LLOYD (JASON D.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: MAY 14, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001163-MR
JASON D. LLOYD
v.
APPELLANT
APPEAL FROM BOONE CIRCUIT COURT
HONORABLE ANTHONY W. FROHLICH, JUDGE
ACTION NO. 07-CR-00473
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON AND MOORE, JUDGES; BUCKINGHAM,1 SENIOR
JUDGE.
CAPERTON, JUDGE: Jason D. Lloyd appeals from the Boone Circuit Court’s
denial of his motion to withdraw his guilty plea to one count of Burglary in the
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.
First Degree (Complicity), two counts of Assault in the Second Degree and one
count of Retaliating Against a Participant in the Legal Process.
Lloyd argues that the trial court committed reversible error by denying
his motion to withdraw his guilty plea because Lloyd’s plea was involuntary and
he was not competent to enter a plea due to his heavy drug usage and underlying
mental health issues. The Commonwealth disagrees and asserts that Lloyd’s plea
was voluntary and that he was competent as evidenced by the record, which
includes a two-day hearing on Lloyd’s competency to stand trial on the day he pled
guilty. After a thorough review of the parties’ arguments, the record and
applicable law, we affirm.
Lloyd was indicted by the Boone County Grand Jury on one count of
Burglary in the First Degree (Complicity), two counts of Assault in the Second
Degree and one count of Intimidating a Participant in the Legal Process on August
10, 2007, to which Lloyd pled not guilty.2 On July 7, 2008, Lloyd’s jury trial
commenced. After the jury panel had been selected, Lloyd informed the trial court
that he wished to change his plea to guilty based upon the Commonwealth’s
sentencing recommendation.3 Lloyd pled guilty and the trial court ordered him to
appear for sentencing on August 6, 2008. Thereafter, Lloyd failed to appear for
sentencing and failed to contact the probation and parole office to prepare a
2
The one count of Intimidating a Participant in the Legal Process was later amended to one
count of Retaliating Against a Participant in the Legal Process.
3
The Commonwealth offered the minimum sentences for each charge and further recommended
that the sentences be run concurrently for a total of ten years.
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Presentence Investigation Report. The trial court issued a warrant for Lloyd’s
arrest.4
Subsequently, on October 22, 2008, Lloyd moved to withdraw his
guilty plea, asserting that he was not competent to enter a guilty plea, rendering the
plea involuntary. Lloyd’s argument was based on his heavy drug usage and
underlying mental health issues which he alleged were exacerbated by his heavy
drug usage.5 Lloyd attached an evaluation from Dr. David Roebker to his motion
to support his argument that he was not competent to enter the guilty plea. The
trial court then ordered an evaluation from the Kentucky Correctional Psychiatric
Center (“KCPC”) and set the matter for an evidentiary hearing.
On January 8, 2009, the trial court conducted an evidentiary hearing
on Lloyd’s competency to enter a guilty plea. Dr. Timothy Allen, a psychiatrist
with KCPC, testified on behalf of the Commonwealth. Dr. David Roebker testified
on behalf of Lloyd. On March 24, 2009, a second evidentiary hearing was held in
which Lloyd testified. On March 31, 2009, the trial court entered its order denying
Lloyd’s motion to withdraw his guilty plea.
The trial court’s order of March 31, 2009, was meticulous in its
review of the evidence concerning Lloyd’s competency, which we have set out in
part below:
4
The Boone County Grand Jury added an additional count of Bail Jumping, First-Degree, but
that matter is not before us on appeal.
5
The “heavy drug usage” referred to by Lloyd consisted of illegal drugs.
