BLACKWELL (CHARLES) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: NOVEMBER 19, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000082-MR
CHARLES R. BLACKWELL
v.
APPELLANT
APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE RODNEY BURRESS, JUDGE
ACTION NO. 08-CR-00319
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: TAYLOR, CHIEF JUDGE; LAMBERT, JUDGE; HENRY,1 SENIOR
JUDGE.
HENRY, SENIOR JUDGE: Charles R. Blackwell appeals the decision of the
Bullitt Circuit Court that denied his motions to withdraw a plea of guilty to
criminal charges. He argues the trial court denied his due process rights when it
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Senior Judge Michael L. Henry 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.
failed to establish a factual basis for his guilty plea, and abused its discretion by
refusing to grant his request to withdraw that plea. After our review, we affirm.
Blackwell entered a plea of guilty to one count of fleeing or evading
police, first degree; one count of third-degree burglary; one count of wanton
endangerment in the first degree and one count of being a persistent felony
offender in the second degree. The charges stemmed from an incident on August
20, 2008, where Blackwell went to the home of a former girlfriend, assaulted her
and then fled the scene as police arrived in response to a 911 call from the
residence. He crashed into two police cruisers while attempting to flee the scene.
Blackwell submitted to a court ordered mental evaluation and, after a
hearing, was found competent to stand trial. Blackwell’s attorney informed the
trial court that during previous discussions with the Commonwealth and his client,
he thought a plea agreement had been reached. But when he met with Blackwell on
the morning the plea was to be entered “[i]t was as though we had not spoken
before.”
Blackwell indicated he believed the plea agreement permitted
concurrent sentences for a total of five years instead of consecutive sentences for a
total of fifteen years, his actual sentence as reflected by the record. Later on that
afternoon, Blackwell returned to the trial court and entered a guilty plea to the
amended charges pursuant to North Carolina v. Alford, 400 U.S.25, 91 S.Ct. 160,
27 L.Ed.2d 162 (1970). The plea agreement, which counsel acknowledged “took
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all day” provided for consecutive sentences for a total of fifteen years. Sentencing
was set for November 9, 2009.
On November 2, 2009, counsel orally indicated to the trial court that
Blackwell wished to withdraw his plea. At the hearing on the request to withdraw
his plea, counsel indicated that Blackwell believed he had been coerced.
Blackwell himself indicated that he suffers from dyslexia and has been diagnosed
as bipolar, and that he sometimes understands things as he would like them to be
rather than as he is told. Blackwell is unable to read but it was clear from
questioning by counsel and the Commonwealth that his attorney had read the plea
agreement to him. He returned however to his position that he thought the plea
involved five-year sentences that would run concurrent for a total of five years.
Counsel indicated to the trial court that during the plea negotiations,
Blackwell had requested a reduction in the total sentence to twelve years but that
was refused by the Commonwealth although Blackwell denied such a conversation
ever took place. The trial court then terminated the hearing and indicated it would
review the video tape of the plea prior to issuing a ruling.
On December 7, a newly appointed attorney appeared for Blackwell.
Although the Commonwealth and the trial court were prepared for sentencing,
Blackwell had filed a new motion to set aside his plea based on “11.42 reasons.”
The trial court continued the hearing for one week allowing Blackwell’s new
attorney time to review the reports and record.
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On December 14, 2009, counsel appeared with Blackwell and
indicated that he had reviewed the record and although he could not find anything
specific, asked the court to allow Blackwell to withdraw the plea based on
Blackwell’s repeated statements that he did not understand the plea agreement.
Blackwell again indicated he believed the plea agreement would result in
concurrent sentences for a total of five years and not consecutive sentences
resulting in a total sentence of fifteen years. The trial court then overruled
Blackwell’s motion and sentenced him to serve consecutive sentences for a total of
fifteen years. This appeal followed.
Blackwell first argues he was denied his due process rights when the
trial court failed to establish a factual basis for the plea. This issue was never
presented to the trial court and would not generally be reviewed. Blackwell then
asks us to determine whether, pursuant to Kentucky Rules of Criminal Procedure
(RCr) 10.26 there has been a palpable error that affects his substantial rights. We
will review the matter under that standard.
