DAMON MCCORMICK v. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 29, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001767-MR
DAMON MCCORMICK
APPELLANT
APPEAL FROM UNION CIRCUIT COURT
HONORABLE TOMMY W. CHANDLER, JUDGE
ACTION NO. 00-CR-00009
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART, REVERSING IN PART,
AND REMANDING
** ** ** ** **
BEFORE:
KNOPF, TAYLOR, AND VANMETER, JUDGES.
VANMETER, JUDGE:
Damon McCormick appeals from a judgment
entered by the Union Circuit Court.
He asserts that the court
abused its discretion by denying his motion to withdraw his
guilty plea, and that the court erred by failing to hold a
competency hearing given the court's knowledge of his history of
mental illness.
We affirm in part, reverse in part, and remand.
McCormick was indicted in March 2000 on charges of
organizing or participating in organizing a criminal syndicate,
knowingly and unlawfully manufacturing methamphetamine, and
being a persistent felony offender (PFO) in the first-degree.
The trial court ordered the Kentucky Correctional Psychiatric
Center (KCPC) to perform psychiatric evaluations of McCormick in
both July 2000 and October 2001.
The evaluators determined that
McCormick's actions were neither a result of mental illness or
defect, nor due to a "lack of substantial capacity either to
appreciate the criminality of his conduct or to conform his
conduct to requirements of law[.]"
They further determined that
McCormick was aware of the roles of the prosecutor, the defense
attorney, and the judge in the courtroom.
Finally, McCormick
correctly explained the concepts of innocence and guilt, as well
as the nature and consequences of a plea bargain.
On May 21, 2003, the court accepted McCormick's guilty
plea to the amended charge of criminal conspiracy to manufacture
methamphetamine and the original charge of engaging in organized
crime.
The PFO charge was dismissed.
Regarding the
circumstances of the guilty plea, the record contains the
following documents: (1) Commonwealth’s Offer on a Plea of
Guilty, purportedly signed by the Commonwealth Attorney,
McCormick, and his counsel; (2) Motion to Enter Guilty Plea,
purportedly signed by McCormick and his counsel; and (3) Order
(Guilty Plea), again purportedly containing the signatures of
McCormick and his counsel, as well as the signature of the trial
judge.
Both the motion and the order contain appropriate
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language concerning the rights McCormick waived by the entry of
a guilty plea, McCormick’s state of mind, the charges and the
range of penalty, and the knowing, intelligent and voluntary
nature of the guilty plea.
The video record of the May 21
hearing, however, discloses only that the Commonwealth made an
oral motion to amend the charge, presumably in exchange for the
guilty plea, that the trial court granted the motion, and that
the only question the trial court asked McCormick was how he
wished to plea to the amended charges, to which McCormick
responded “guilty.”
On July 22, 2003, at his sentencing hearing, McCormick
made an oral motion to withdraw his guilty plea.
The trial
court overruled the motion, and entered a judgment and sentence
in accordance with the Commonwealth's recommendation of "ten
(10) years for Engaging in Organized Crime to run concurrently
with prior sentences and five (5) years for Criminal Conspiracy
to Manufacture Methamphetamine to run consecutively with the ten
(10) year sentence."
McCormick appeals from this judgment.
McCormick claims that the trial court abused its
discretion by denying his motion to withdraw his guilty plea
without first conducting a hearing.
We agree.
RCr 8.10 provides in part that "[a]t any time before
judgment the court may permit the plea of guilty . . . to be
withdrawn and a plea of not guilty substituted."
-3-
While this
language is permissive, the Kentucky Supreme Court held in
Rodriguez v. Commonwealth1 that a trial court may exercise
discretion as to the withdrawal of a guilty plea only after first
determining that the plea was voluntary.
If it is determined
that the plea was not voluntary, "the motion to withdraw must be
granted."
2
This court, after Rodriguez, addressed the procedure a
trial court must follow in deciding whether to grant a
defendant’s motion to withdraw a guilty plea under RCr 8.10.
In
Rigdon v. Commonwealth,3 this court stated:
When a criminal defendant pleads
guilty, Rule 8.10 [sic]4 of the Kentucky
Rules of Criminal Procedure (RCr) requires
the trial court receiving the guilty plea to
determine on the record whether the
defendant is voluntarily pleading guilty.[5]
Whether a guilty plea is voluntarily given
is to be determined from the totality of the
circumstances surrounding it.[6] The trial
court is in the best position to determine
the totality of the circumstances
surrounding a guilty plea.[7] Once a
1
87 S.W.3d 8 (Ky. 2002).
2
Id. at 10.
3
144 S.W.3d 283, 287-89 (Ky.App. 2004).
4
Presumably this citation should have been to RCr 8.08 since that rule states
that a court “shall not accept the plea without first determining that the
plea is made voluntarily with understanding of the nature of the charge.”
RCr 8.10 pertains to the withdrawal of a guilty plea.
5
Bronk v. Commonwealth, Ky., 58 S.W.3d 482, 486 (2001) [Footnotes 5 – 19 have
been renumbered from those used in the quoted text to comport with the
footnotes used in this opinion. The footnoted citations have been modified
to comply with CR 76.12(4)(g), effective January 1, 2005].
6
Id.
7
Id.
