GUYLAND B. WILLIAMS v. COMMONWEALTH OF KENTUCKY
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RENDERED: September 11, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-002227-MR
GUYLAND B. WILLIAMS
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE GARY D. PAYNE, JUDGE
ACTION NO. 95-CR-1065
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE:
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HUDDLESTON, JOHNSON and MILLER, Judges.
JOHNSON, JUDGE:
Guyland Williams (Williams) appeals from an
order of the Fayette Circuit Court entered on August 26, 1997,
denying his motion to withdraw guilty plea brought pursuant to
Kentucky Rules of Criminal Procedure (RCr) 8.10.
the record and the applicable law, we affirm.
After review of
In December 1995, the Fayette County Grand Jury
indicted Williams on one felony count of burglary in the second
degree (Kentucky Revised Statutes (KRS) 511.030), one felony
count of stalking in the first degree (KRS 508.140), one
misdemeanor count of assault in the fourth degree, (KRS 508.030),
and one misdemeanor count of unlawful imprisonment in the second
degree (KRS 509.030).
All of these charges arose out of an
incident involving Williams’ girlfriend.
At a pretrial conference on December 14, 1995, the
Commonwealth presented a plea offer pursuant to which the
Commonwealth would move to dismiss the two misdemeanor charges,
amend the burglary in the second degree charge to burglary in the
third degree, and recommend a sentence of three years on the
burglary offense and one year on the stalking offense.
Williams
rejected this plea offer and the parties continued to try to
negotiate a plea.
At a hearing on January 26, 1996, Williams
entered a guilty plea pursuant to a plea agreement with the
Commonwealth.
The Commonwealth moved to dismiss the two
misdemeanor charges and the stalking charge, and to amend the
burglary charge to burglary in the third degree.
The
Commonwealth then recommended a sentence of two years on the
burglary in the third degree offense and payment of restitution
if Williams were probated.
At that time, the trial court
postponed sentencing until February pending review of a
presentence investigation report (PSI).
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On February 23, 1996, Williams appeared in court with
his attorney for sentencing.
At that time, the trial judge
offered to probate Williams with a sentence of five years on the
burglary in the third degree conviction probated for a period of
three years.
The trial judge stated that Williams could choose
either a probated five-year sentence or two years in prison.
Williams indicated that he preferred the probated five-year
sentence to the two years in prison.
Accordingly, the trial
court sentenced Williams to five years on the burglary in the
third degree conviction, suspended service of the sentence and
placed him on probation for three years with various conditions.
In August 1996, Williams' probation officer filed an
affidavit stating that Williams had violated the terms of his
probation by committing a felony.
Williams had been charged with
and pled guilty to the felony offenses of trafficking in a
controlled substance (cocaine) and being a persistent felony
offender in the second degree.
On October 4, 1996, the trial
court conducted a probation violation hearing in which Williams
stipulated that he had violated the terms of probation by
committing a felony.
The trial court revoked the probation and
ordered Williams to serve the five-year sentence for burglary.
In June 1997, Williams filed a motion to withdraw guilty plea
pursuant to RCr 8.10 alleging the trial court was obligated to
impose only a two-year sentence based on the recommendation of
the Commonwealth or to allow him to withdraw his plea.
court denied the motion.
This appeal followed.
-3-
The trial
Williams argues that the trial court abused its
discretion and violated his right to due process by failing to
allow him to withdraw his guilty plea.
Williams also contends
that under RCr 8.10, the trial court was obligated to give him an
opportunity to withdraw his guilty plea at the sentencing hearing
because the trial court rejected the plea agreement.
Williams
maintains that his belated motion to withdraw the guilty plea
should have been granted because the plea was not voluntary in
that the trial court did not sentence him in accordance with the
Commonwealth's recommendation under the plea agreement.
RCr 8.10 provides as follows:
At any time before judgment the court may
permit the plea of guilty or guilty but
mentally ill, to be withdrawn and a plea of
not guilty substituted.
If the court rejects the plea agreement,
the court shall, on the record, inform the
parties of this fact, advise the defendant
personally in open court or, on a showing of
good cause, in camera, that the court is not
bound by the plea agreement, afford the
defendant the opportunity to then withdraw
his plea, and advise the defendant that if he
persists in his guilty plea the disposition
of the case may be less favorable to the
defendant than that contemplated by the plea
agreement.
The court can defer accepting or rejecting
the plea agreement until there has been an
opportunity to consider the presentence
report [emphases added].
The plain language of RCr 8.10 requires that before judgment if
the trial court rejects the plea agreement, the court shall
afford the defendant the opportunity to then withdraw his plea.
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As the trial court in its order denying relief stated, it “did
not reject the plea agreement but merely gave [Williams] an
opportunity to reject it.”
Williams argues that we should follow the rulings in
Kennedy v. Commonwealth, Ky.App., 962 S.W.2d 880 (1997), Haight
v. Commonwealth, Ky., 760 S.W.2d 84 (1988), and Couch v.
Commonwealth, Ky., 528 S.W.2d 712 (1975).
However, in each of
these cases the defendant moved to withdraw his guilty plea after
the trial court rejected the Commonwealth’s recommended sentence.
In the case sub judice, the trial court did not reject
the Commonwealth’s recommended sentence.
Rather, it gave
Williams a choice: (1) two years in prison pursuant to the
Commonwealth’s recommendation; or (2) probation for three years
with a five-year sentence to be imposed if probation were
violated.
Williams rejected the Commonwealth’s recommended
sentence and opted for the probated five-year sentence.
Thus,
since the sentence that was imposed was chosen by Williams and
the trial court did not reject the Commonwealth’s recommended
sentence, Williams was not entitled to withdraw his plea under
RCr 8.10.
The Fayette Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Hon. Kim Brooks
Covington, KY
Hon. A. B. Chandler, III
Attorney General
Hon. R. Evelyn Freer
Assistant Attorney General
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Frankfort, KY
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