The decision of whether to allow a withdrawal of a guilty plea is
within the sound discretion of the trial court. RCr 8.10. That discretion is however
limited to situations where the plea was made voluntarily. Rodriguez v.
Commonwealth, 87 S.W.3d 8, 10 (Ky. 2002). Here, Blackwell’s motion alleges he
was coerced which, if true, would make the plea involuntary. We therefore review
this matter to determine if “manifest injustice has resulted from” any error. RCr
10.26.
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Central to any typical plea of guilty is an admission by the defendant
that he committed the illegal acts. Brady v. United States, 397 U.S. 742, 90 S.Ct.
1463, 25 L.Ed.2d 747 (1970). Blackwell however availed himself of an exception
to that rule and submitted a guilty plea pursuant to Alford. In place of a
defendant’s acknowledgement of guilt, Alford cautions “that pleas coupled with
claims of innocence should not be accepted unless there is a factual basis for the
plea.” Alford, 400 U.S. at 38 n.10, 81 S.Ct. at 168 n.10. We dismiss the
Commonwealth’s attempt to argue that because no Kentucky law specifically
requires the trial court to establish a factual basis for a plea, none is required. The
United States Supreme Court answered that question in the Alford opinion.
Blackwell now argues the trial court never established a factual basis for the guilty
plea. We disagree.
During the plea colloquy, the trial court read the indictment to
Blackwell. It contained the facts and Blackwell’s involvement in the incident of
August 20, 2008. The trial court asked Blackwell if he was the person named in
that indictment. The trial court then asked if Blackwell understood the facts with
which he was charged in the indictment. Blackwell responded “Yes” to both
questions. Counsel then indicated to the court that because Blackwell was unable
to read, the attorney had read the Commonwealth’s written offer to Blackwell from
the guilty plea form, and Blackwell had then signed that form. The form contains a
short recitation of the factual basis for the plea. It reads:
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On or about August 20, 2008, in Bullitt County,
Kentucky, [Appellant] unlawfully entered a building with
intent to commit a crime. [He] wantonly operated his
motor vehicle in a manner which caused a grave risk of
death or serious physical injury to officers responding to
the location and intentionally caused or attempted to
cause injury to Officer Travis Schoenlaub and Officer
Dennis Creason.
Additionally before he entered the plea of guilty, Blackwell
acknowledged there was sufficient evidence against him to result in a conviction.
“[A] trial court can satisfy itself that there is a factual basis for a guilty plea in any
number of ways, many of which do not involve a defendant personally reciting his
involvement in the underlying facts which gave rise to the criminal charges.”
Chapman v. Commonwealth, 265 S.W.3d 156, 183 (Ky. 2007) (footnote omitted).
A sufficient factual basis was presented to the trial court to authorize the court to
accept Blackwell’s guilty plea. We find nothing in the record to indicate that
Blackwell was coerced into making an entry of a plea of guilty. There was no
error.
Finally, Blackwell brings forth an argument that the trial court abused
its discretion. “The test for abuse of discretion is whether the trial judge’s decision
was arbitrary, unreasonable, unfair, or not supported by sound legal principles.”
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). His brief details
Blackwell’s repeated statements of his desire that the plea agreement should result
in a sentence of five years and emphasizes Blackwell’s mental conditions. Yet it
fails to recognize two key elements of the plea.
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First, although Blackwell now contends he may not have understood
the difference between the words “consecutive” and “concurrent,” the plea form
which Blackwell acknowledged was read to him by counsel before he signed it
states the sentences are to “be served consecutively for a total of fifteen (15)
years.” Second is his attempt to have counsel negotiate a reduced sentence of
twelve years.
Clearly, Blackwell was aware of the imposition of a fifteen-year
sentence regardless of his desire that the sentences result in only five years of
incarceration. We find nothing arbitrary, unreasonable, unfair or anything not
supported by sound legal principles in the decision to deny Blackwell’s requests.
The trial court did not abuse its discretion. There was no error.
We therefore affirm the Bullitt Circuit Court’s denial of Blackwell’s
motions to withdraw his plea of guilty.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gene Lewter
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Michael J. Marsch
Assistant Attorney General
Frankfort, Kentucky
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