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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.[8] However, if it was
voluntary, the trial court may, within its
discretion, either grant or deny the
motion.[9] 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."[10] The trial court's
determination on whether the plea was
voluntarily entered is reviewed under the
clearly erroneous standard.[11] A decision
which is supported by substantial evidence
is not clearly erroneous.[12] 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.[13] A trial court abuses its
discretion when it renders a decision which
is arbitrary, unreasonable, unfair, or
unsupported by legal principles.[14]
8
Rodriguez v. Commonwealth, Ky., 87 S.W.3d 8, 10 (2002).
9
Id.
10
Bronk, 58 S.W.3d at 489 (Cooper, J., concurring).
11
Id.
12
Baltimore v. Commonwealth, 119 S.W.3d 532, 539 (Ky.App. 2003).
13
Bronk, 58 S.W.3d at 487.
14
Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
Cf. Kennedy v. Commonwealth, 962 S.W.2d 880, 882 (Ky.App. 1997) (holding that
"fair play and honesty" as well as RCr 8.10, require a trial court to permit
a defendant to withdraw his guilty plea, despite the fact that it was made
knowingly, voluntarily, and intelligently as part of a plea agreement, where
the trial court subsequently declined to follow the Commonwealth's sentencing
recommendation).
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A criminal defendant may demonstrate
that his guilty plea was involuntary by
showing that it was the result of
ineffective assistance of counsel. In such
an instance, the trial court is to "consider
the totality of the circumstances
surrounding the guilty plea and juxtapose
the presumption of voluntariness inherent in
a proper plea colloquy with a Strickland v.
Washington[15] inquiry into the performance of
counsel."[16] To support a defendant's
assertion that he was unable to
intelligently weigh his legal alternatives
in deciding to plead guilty because of
ineffective assistance of counsel, he must
demonstrate the following:
(1) that counsel made errors so serious
that counsel's performance fell outside
the wide range of professionally
competent assistance; and (2) 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.[17]
Advising a client to plead guilty is not, in
and of itself, evidence of any degree of
ineffective assistance of counsel.[18] The
Kentucky Supreme Court has stated that
"[g]enerally, an evaluation of the
circumstances supporting or refuting claims
of coercion and ineffective assistance of
counsel requires an inquiry into what
transpired between attorney and client that
15
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
16
Bronk, 58 S.W.3d at 486 (footnotes omitted).
17
Sparks v. Commonwealth, 721 S.W.2d 726, 727-28 (Ky. App. 1986).
18
Beecham v. Commonwealth, 657 S.W.2d 234, 236-37 (Ky. 1983).
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led to the entry of the plea, i.e., an
evidentiary hearing."[19]
The decisions in both Rigdon and Rodriquez make clear
that while the trial court is in the best position to judge the
voluntariness of a guilty plea and retains discretion whether or
not to set aside a voluntary guilty plea, that discretion must
be grounded in knowledge of what transpired between client and
attorney, which knowledge generally must be ascertained by means
of an evidentiary hearing.
In this case, McCormick moved to withdraw his guilty
plea under RCr 8.10, and his counsel made generally known to the
trial court that four grounds involving ineffective assistance
of counsel would be presented at a hearing.
The record
indicates that the trial court summarily overruled the motion.
While the final judgment does contain a finding that the guilty
plea was voluntarily entered, the summary rejection of
McCormick’s RCr 8.10 motion cannot be reconciled with the
holdings in Rodriguez and Rigdon, and as such constituted an
abuse of discretion.
We also note that the plea colloquy at the
May 21, 2003 hearing stands in stark contrast to that which this
court approved in Centers v. Commonwealth.20
19
Rodriguez, 87 S.W.3d at 11.
20
799 S.W.2d 51, 54-55 (Ky.App. 1990).
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McCormick’s second argument, that the trial court
erred in failing to conduct a hearing with respect to his
competency, lacks merit.
As stated by the court in Mills v.
Commonwealth,21 the issue is “whether a reasonable judge,
situated as was the trial court judge whose failure to conduct
an evidentiary hearing is being reviewed, should have
experienced doubt with respect to competency to stand trial.”
Thus, Mills held that the failure to conduct a hearing amounted
to harmless error because the defendant failed to establish a
basis upon which the trial court could doubt his competence to
stand trial.22
In the instant case, the trial court ordered two
separate competency evaluations.
The reason for the first
evaluation does not appear in the record as no written or oral
motion was made for such evaluation, but the court entered two
orders for that evaluation on July 19, 2000 and July 25, 2000.
The first evaluation report is dated August 14, 2000.
The order
for the second evaluation, entered October 9, 2001, apparently
upon the motion of defense counsel, resulted in an evaluation
report dated November 8, 2001.
In each evaluation, McCormick
was found competent to stand trial with the ability to
participate in his own defense.
Additionally, the record
21
996 S.W.2d 473, 486 (Ky. 1999) (quoting Williams v. Bordenkircher, 696 F.2d
464, 467 (6th Cir. 1983)).
22
Id.; see also West v. Commonwealth, 161 S.W.3d 331, 335 (Ky.App. 2004).
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indicates that McCormick was a stranger to neither the legal
process nor the trial judge.
Under the facts of this case, the
trial court did not err by failing to conduct a competency
hearing under KRS 504.100(3).
The judgment of the Union Circuit Court is affirmed in
part and reversed in part, and this matter is remanded to that
court for further proceedings consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Rebecca Ballard Diloreto
Lisa Bridges Clare
Damon Preston
Astrida Liana Lemkins
Department of Public Advocacy
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Tami Allen Stetler
Assistant Attorney General
Frankfort, Kentucky
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