods head
-9-
affirmatively).
COURT: Mr. James and Mr. Gailor, is it your
belief that Mr. Rowe thoroughly understands
each of the provisions contained in each of
these documents?
ATTORNEY JAMES/ATTORNEY GAILOR:
Honor (in unison).
COURT:
Yes your
All right.
COURT: Mr. Rowe, are you pleading guilty
voluntarily and of your own free will?
ROWE: Yes, sir I am (and nods head
affirmatively).
COURT: You're not pleading just to get this
over with or for any other reason other than
your desire to plead guilty?
ROWE:
No, sir (and nods head affirmatively).
COURT: You've had plenty of time to discuss
all factual and legal defenses that you may
have with your attorneys, is that correct?
ROWE: Yes, sir (and nods head affirmatively).
COURT: Have I said anything at all that you
don’t understand?
ROWE: No, sir (and nods head in
disagreement).
COURT: Do you have any questions that you’d
like to ask me at this time?
ROWE: No, sir (and nods head in
disagreement).
(Emphasis added.)
Rowe argues that he was confused about the plea
agreement and the Commonwealth’s recommended sentence at the time
-10-
of the guilty plea.
He relies primarily on the March 13, 1995,
letter of his attorney.
He contends that defense counsel was
deficient for misrepresenting the plea offer because the letter
states the maximum sentence was five years, but he actually
received a fifteen-year sentence.
The above excerpts from the
guilty plea hearing completely rebut Rowe’s claim of confusion.
The March 13 letter is not dispositive because it merely restates
one of the Commonwealth’s plea offers, which Rowe himself
rejected.
The Commonwealth indicates that it withdrew the five-
year offer and Rowe accepted the fifteen-year offer just before
the trial was to begin.
As the court stated in Commonwealth v.
Reyes, Ky., 764 S.W.2d 62, 64 (1989):
“It seems obvious that if the state makes a
promise to an accused and the accused takes
no action in reliance on the promise, the
state may withdraw the offer. No agreement
has been reached. There is nothing to
enforce. The prosecutor’s right to withdraw
is equal to his right to withhold an offer.
No defendant has a constitutional right to
plea bargain. The prosecutor may engage in
it or not in his sole discretion. If he
wishes, he may go to trial. Weatherford v.
Bursey, 429 U.S. 545, 97 S. Ct. 837, 51 L.
Ed. 2d 30 (1977). If the prosecutor makes a
plea bargain offer and withdraws it before it
is accepted or detrimentally acted upon by
the defendant, the defendant will not be
heard to complain that his constitutional
rights to due process and effective counsel
have been violated. Government of the Virgin
Islands v. Scotland, 614 F.2d 360 (CA 3,
1980).”
Rowe rejected several plea offers and did not detrimentally rely
-11-
on the June 1994 or March 13, 1995 offers.
Consequently, the
Commonwealth did not breach any binding plea agreement and Rowe
has not established any justifiable reliance on the earlier plea
offers.
Rowe’s allegation that the Commonwealth’s Offer on a
Plea of Guilty document was confusing and could be construed to
recommend a sentence of two to ten years is refuted by the
record.
This document is clear and the terms were restated twice
during the guilty plea hearing.
Rowe indicated that he read and
understood this document during the guilty plea hearing.
Therefore, for the foregoing reasons, the judgment of
the Jefferson Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Elizabeth Shaw
Richmond, Kentucky
A. B. Chandler, III
Attorney General
Vickie L. Wise
Assistant Attorney General
Frankfort, Kentucky
-12-
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