REBECCA MERCER v. COMMONWEALTH OF KENTUCKY
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RENDERED:
September 18, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1997-CA-002388-MR
REBECCA MERCER
v.
APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE HUGH W. ROARK, JUDGE
ACTION NO. 96-CR-00083
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * * * * * * *
BEFORE:
ABRAMSON, BUCKINGHAM, and COMBS, Judges.
COMBS, JUDGE.
Rebecca Mercer (Mercer) appeals from the judgment
of the Hardin Circuit Court entered on September 10, 1997,
ordering her to serve eighteen (18) months in prison following
her guilty plea to three counts of theft by deception over
$300.00.
We affirm.
In March 1996, the Hardin County Grand Jury indicted
Mercer on three felony counts of theft by deception over $300.00
(KRS 514.040) involving the purchase of approximately $3,256.00
worth of merchandise with bad checks.
Over the next several
months, the trial court conducted several pretrial conferences at
which the parties discussed settlement of the case.
Finally, on
June 24, 1997, Mercer entered a plea of guilty to all three
counts of the indictment pursuant to a plea agreement with the
Commonwealth according to which the Commonwealth recommended a
sentence of eighteen (18) months on each of the three counts to
run concurrently with each other; the Commonwealth also agreed to
take no position on probation.
Mercer asked the trial judge to allow her to submit an
alternative sentencing program pursuant to KRS 500.095, which the
trial court agreed to consider.
At the sentencing hearing on
September 9, 1997, Mercer presented an extensive alternative
sentencing proposal that included potential participation in
numerous programs, including road work, community volunteer
service, juvenile outreach, disabled assistance, counseling and
self-help groups, legal aid services, school seminars with
students, a parenting program and weekly meetings.
After
listening to Mercer's proposal, the trial court sentenced Mercer
in accordance with the Commonwealth's recommendation to serve
eighteen (18) months in prison on each of the three theft counts
to run concurrently.
This appeal followed.
Mercer argues that her guilty plea is invalid because
it was not entered voluntarily, knowingly, and intelligently.
More specifically, she contends that her plea was not voluntary
because she believed that she would receive alternative
sentencing rather than imprisonment.
She also maintains that her
plea was not intelligently entered because her attorney was not
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very helpful and did not generate confidence.
Mercer argues that
her rights and interests were not protected because she did not
receive the benefits of the alternative sentencing plan she
submitted to the circuit court.
In general, a valid guilty plea waives all defenses
except for jurisdictional issues -- such as that the indictment
charged no offense.
(1986).
Bush v. Commonwealth, Ky., 702 S.W.2d 46, 48
The test for determining the validity of a guilty plea
is whether it represents a voluntary and intelligent choice among
the alternative courses of action open to a defendant.
North
Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L. Ed.
2d 163 (1970); Kiser v. Commonwealth, Ky. App., 829 S.W.2d 432,
434 (1992).
In order to be valid, a guilty plea must be
voluntary, knowing and intelligent.
Boykin v. Alabama, 395 U.S.
238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); Tollett v.
Henderson, 411 U.S. 258, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973).
However, the validity of a guilty plea is determined from the
totality of the circumstances surrounding it rather than from
reference to some specific key words recited at the time it was
taken.
Kotas v. Commonwealth, Ky., 565 S.W.2d 445, 447 (1978);
Sparks v. Commonwealth, Ky. App., 721 S.W.2d 726, 727 (1986).
During the guilty plea hearing, the trial court
conducted a thorough colloquy with Mercer concerning the nature
and consequences of the guilty plea.
The trial court expressly
informed Mercer of her right to call witnesses, her right to
cross-examine witnesses, her right not to testify against
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herself, the burden on the prosecution to prove guilt on each
element of the offenses beyond a reasonable doubt, and the
requirement of an unanimous jury guilty verdict.
The trial court
asked Mercer if she understood that by pleading guilty, she was
giving up those rights and the right to bring a direct appeal of
the conviction.
Mercer responded that she understood the waiver
of her rights and that she had signed the Motion to Enter Guilty
Plea Form that described the consequences of the guilty plea and
her rights.
Mercer indicated that she had fully discussed the
case including any defenses with her attorney and that she was
very satisfied with her attorney's performance.
Mercer responded
negatively when the trial judge asked her if she had been
threatened or coerced into pleading or if anyone had made any
promise to her to cause her to plead guilty other than the plea
agreement with the Commonwealth.
Mercer also acknowledged that
she had been through a guilty plea proceeding before and that she
was familiar with the procedure.
Mercer first raised the issue of alternative sentencing
at the hearing on her motion to dismiss the indictment on May 28,
1996.
At that time, she argued that her repeated misconduct in
passing bad checks was related to an emotional and mental problem
that could be treated.
She expressed a desire to plead guilty
with an alternative sentencing plan.
The trial court informed
Mercer that she was free to attempt to negotiate a plea bargain
with the Commonwealth.
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On June 25, 1996, Mercer again raised the issue of
alternative sentencing in connection with a guilty plea.
At that
time, the prosecutor stated that he was not agreeing to recommend
alternative sentencing and that his plea offer on a guilty plea
did not include alternative sentencing.
He indicated that the
plea offer from the Commonwealth was an eighteen-month sentence
on each offense.
Mercer's attorney explained to her that the
Commonwealth's plea offer did not include a term related to
alternative sentencing.
