DAVID BRONK V. COMMONWEALTH OF KENTUCKY
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RENDERED: OCTOBER~2001
1999-SC-0687.
DAVID BRONK
V.
APPEAL FROM JEFFERSON CIRCUIT CtiRT
HON. EDWIN A. SCHROERING, JR., JUDGE
INDICTMENT NO. 96-CR-0617
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
I. INTRODUCTION
Bronk appeals from a judgment of the Jefferson Circuit Court sentencing him to
a total of twenty-five (25) years of imprisonment following his guilty plea to first-degree
manslaughter, second-degree arson, and two (2) counts of third-degree burglary. The
sole issue Bronk raises on appeal concerns the trial court’s denial of his motion to
withdraw his guilty plea. Bronk alleges that his plea was involuntary because his
counsel rendered ineffective assistance of counsel and failed to advise him concerning
issues pertinent to his defense. After an evidentiary hearing, the trial court found that
Bronk “was properly advised of his constitutional rights and made a voluntary and
intelligent waiver of those rights” and denied the motion. After a review of the record,’
we affirm the judgment of the Jefferson Circuit Court.
II. BACKGROUND
On August 3, 1994, Sergeant Strawn Nutter, a Louisville Firefighter, died while
fighting a fire. After an investigation revealed that the fire had been started
intentionally, the Jefferson County Grand Jury indicted three adult co-defendants, David
Butler, Katrina Burns, and Bobby Hayes, for Sergeant Nutter’s murder and related
charges. Seven months later, Bronk, then a juvenile, was indicted as a youthful
offender on charges of murder, first degree arson, first degree burglary, and third
degree burglary.
Bronk’s father retained counsel to represent his son, and Bronk’s attorney
arranged for his client to take a polygraph examination at the Louisville Police
Department. Counsel did not accompany Bronk to the polygraph examination, and
after the examiner informed Bronk that he had failed the examination, Bronk waived his
right to remain silent and confessed that he had acted as a “lookout” for his codefendant Butler while Butler started the fire.
Bronk’s counsel then entered into plea negotiations with the Commonwealth’s
Attorney, and the Commonwealth agreed to amend the most serious charges to
‘The Commonwealth’s brief asserts that “the record on appeal appears to omit
the first seven hours and fifteen minutes of the circuit court’s hearing on appellant’s
motion to withdraw his guilty plea,” including the testimony of both Bronk’s original
counsel and the Circuit Judge who accepted Bronk’s pleas of guilty. We observe,
however, that the record includes a tape labeled 30-12-98-VCR-034 5/8/98 which
contains this “missing” testimony. We thus decline the Commonwealth’s invitation to
assume, pursuant to Commonwealth v. Thomoson, Ky., 697 S.W.2d 143 (1985) that
the silent record supports the action of the trial court, and we evaluate Bronk’s claims
on the basis of the entire record before us.
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second-degree manslaughter, second-degree arson, and third-degree burglary and to
recommend a total sentence of twenty-five (25) years.
During his plea colloquy, Bronk
explained that, on the day of the fatal fire, he twice had acted as a “lookout” for codefendant Butler while Butler burglarized a storage shed located near his home. Bronk
stated that Butler first removed a large cardboard box from the building, and later in the
day returned with a cannister of kerosene and started the fire which caused Sergeant
Nutter’s death. The trial court accepted Bronk’s guilty plea, but delayed final sentencing
until after the co-defendants’ trial because Bronk was scheduled to testify at the trial as
a condition of his plea agreement.
Before the co-defendants’ trial, Bronk asked the court to appoint a public
defender to represent him, and, after Bronk’s retained counsel withdrew from the case,
the trial court did so. After consulting with his appointed counsel, Bronk filed a motion
to withdraw his plea of guilty which alleged that he entered his plea involuntarily as a
result of ineffective assistance of counsel. The original trial judge who had accepted
the guilty plea recused himself from the case, and the matter was transferred to another
division for further proceedings. After a three-day evidentiary hearing, the trial court
acknowledged the questions concerning Bronk’s retained counsel’s performance, but
concluded that Bronk voluntarily entered his guilty plea and denied the motion:
The question is not whether or not the defendant could
escape punishment if he had a knowledgeable lawyer.
Instead, the question is whether or not his decision to plead
guilty was made within constitutional perimeters [sic].
Whether Bronk could have received a better defense or
better legal advice concerning the issues in his case, is not
relevant to whether or not he made a voluntary and
intelligent waiver of his constitutional rights in his guilty plea.
