SPARKS (ANTHONY) VS. COMMONWEATLH OF KENTUCKY
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RENDERED: AUGUST 21, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001823-MR
ANTHONY SPARKS
v.
APPELLANT
APPEAL FROM GREEN CIRCUIT COURT
HONORABLE DOUGHLAS M. GEORGE, JUDGE
ACTION NO. 07-CR-00008
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; THOMPSON, JUDGE; BUCKINGHAM,1
SENIOR JUDGE.
BUCKINGHAM, SENIOR JUDGE: Anthony Sparks appeals from a judgment of
the Green Circuit Court wherein he was convicted of first-degree sexual abuse
1
Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
following his guilty plea. He also appeals from the court’s order denying his
motion to withdraw his plea. We affirm.
Sparks was charged with six counts of first-degree sodomy against a
child less than 12 years of age. Because first-degree sodomy is a Class B felony,
each count carried a maximum sentence of 20 years in prison. On the day before
his scheduled trial, Sparks entered into a plea agreement with the Commonwealth
whereby he would plead guilty to a single count of first-degree sexual abuse, a
Class D felony, and would receive a five-year sentence. On September 3, 2008,
Sparks and his attorney appeared before the trial court, and Sparks pleaded guilty
to the amended charge. Prior to final sentencing, Sparks hired a new attorney and
moved the court to allow him to withdraw his guilty plea. The court denied the
motion, and this appeal followed final sentencing.
Sparks’ first argument is that it was error for the court to find that he
had intelligently and voluntarily entered his guilty plea. This argument relates to
the court’s finding, following Sparks’ entry of his guilty plea, that the plea had
been entered in that manner. Sparks contends that when the court asked him if he
wanted to enter a plea of guilty, he replied with a question of “Guilty?” and never
answered affirmatively.
While it is true that the record does not clearly indicate that Sparks
responded affirmatively to the trial court’s first question inquiring into his desire to
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plead guilty, Sparks’ answers to additional questions clearly indicate that he
desired to plead in that manner. For example, when the court asked him whether
he understood that by pleading guilty he was waiving certain legal rights, Sparks
responded by answering “Yes.” Also, the court asked, “Are you stating at this time
that you are guilty, that you make no claim of innocence and wish to plead guilty
based on the Commonwealth’s offer on a plea of guilty?” Sparks again answered
“Yes.” Sparks also answered affirmatively when asked if he understood that by
pleading guilty, he might later be subject to enhanced penalties if he were to be
convicted of future offenses. Finally, prior to appearing before the court, Sparks
had signed forms entitled Motion to Enter Guilty Plea and Commonwealth’s Offer
on a Plea of Guilty.
“[T]he validity of a guilty plea is determined not by some magic
incantation recited at the time it was taken but from the totality of the
circumstances surrounding it.” Kotas v. Commonwealth, 565 S.W.2d 445, 447
(Ky. 1978). Considering the totality of the circumstances, we find no error in the
court’s finding that Sparks had pleaded guilty and that his plea was knowingly,
voluntarily, and intelligently entered.
Sparks’ second argument is that the trial court erred by failing to
properly consider the relevant factors in determining whether he should have been
permitted to withdraw his plea. Sparks asserts that the court should have
considered the following six factors stated in U.S. v. Durham, 178 F.3d 796, 798
(6th Cir. 1999): 1) the length of time between the entry of the guilty plea and the
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filing of the motion to withdraw; 2) the reason for not presenting the grounds
earlier; 3) whether the movant has asserted or maintained his innocence; 4) the
circumstances surrounding the guilty plea, the nature and background of the
movant, and whether the movant has admitted guilt; 5) whether there would be any
prejudice to the prosecution; and 6) whether the movant had prior experience with
the criminal justice system.
In determining whether or not to allow Sparks to withdraw his guilty
plea, the trial court was not required to follow the Durham case. See Bell v.
Commonwealth, 566 S.W.2d 785, 788 (Ky. App. 1978) (“The Kentucky appellate
courts need not follow the Federal Circuit Court of Appeals on rulings involving
Kentucky law”).
“[T]rial courts have the discretion to permit a defendant to withdraw
his or her guilty plea before final judgment and proceed to trial.” Bronk v.
Commonwealth, 58 S.W.3d 482, 486 (Ky. 2001). See also Kentucky Rules of
Criminal Procedure (RCr) 8.10. If a guilty plea was voluntarily entered, as it was
here, the trial court may, in its discretion, either grant or deny a defendant’s motion
to withdraw his or her guilty plea. Williams v. Commonwealth, 229 S.W.3d 49, 51
(Ky. 2007). “A trial court abuses its discretion when it renders a decision which is
arbitrary, unreasonable, unfair or unsupported by legal principles.” Id. Under the
circumstances in this case, we conclude that the trial court did not abuse its
discretion when it denied Sparks’ motion to withdraw his guilty plea.
The judgment and order of the Green Circuit Court are affirmed.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Theodore H. Lavit
Lebanon, Kentucky
Jack Conway
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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