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This matter was before the Court on July 7, 2009,
for a jury trial. The Commonwealth of Kentucky was
represented by Assistant Commonwealth Attorney Kurt
Kruthoffer and Defendant was present and represented by
two (2) private attorneys, Hon. Edward Drennen and
Hon. Thomas Raisbeck. The trial commenced and
during the course of the trial the parties negotiated a plea
agreement. The trial was being presided over by Senior
Status Judge Kevin Horne, who also presided over the
guilty plea hearing.6 Counsel approached the Judge and
advised the Judge that the Defendant wanted to enter a
guilty plea. Judge Horne stopped the trial, granted the
jury a recess and granted Defendant’s counsel additional
time to meet privately with the Defendant. When
Defendant and his counsel returned to the Courtroom,
Judge Horne called the Defendant to the Judge’s bench
and examined the Defendant from that vantage point, a
short distance of approximately two (2) feet or so. He
placed the Defendant under oath and proceeded to
examine the Defendant regarding his intention to
withdraw his plea of not guilty and to enter a plea of
guilty pursuant to the plea agreement. He went over the
plea agreement with the Defendant. The Defendant told
Judge Horne that he was not under the influence of
alcohol or drugs. The Defendant assured Judge Horne
that he was satisfied with the service of his attorneys . . .
Judge Horne told the Defendant that he had a jury here
and could proceed with the trial. The Defendant
admitted to the crimes. Judge Horne asked the
Defendant if he had any questions at all he wanted to ask.
The Defendant said no. While Judge Horne was going
over the crimes with the Defendant, the Defendant at one
time corrected the judge. The Judge took a break so the
Defendant and his two attorneys could go over all the
paperwork. When the Defendant was starting to go over
the paperwork with his attorneys the Defendant can be
heard saying that he understood it and had done the
paperwork before . . . . Judge Horne went over the
paperwork with the Defendant to assure that he
understood it and it was voluntary and intelligently made.
The Defendant met with his lawyers again to sign the
6
Judge Horne presided over Appellant’s jury trial and guilty plea, while Judge Frohlich presided
over Appellant’s motion to withdraw guilty plea.
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plea agreement which had not yet been signed. Judge
Horne brought the Defendant before him a third time.
Judge Horne again questioned the Defendant. The
Defendant declared the guilty plea was his free and
voluntary act . . . .
At the competency hearing on January 8, 2009 . . .
Dr. Allen testified that if the Defendant was using
cocaine at the time of the guilty plea, combined with his
anxiety disorder, would make the Defendant’s
nervousness worse. He also testified that using cocaine
can exacerbate mental decision making. Dr. Roebker
testified the Defendant has a bipolar disorder, drug
dependency disorder and a personality disorder. He
testified the Defendant’s personality disorder involved
fear of abandonment, self-damaging behavior and
tumultuous relationships. The affect of cocaine could
amplify impulsive behaviors and amplify manic
problems and could cause him to become paranoid and
aggressive.
The [hearing] was continued . . . [until] March 24,
2009. The only witness to testify was the Defendant . . .
Lloyd testified that on July 7, 2009, the date of his trial
and the date he entered the guilty plea, that he was under
the influence of illegal drugs . . . . He testified that for
twenty (20) days prior to that date, except for the
previous Friday, he had used drugs everyday . . . . His
choice of drugs was crack cocaine, at about a quarter of
an ounce per day, snorted or smoked, at about a cost of
$200 per day. He also would partake of alcohol or
“regular” cocaine. He testified that on the day of trial he
smoked crack cocaine in a hotel room. He went to his
father’s place of business and rode to the trial with his
father. He testified that on the way to the trial he smoked
[crack] cocaine again. The Defendant testified that while
the trial was going on he felt things were not going well.
Defendant testified that he became paranoid and because
of the paranoia and the influence of drugs . . . [his plea]
was not voluntary, knowingly and intelligently made.
The Defendant is indeed a troubled man . . . both
Dr. David Roebker and Dr. Timothy Allen testified the
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Defendant was competent when they examined him.
Both testified that they could make a determination as to
whether the Defendant was competent to enter a guilty
plea on July 7, 2009, only if they had examined him on
that date.
The [trial c]ourt has the benefit of watching the
Defendant’s guilty plea on video tape. The guilty plea
was taken by Judge Kevin Horne [who] has a tremendous
amount of experience in handling criminal cases . . . . On
the day in question, Judge Kevin Horne’s examination of
the Defendant was probing and complete. The Defendant
was only two (2) feet from the Judge during their
interaction, and Judge Horne had the best view of anyone
of the Defendant’s demeanor and performance. The
interaction occurred on three different occasions. The
Court also takes notice of the fact the Defendant had two
(2) private attorneys with excellent reputations....This
Court can only draw the conclusion that as officers of
this Court had they any inkling that the Defendant was
under the influence of illegal drugs that they would not
have advocated their client to enter a guilty plea. The
Court does not believe that the Defendant was so under
the influence of illegal drugs on July 7, 2008, that he
would have the ability to fool Judge Horne and three (3)
attorneys involved in this case as to his competency to
enter a guilty plea.