After considering the totality of the evidence presented at
the hearing, this Court believes that the Defendant, Bronk,
despite the infirmatives [sic] of his attorney was properly
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advised of his constitutional rights and made a voluntary and
intelligent waiver of these rights under the perimeters [sic] of
Boykin. supra.
Accordingly, the motion to withdraw the plea of guilty is
DENIED.
The trial judge who ruled upon Bronk’s motion to withdraw his gulity plea later entered
final judgment sentencing Bronk in accordance with the plea agreement. Bronk
appeals from this judgment.
ill. ANALYSIS
Bronk argues that the trial court erred in denying his motion to withdraw his guilty
plea because his counsel’s ineffective assistance rendered his plea involuntary. Bronk
specifically alleges that his counsel: (1) inadequately represented him at the preliminary
transfer hearing in Jefferson District Court; (2) failed to interview witnesses or otherwise
investigate the case; (3) failed to review with Bronk the discovery materials provided by
the Commonwealth; (4) simply joined in the motions filed by counsel for the codefendants and, other than one oral motion for bond reconsideration, made no
separate motions on Bronk’s behalf; (5) arranged for Bronk to take a polygraph
examination without properly explaining to his client that he was not required to do so;
(6) failed to attend the polygraph examination at which Bronk waived his Miranda rights
and confessed to his involvement in the crimes; and (7) counseled Bronk to accept a
plea agreement without discussing the possibility of suppressing his confession.
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A guilty plea is valid only when it is entered intelligently and voluntarily.2 Thus,
RCr 8.08 requires a trial court, at the time of the guilty plea, to determine “that the plea
is made voluntarily with understanding of the nature of the charge,‘13 to fulfill “the dual
purpose of having a judicial determination that the guilty plea is made voluntarily and
understandably and providing an appropriate court record demonstrating those
important facts.‘14
Under RCr 8.10, trial courts have the discretion to permit a defendant
to withdraw his or her guilty plea before final judgment and proceed to trial.5 In cases
where the defendant disputes his or her voluntariness, a proper exercise of this
discretion requires trial courts to consider the totality of the circumstances surrounding
*a Centers v. Commonwealth, Ky.App., 799 S.W.2d 51, 54 (1990):
In determining the validity of guilty pleas in criminal cases,
the plea must represent a voluntary and intelligent choice
among the alternative course of action open to the
defendant. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct.
160, 27 L.Ed.2d 162 (1970); Sparks v. Commonwealth,
Ky.App., 721 S.W.2d 726 (1986). The United States
Supreme Court has held that both federal and state courts
must satisfy themselves that guilty pleas are voluntarily and
intelligently made by competent defendants. Bradv v. United
States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).
3RCr 8.08.
4Lucas v. Commonwealth, Ky., 465 S.W.2d 267, 268 (1971).
‘RCr 8.10 (“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.” Id.
(emphasis added)). See also Turner v. Commonwealth, Ky.App., 10 S.W.3d 136, 138
(2000); Couch v. Commonwealth, Ky., 528 S.W.2d 712, 713-4 (1975).
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the guilty plea” and juxtapose the presumption of voluntariness inherent in a proper
plea colloquy with a Strickland v. Washinaton’ inquiry into the performance of counsel:
A showing that counsel’s assistance was ineffective in
enabling a defendant to intelligently weigh his legal
alternatives in deciding to plead guilty has two components:
(1) that counsel made errors so serious that counsel’s
performance fell outside the wide range of professionally
competent assistance; and (2) that the deficient
performance so seriously affected the outcome of the plea
process that, 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.’
Evaluating the totality of the circumstances surrounding the guilty plea is an
inherently factual inquiry which requires consideration of “the accused’s demeanor,
background and experience, and whether the record reveals that the plea was
voluntarily
made.“’ While “[slolemn declarations in open court carry a strong
presumption of verity,“‘o ”the validity of a guilty plea is not determined by reference to
some magic incantation recited at the time it is taken[.]“” The trial court’s inquiry into
allegations of ineffective assistance of counsel requires the court to determine whether
counsel’s performance was below professional standards and “caused the defendant to
6& Centers v. Commonwealth, supra note 2 at 54 (“The validity of a guilty plea
must be determined not from specific key words uttered at the time the plea was taken,
but from considering the totality of circumstances surrounding the plea.” Id.); Kotas v.
