ADKINS (JAMES DAVID) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: NOVEMBER 12, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000575-MR
JAMES DAVID ADKINS
v.
APPELLANT
APPEAL FROM OHIO CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO. 06-CR-00051
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE: DIXON AND VANMETER, JUDGES; AND LAMBERT,1 SENIOR
JUDGE.
DIXON, JUDGE: James David Adkins appeals the Ohio Circuit Court’s denial of
his motion to withdraw his guilty plea pursuant to Kentucky Rules of Criminal
Procedure (RCr) 8.10. Finding no error, we affirm.
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Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute (KRS)
21.580.
In February 2006, an Ohio County grand jury indicted Adkins on two counts
of first-degree rape, two counts of first-degree unlawful transaction with a minor,
twenty counts of promoting a sexual performance by a minor, and twenty counts of
use of a minor in a sexual performance. Following several continuances, Adkins’s
case was scheduled for a jury trial in November 2008. On the morning of trial,
Adkins accepted the Commonwealth’s offer of a fifteen-year sentence in exchange
for pleading guilty to first-degree unlawful transaction with a minor (two counts)
and second-degree unlawful transaction with a minor (five-counts), with the
remainder of the indictment to be dismissed. The court conducted a guilty plea
hearing, wherein Adkins expressed both understanding of the plea agreement and
satisfaction with his attorney’s representation. Adkins participated in a standard
plea colloquy, and the court determined that the plea was entered voluntarily,
knowingly, and intelligently.
Prior to his final sentencing, Adkins filed several pro se motions. In two of
the motions, Adkins sought to withdraw his guilty plea due to ineffective
assistance of counsel, prosecutorial/police misconduct, and intimidation. In
January 2009, the court allowed Adkins’s attorney, Dan Jackson, to withdraw from
the case due to the nature of Adkins’s pro se allegations.
On February 26, 2009, the court held a hearing on the motion to withdraw
guilty plea, and Adkins acted as co-counsel with a court-appointed public defender.
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Thereafter, the court rendered an order denying Adkins’s motion, and this appeal
followed.
A defendant who moves to withdraw his guilty plea as involuntary is entitled
to a hearing, and the trial court must consider the totality of the circumstances in
ruling on the motion. Edmonds v. Commonwealth, 189 S.W.3d 558, 566 (Ky.
2006). If the trial court concludes the plea was voluntary, the court may either
grant or deny the motion as a matter of discretion. Id. The trial court’s decision as
to voluntariness is necessarily fact-sensitive; consequently, on appellate review, we
will not disturb the court’s decision unless it was clearly erroneous. Id.
Adkins asserts that his plea was involuntary because, at the time he pled
guilty, he was unaware that he would be required to register as a sex offender upon
his release from prison. A review of the hearing reveals that, at the conclusion of
the plea colloquy, the court accepted Adkins’s plea and found him guilty of the
offenses. Moments later, the prosecutor asked the judge to address sex offender
registration, and Attorney Jackson stated to the court that he had advised Adkins he
was not “positive” about whether registration would be required. The court then
fully explained the registration requirements to Adkins, and Adkins stated that he
understood.
While it is true that a defendant can allege his plea was involuntary if he
“lacked full awareness of the direct consequences of the plea[,]” Id., this Court has
held that “it is plain that the [sex offender] registration requirement constitutes a
purely collateral consequence which implicates neither the constitutionality of [the]
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plea nor [] counsel's effectiveness.” Carpenter v. Commonwealth, 231 S.W.3d
134, 137 (Ky. App. 2007). Accordingly, because sex offender registration was a
collateral aspect of Adkins’s convictions, Adkins’s alleged lack of knowledge of
his duty to register did not undermine the voluntariness of his guilty plea. Id.
Furthermore, Adkins’s argument implies that his plea was involuntary due to
ineffective assistance of counsel; however, he has not stated that he would have
insisted on going to trial if he had known of the registration requirement prior to
his plea. See Sparks v. Commonwealth, 721 S.W.2d 726, 727-28 (Ky. App. 1986)
(“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”). As the
trial court pointed out, Adkins received a generous plea agreement from the
Commonwealth. If Adkins had gone to trial, he faced a potential sentence of
seventy years and parole eligibility after serving 85%. Instead, pursuant to his plea
agreement, he received a fifteen-year sentence with parole eligibility after serving
20% of his sentence.
After careful review, we conclude that substantial evidence supports the
finding that Adkins’s guilty plea was voluntary; consequently, the trial court’s
decision was not clearly erroneous.
Adkins alternatively contends that the trial court abused its discretion by
denying his motion without fully investigating the circumstances of his guilty plea.
We disagree, as the record reflects that the court gave Adkins and his co-counsel
ample time to argue the motion, and Adkins’s presentation focused on allegations
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of illegal wiretapping and errors that occurred during a suppression hearing. Based
upon our review, the trial court’s denial of Adkins’s motion was neither arbitrary
nor unfair; consequently, the court did not abuse its discretion.
For the reasons stated herein, we affirm the order of the Ohio Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Linda Roberts Horsman
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Jason B. Moore
Assistant Attorney General
Frankfort, Kentucky
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