In sum, there is no factual or legal basis to set
aside the guilty plea . . . .
Trial court’s order of March 31, 2009 (emphasis added). In addition to the facts
recited by the trial court’s order, each party refers this Court to the record in
support of their respective arguments. First, Lloyd refers this Court to Dr.
Roebker’s report which was attached to his motion to withdraw the guilty plea.
Therein, Dr. Roebker surmised that Lloyd was incapable of entering a plea due to
his impairment from smoking crack cocaine shortly before the trial. Lloyd also
refers this Court to his testimony at the second day of the evidentiary hearing,
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wherein he testified that he believed his attorneys were working for the
Commonwealth; that he did not share his fears with the trial court because he
thought the judge would think he was an idiot; and that he signed the plea offer
because he felt pushed and forced to accept it.
Second, the Commonwealth refers this Court to the signed motion to
enter guilty plea contained within the record, wherein, the motion states, “My
judgment is not now impaired by drugs, alcohol, or medication.” The trial court
likewise asked Lloyd, “Today you are not under the influence of any kind of
substance or mental condition that might affect your judgment?” To which Lloyd
responded, “No, sir.”7
The Commonwealth next refers this Court to testimony by Dr. Allen,
wherein Dr. Allen testified that he did not find evidence of a mood disorder, such
as bipolar disorder, from his evaluation of Lloyd. Further, Dr. Allen testified that
Lloyd’s frequent cocaine usage likely built up some tolerance which would reduce
the impairment the drugs would otherwise have caused; that Lloyd was able to
function in court and discuss the issues without appearing intoxicated; that the
outward appearance of an individual and the level of intoxication go hand in hand,
which would suggest a low degree of impairment, if any at all.8
7
See Video Record 7/7/08 at 11:03.
The Commonwealth argues that the crack cocaine’s effects would be waning even if Lloyd
smoked crack cocaine immediately prior to entering the courtroom, since Dr. Allen explained
that crack cocaine has a fast onset of about 15 to 20 minutes with the intoxication lasting an hour
to two and virtually out of the system after four to six hours. Given that Lloyd was in court at
8:55 AM the morning of trial and did not plead guilty until 11:01 AM, the Commonwealth
argues that the crack cocaine effects would be waning when Lloyd entered his guilty plea.
8
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With this evidence from the record in mind, we now turn to the
parties’ arguments. Lloyd presents one argument on appeal, namely, that the trial
court committed reversible error by denying his motion to withdraw his guilty plea
because Lloyd’s plea was involuntary, and that Lloyd was not competent to enter a
plea due to his heavy drug usage and underlying mental health issues. The
Commonwealth disagrees and argues that the trial court properly denied Lloyd’s
motion to withdraw his guilty plea, because he was competent to plead guilty; that
his plea was voluntary, knowingly and intelligently made; and that the trial court
did not abuse its discretion in so denying the motion. We now turn to our
applicable jurisprudence.
Kentucky Rules of Criminal Procedure (RCr) 8.10 provides that, “At
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.” In Williams v.
Commonwealth, 229 S.W.3d 49 (Ky. 2007), the Kentucky Supreme Court
addressed RCr 8.10:
To be valid, a plea must be knowing, intelligent and
voluntary, Haight v. Commonwealth, 760 S.W.2d 84, 88
(Ky.1988), and a trial court shall not accept a plea
without first determining that it is made voluntarily with
understanding of the nature of the charge. RCr 8.08.
RCr 8.10 provides that a guilty plea may be withdrawn
with permission of the court before judgment. A motion
to withdraw a plea of guilty under RCr 8.10 is generally
addressed to the sound discretion of the court; however,
where it is alleged that the plea was entered involuntarily
the defendant is entitled to a hearing on the motion.