The prosecutor unequivocally told Mercer
that he objected to alternative sentencing in her case and he
would not include it as a part of the plea agreement.
They
discussed whether she would have to serve the sentence
consecutively or concurrently with the sentences on other prior
convictions and the amount of time she would have to serve before
being eligible for parole; Mercer then withdrew her guilty plea.
However, she stated during the hearing that she was completely
satisfied with her attorney.
On August 13, 1996, Mercer again appeared before the
trial court on various pro se motions during which the parties
and the trial judge discussed the actual time she would serve on
an eighteen-month sentence and the role of parole.
They also
discussed the awarding of jail-time credit on a prison sentence
and whether the sentence would run consecutively or concurrently
under KRS 533.060(2).
Mercer eventually entered her guilty plea
in June 1997 pursuant to a plea agreement containing the original
terms proposed by the Commonwealth in June 1996.
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The record shows that Mercer's guilty plea was
voluntary, knowing, and intelligent.
She was fully aware of her
constitutional rights and understood the consequences of the
plea.
See Commonwealth v. Crawford, Ky., 789 S.W.2d 779 (1990);
Centers v. Commonwealth, Ky. App., 799 S.W.2d 51 (1990).
Although she raised the issue of alternative sentencing several
times, the Commonwealth unambiguously not only refused to
recommend alternative sentencing -- but vigorously opposed it.
During both the first guilty plea hearing in June 1996 and the
final sentencing hearing in September 1997, the Commonwealth
stated that the plea agreement involved an eighteen-month
sentence of imprisonment.
The record reveals that Mercer was
aware of the Commonwealth's opposition to alternative sentencing
and that she was concerned about the amount of time she would
have to spend in prison on a conviction.
Under KRS 533.010(2), 500.095 and 533.030(6), the trial
court may consider alternative sentencing even though a defendant
commits a Class D Felony while on parole.
Corman v.
Commonwealth, Ky. App., 822 S.W.2d 421 (1991).
However, a
defendant has no right to alternative sentencing; the issue is
wholly discretionary with the trial judge.
See Turner v.
Commonwealth, Ky., 914 S.W.2d 343 (1996); Hughes v. Commonwealth,
Ky., 875 S.W.2d 99 (1994).
Mercer submitted her alternative
sentencing plan prior to final sentencing, and the trial court
considered her request for alternative sentencing at the
sentencing hearing.
In its final judgment, the trial court made
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a specific finding that probation or probation with an
alternative sentencing plan would unduly depreciate the
seriousness of Mercer's crime.
of passing bad checks.
Mercer had an extensive history
She was on parole for similar offenses at
the time she committed the Hardin County offenses, and she had
several pending misdemeanor bad check charges in other counties
at the time she was indicted in Hardin County.
The trial court
did not abuse its discretion in failing to sentence Mercer under
her alternative sentencing proposal.
Moreover, Mercer was familiar with the judicial system
and the trial court's authority in sentencing.
The record
clearly refutes Mercer's allegation that she expected that she
would receive probation under an alternative sentencing plan.
Even if she had had such an impression, it would not have
invalidated these proceedings since a defendant's subjective
expectation on sentencing does not render the guilty plea
involuntary or unintelligent.
See, e.g., Spinelli v. Collins,
992 F.2d 559 (5th Cir. 1993) (defendant's mistaken belief not
based on any promises by defense attorney, prosecutor or court
does not invalidate guilty plea); Self v. Blackburn, 751 F.2d
789, 792-93 (5th Cir. 1985); Smith v. McCotter, 786 F.2d 697 (5th
Cir. 1986).
As the court stated in Tahamtani v. Lankford, 846
F.2d 712, 714 (11th Cir. 1988)
In short, Tahamtani pled guilty on the mere hopeful
expectation, possibly rising to the level of an
assumption, that he would receive a probated sentence.
In light of the fact that he knew that there was a
possiblity that he could receive the [prison] sentence
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that was imposed, his disappointment with the result is
not grounds to set aside the guilty plea.
Finally, Mercer challenges the “intelligent” portion of
the Boykin test by alleging that her attorney was not very
helpful.
However, Mercer does not contend that his actions or
alleged omissions rose to the level of ineffective assistance of
counsel.
In order to establish ineffective assistance of counsel
with respect to a guilty plea, a person must satisfy a two-part
test showing both that counsel's performance was deficient in
that he made serious errors outside the wide range of
professionally competent assistance 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 pled guilty but
would have insisted on going to trial.
Hill v. Lockhart, 474
U.S. 52, 58, 106 S. Ct. 366, 370, 80 L. Ed. 2d 203 (1985);
Roberson v. Commonwealth, Ky., 913 S.W.2d 310, 316 (1994); Skaggs
v. Commonwealth, Ky. App., 885 S.W.2d 318, 320 (1994).
On the contrary, Mercer complimented her attorney on
his performance and assistance on several occasions.
She was
personally very active and aggressively protected her interests
by filing several motions pro se and seeking a continuance.
Mercer has pointed to no specific facts illustrating erroneous or
inadequate performance by her attorney; nor has she asserted that
she would have gone to trial rather than plead guilty.
Mercer
has not demonstrated (and the record does not reveal) that she
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received inadequate assistance of counsel.
This argument must
fail.
We affirm the order of the Hardin Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Elizabeth Shaw
Richmond, KY
A. B. Chandler, III
Attorney General
Rickie L. Pearson
Assistant Attorney General
Frankfort, KY
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