Commonwealth, Ky., 656 S.W.2d 445, 447 (1978).
7466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
‘Sparks v. Commonwealth, Ky.App., 721 S.W.2d 726, 727-8 (1987). See also
Centers v. Commonwealth, supra note 2 at 55.
9Centers v. Commonwealth, supra note 2 at 54.
‘Old. (citing Blackledge v. Allison, 431 U.S. 63, 9 7 S. Ct. 1621, 52 L. Ed. 2d 136
(1977)).
“Kotas v. Commonwealth, supra note 6 at 447.
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lose what he otherwise would probably have won”‘2 and “whether counsel was so
thoroughly ineffective that defeat was snatched from the hands of probable victory.“‘3
Because “[a] multitude of events occur in the course of a criminal proceeding which
might influence a defendant to plead guilty or stand trial,“14 the trial court must evaluate
whether errors by trial counsel significantly influenced the defendant’s decision to plead
guilty in a manner which gives the trial court reason to doubt the voluntariness and
validity of the plea.
Because of the factual determinations inherent in this evaluation, Kentucky
appellate courts have recognized that “the trial court is in the best position to determine
if there was any reluctance, misunderstanding, involuntariness, or incompetence to
plead guilty”‘5 at the time of the guilty plea and in a “superior position to judge
[witnesses’] credibility and the weight to be given their testimony”‘6 at an evidentiary
hearing. Accordingly, this Court reviews a trial court’s ruling on a defendant’s motion to
withdraw his guilty plea only for abuse of discretion by “ascertain[ing] whether the court
below acted erroneously in denying that appellants pleas were made involuntarily.“‘7
We find that the trial court did not abuse its discretion when it found that none of
Bronk’s counsel’s deficiencies affected the voluntariness of Bronk’s guilty plea and
‘*Folev v. Commonwealth, KY., 17 S.W.3d 878, 884 (2000) (quotinq United
States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992)).
131d.
14Jewell
v. Commonwealth, Ky., 725 S.W.2d 593, 595 (1987).
“Centers v. Commonwealth, supra enote l2s at 54. i t t l e f i e l d
S e
a
o L
Commonwealth, Ky.App., 554 S.W.2d 872, 874 (1977).
16Kotas v. Commonwealth, supra note 6 at 447.
“Lynch v. Commonwealth, Ky.App., 610 S.W.2d 902, 905 (1981).
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v .
denied the motion to withdraw the plea. In its role as fact-finder, the trial court found
significant the testimony of the judge who accepted Bronk’s guilty plea:
This Court is impressed by the testimony of Judge Steven
Mershon, who testified that he was well aware that Kaplan
was not attending all of the hearings, that were generated by
the public defenders, representing the other defendants in
this case. Judge Mershon addressed the quality of Kaplan’s
representation of Bronk on occasion, but notwithstanding
this, he made a careful inquiry of Bronk. In conclusion,
Judae Mershon was and still remains convinced that Bronk’s
plea of auiltv was knowinaly and intelligently entered.
Our review of the totality of the circumstances surrounding Bronk’s plea finds
substantial evidence that supports the trial courts finding. Bronk, who was an adult at
the time of the plea and who appeared to be articulate and to have an above-average
comprehension of the proceedings, signed a statement that he had read and
understood the charges and his rights and that he waived those rights in order to enter
his plea of guilty. The trial court gave Bronk ample opportunity during the plea colloquy
to retract his plea or inform the court of his dissatisfaction with his counsel. The record
demonstrates that Bronk understood his rights and was satisfied with his counsel at the
time he plead guilty.
Bronk faced the possibility of life imprisonment if the case proceeded to trial, and
the plea agreement Bronk entered into involved a shorter term of imprisonment and a
substantially earlier parole eligibility date than if he were convicted of the indicted
offenses. We find no merit to Bronk’s contention that his counsel’s failure to advise him
that he could ask the trial court to suppress evidence of his confession constituted
ineffective assistance of counsel which rendered his plea involuntary.‘8 As was the
18a Relford v. Commonwealth, Ky.App., 558 S.W.2d 175, 178 (1977)
(emphasis added).
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case in Couch v. Commonwealth,‘g “[WI e can find nothing in this record to indicate that
[the defendant] was in any wise misled and surely not to the extent that the plea
became involuntarv. This court is of the opinion that the trial court properly exercised its
discretion under RCr 8.10 in denying [the] motion to withdraw his guilty plea.“20
IV. CONCLUSION
For the above reasons, we affirm the judgment of the Jefferson Circuit Court.
