HELM (TERRY) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: APRIL 30, 2010; 10:00 A.M
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-002384-MR
TERRY HELM
v.
APPELLANT
APPEAL FROM TRIMBLE CIRCUIT COURT
HONORABLE KAREN A. CONRAD, JUDGE
ACTION NO. 07-CR-00027
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: LAMBERT AND THOMPSON, JUDGES; KNOPF,1 SENIOR JUDGE.
KNOPF, SENIOR JUDGE: Terry Helm was convicted – pursuant to a guilty plea
– of multiple counts of unlawful transaction with a minor in the first degree and
sexual abuse in the first degree, as a result of which he was sentenced to ten years’
imprisonment. On appeal, he challenges the Trimble Circuit Court’s denial of his
1
Senior Judge William L. Knopf 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.
motion to withdraw his guilty plea. After our review, we vacate and remand for
reasons to be set forth below.
On June 15, 2007, Helm was indicted on seven counts of unlawful
transaction with a minor in the first degree2 and six counts of sexual abuse in the
first degree.3 After his motion to suppress evidence was denied, Helm reached a
plea agreement with the Commonwealth and filed a motion to enter a guilty plea as
to all charges on September 10, 2008 – only five days before his trial was set to
begin. In exchange for Helm’s plea, the Commonwealth agreed to recommend a
ten-year sentence of imprisonment. At the ensuing guilty plea hearing, the circuit
court conducted an extensive guilty plea colloquy with Helm in order to ensure that
his plea was entered voluntarily, knowingly, intelligently, and with an
understanding of both the charges pending against him and the consequences of
entering a guilty plea.
However, on September 24, 2008, Helm moved to withdraw his guilty
plea on the grounds that “he felt pressured into signing something that he did not
fully understand.” Helm appeared before the circuit court on November 20, 2008.
Although the circuit court judge acknowledged that Helm’s motion raised the
question of the voluntariness of his guilty plea, she refused to allow him to speak
on the record about this issue because of a concern that he might delve into some
of the more explicit factual details of the case. The judge questioned Helm’s
2
This offense is set forth in KRS 530.064.
3
This offense is set forth in KRS 510.110.
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attorney about his particular concerns, but counsel was unable to elaborate on the
matter. The court then concluded that Helm’s guilty plea had been entered
voluntarily, knowingly, and intelligently and denied his motion. Helm was
subsequently adjudged guilty of the subject offenses and sentenced to ten years’
imprisonment consistent with his guilty plea and the Commonwealth’s
recommendation.
Helm subsequently filed the current appeal, in which he challenges
the circuit court’s denial of his motion to withdraw his guilty plea. Kentucky
Rules of Criminal Procedure (RCr) 8.10 provides that “[a]t 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.” “Due process requires a trial court
to make an affirmative showing, on the record, that a guilty plea is voluntary and
intelligent before it may be accepted.” Edmonds v. Commonwealth, 189 S.W.3d
558, 565 (Ky. 2006). “If the plea was involuntary, the motion to withdraw it must
be granted; if it was voluntary, the trial court may, within its discretion, either grant
or deny the motion.” Williams v. Commonwealth, 229 S.W.3d 49, 51 (Ky. 2007);
Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky. App. 2004). Where the
voluntariness of a guilty plea is in question, trial courts are required 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
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v. Washington4 inquiry into the performance of counsel[.]” Bronk v.
Commonwealth, 58 S.W.3d 482, 486 (Ky. 2001) (citation omitted).
In response to Helm’s claim that the circuit court erroneously denied
his motion to withdraw his guilty plea, the Commonwealth argues that the record
establishes beyond question that his plea was voluntarily entered. For example,
when Helm filed his motion to enter a guilty plea, he indicated that his judgment
was not impaired by drugs, alcohol, or medication and acknowledged that he had:
. . . reviewed a copy of the indictment and told my
attorney all the facts known to me concerning my
charges. I believe he/she is fully informed about my
case. We have fully discussed, and I understand, the
charges and any possible defenses to them.
Helm further indicated that no one had forced him to plead guilty or had otherwise
threatened him. He also specifically acknowledged that his plea of guilty was
“freely, knowingly, intelligently, and voluntarily made[.]” Helm’s attorney also
signed a “Certificate of Counsel” which provided that all charges and possible
defenses had been discussed with Helm and that he appeared to have understood
these matters. Helm’s attorney further indicated that Helm’s guilty plea appeared
to have been made freely, knowingly, intelligently, and voluntarily and that Helm’s
constitutional rights had been fully explained to him.
Moreover, during his plea colloquy with the circuit court, Helm stated
that he had had plenty of time to talk with his attorney about his case and that there
was nothing he wanted done that had not been done. He also affirmed that he did
4
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
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not feel like he was forced into pleading guilty against his will. The plea colloquy
in general was also extensive, and the circuit court judge took great care to fully
explain what it meant to plead guilty and the constitutional protections being
waived by doing so.
In reply, Helm contends that even given the aforementioned facts, the
circuit court erred by failing to hold a hearing on his motion – specifically, by
failing to allow him to personally explain why he felt that he was pressured into
pleading guilty and why he felt he did not fully understand the consequences of
doing so. Helm argues that without determining such, the court could not possibly
have considered the totality of the circumstances surrounding the plea. See Bronk,
58 S.W.3d at 486. As noted above, the circuit court judge declined to allow Helm
to state anything on the record as to his motion because of a concern that he would
discuss explicit factual matters. This decision was made in error.
“Though an RCr 8.10 motion is generally within the sound discretion
of the trial court, a defendant is entitled to a hearing on such a motion whenever it
is alleged that the plea was entered involuntarily.” Edmonds, 189 S.W.3d at 566;
see also Williams, 229 S.W.3d at 51. Helm’s claim here clearly encompassed an
allegation that his guilty plea was not entered voluntarily because of undue
pressure and a lack of explanation on the part of his attorney. Therefore, the circuit
court should have allowed him to explain his reasons for wanting to withdraw his
guilty plea, including “what transpired between attorney and client that led to the
entry of the plea,” in an evidentiary hearing before granting or denying his motion.
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See Rodriguez v. Commonwealth, 87 S.W.3d 8, 10-11 (Ky. 2002). Although we
appreciate the court’s concerns about Helm testifying as to certain factual details of
the case, the court should not have prevented him from testifying altogether about
the reasons why he wished to withdraw his guilty plea. Therefore, the court’s
order denying Helm’s motion to withdraw his plea must be vacated and this matter
remanded for an evidentiary hearing on the matter. In reaching this decision, we
note that we make no comment as to the ultimate merit of Helm’s motion.
For the foregoing reasons, the order of the Trimble Circuit Court is
vacated, and this case is remanded with directions to hold an evidentiary hearing
on Helm’s motion to withdraw his guilty plea and to make a subsequent
determination as to whether Helm should be allowed to withdraw his guilty plea.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Linda Roberts Horsman
Assistant Public Advocate
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
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