Edmonds v. Commonwealth, 189 S.W.3d 558, 566
(Ky.2006). If the plea was involuntary, the motion to
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withdraw it must be granted; if it was voluntary, the trial
court may, within its discretion, either grant or deny the
motion. Rigdon v. Commonwealth, 144 S.W.3d 283, 288
(Ky.App.2004). A trial court abuses its discretion when
it renders a decision which is arbitrary, unreasonable,
unfair or unsupported by legal principles. Edmonds, 189
S.W.3d at 570. The inquiry into the circumstances of the
plea as it concerns voluntariness is inherently factsensitive. Id. at 566. Accordingly, the trial court's
determination as to whether the plea was voluntarily
entered is reviewed under the clearly erroneous standard.
Id.
Williams, at 50-51. Thus, we must review the trial court’s determination that
Lloyd’s plea was entered voluntarily under the clearly erroneous standard; if the
plea was entered voluntarily then we must determine whether the trial court abused
its discretion in denying the motion to withdraw the guilty plea.
Regarding Lloyd’s alleged incompetency to plead guilty, we note that
a trial court’s determination of competency to plead guilty is considered a finding
of fact and is reviewed under the clearly erroneous standard. Thompson v.
Commonwealth, 147 S.W.3d 22, 33 (Ky. 2004) (internal citations omitted). A
decision supported by substantial evidence is not clearly erroneous. Rigdon v.
Commonwealth, 144 S.W.3d 283, 288 (Ky.App. 2004). Moreover:
To be competent to plead guilty, a defendant must have
sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding - and
whether he has a rational as well as factual understanding
of the proceedings against him. Competency
determinations are made based on a preponderance of the
evidence standard.
Thompson at 32-33 (internal citations omitted).
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As an appellate court, we must bear in mind that “the trial court is in
the best position to determine if there was . . . reluctance, misunderstanding,
involuntariness, or incompetence to plead guilty at the time of the guilty plea and
in a superior position to judge [witnesses'] credibility and the weight to be given
their testimony at an evidentiary hearing.” Bronk v. Commonwealth, 58 S.W.3d
482, 487 (Ky. 2001) (internal citations omitted).
We agree with the Commonwealth that the trial court’s determinations
that Lloyd’s guilty plea was entered voluntarily and that Lloyd was competent to
plead guilty are not clearly erroneous in light of the record. The trial court had
ample opportunity to observe Lloyd’s behavior and understanding of his plea
agreement when Lloyd was called to the bench three separate times. The trial
court’s thorough questioning of Lloyd prior to accepting his plea further evidences
his competency, and that the plea was entered voluntarily.
In addition, Lloyd repeatedly denied during the proceeding that he
was under the influence of drugs or unable to plead guilty due to drug usage. The
record further supports the trial court’s determinations of Lloyd’s competence and
that his plea was entered voluntarily by the testimony of Dr. Allen, who explained
the particular circumstances surrounding Lloyd’s use of illegal drugs and that
Lloyd’s current impairment from the drugs would be low because of his prior
habitual drug use. As noted by the trial court, it would seem unlikely that if Lloyd
was under the influence of drugs on July 7, 2008, he was able to escape detection
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by the trial court and three attorneys involved in his proceeding. The trial court’s
findings are supported by substantial evidence and, thus, are not clearly erroneous.
Given that Lloyd’s plea was entered knowingly, intelligently and
voluntarily we must now determine whether the trial court abused its discretion in
denying the motion to withdraw the guilty plea. As noted in Williams, infra, “[a]
motion to withdraw a plea of guilty under RCr 8.10 is generally addressed to the
sound discretion of the court.” Id. at 51. In the case sub judice, the trial court’s
denial of Lloyd’s motion was not arbitrary, unreasonable, unfair or unsupported by
legal principles. See id. Thus, the trial court did not abuse its discretion in denying
Lloyd’s voluntary guilty plea.
For the aforementioned reasons, we affirm the Boone Circuit Court’s
denial of Lloyd’s motion to withdraw his guilty plea.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Samuel N. Potter
Department of Public Advocacy
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Michael J. Marsch
Assistant Attorney General
Frankfort, Kentucky
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