Lambert, C.J.; Graves, Johnstone, Keller and Wintersheimer, JJ., concur.
Cooper, J., concurs by separate opinion in which Stumbo, J., joins.
19Supra note 5.
201d, at 715. See also Centers v. Commonwealth, supra note 2 at 55 (“Reviewing
the record and all of the surrounding circumstances of the instant case, we find that
appellant’s guilty plea was knowingly, intelligently, and voluntarily made.” Id.); Soarks v.
Commonwealth, supra note 8 at 798; Kotas v. Commonwealth, supra note 6 at 447 (“[IIt
is beyond cavil that the trial court was correct when it found that this guilty plea was
entered voluntarily . . . . Fairness and justice will support no other conclusion.” Id.).
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COUNSEL FOR APPELLANT:
Suzanne Hopf
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
A. B. Chandler, III
Attorney General
Gregory C. Fuchs
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
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RENDERED: OCTOBER 25,200l
TO BE PUBLISHED
1999-SC-0687-MR
DAVID BRONK
V.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE EDWIN A. SCHROERING, JR., JUDGE
96-CR-617
COMMONWEALTH OF KENTUCKY
APPELLEE
CONCURRING OPINION BY JUSTICE COOPER
I concur in the result reached by the majority. However, I write separately to
dispute the majority’s conclusion that whether to permit a defendant to withdraw a guilty
plea is within the discretion of the trial court and that the standard of review is whether
there was an “abuse of discretion.” I believe that to be an incorrect statement of the
law. See, e.g., Haight v. Commonwealth, Ky., 760 S.W.2d 84 (1988) and cases cited
therein at 88. The majority opinion and the case upon which it primarily relies, Couch v.
Commonwealth, Ky., 528 S.W.2d 712 (1975), both cite in support of this conclusion the
language of RCr 8.10, viz
[T]he court mav permit the plea of guilty or guilty but mentally ill to be
withdrawn and a plea of not guilty substituted.
(Emphasis added.) The rule does not say that “the court may or may not permit, etc.”
In other words, RCr 8.10 vests the trial court with discretion to permit a guilty plea to be
withdrawn; however, whether to deny a motion to withdraw a guilty plea is not
discretionary but requires a factual inquiry into the circumstances surrounding the plea,
primarily to ascertain whether it was voluntarily entered. That is especially true where,
as here, the allegation is that the plea was the product of ineffective assistance of
counsel. If the motion is denied, the decision is reviewed under the “clearly erroneous”
standard, i.e., whether the trial judge’s denial of the motion was supported by
“substantial evidence.” At times, the majority opinion appears to adhere to this
standard:
Evaluating the totality of the circumstances surrounding the guilty
plea is an inherently factual inquiry which requires consideration of “the
accused’s demeanor, background and experience, and whether the
record reveals that the plea was voluntarily made.”
Slip op. at 6 (quoting Centers v. Commonwealth, Ky. App., 799 S.W.2d 51, 54 (1990)).
In its role as fact-finder, the trial court found significant testimony of the
judge who accepted Bronk’s guilty plea.
Id.at 8.
Our review of the totality of the circumstances surrounding Bronk’s
plea finds substantial evidence that supports the trial courts finding.
Id.
At other times, the opinion appears to use the standards interchangeably:
Accordingly, this Court reviews a trial court’s ruling on a defendants
motion to withdraw his guilty plea only for abuse of discretion by
“ascertain[ing] whether the court below acted erroneously in denying that
Appellant’s pleas were made involuntarily.”
Id. at 7 (quoting Lynch v. Commonwealth, Ky. App., 610 S.W.2d 902, 905 (1981)).
(Lynch, however, did not purport to apply an abuse of discretion standard, but held that
“we are unable to state that the findings of the evidentiary hearing were in error and that
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the court below acted erroneously in relying upon same to deny appellant’s 11.42
motion.” Id.)
Ultimately, however, the majority opinion concludes that whether to deny
Appellant’s motion to withdraw his guilty plea was within the discretion of the trial court.
Slip op. at 9. I disagree with that statement as a general proposition. However, a
review of the record and the evidence presented at the hearing on the motion reveals
that the trial judge’s findings were supported by substantial evidence and, therefore,
that his conclusion was not “clearly erroneous.” Thus, I concur in the result reached in
this case.
Stumbo, J., joins this concurring opinion.
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