MARC A. KELLY v. COMMONWEALTH OF KENTUCKY
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RENDERED:
October 3, 1997; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 96-CA-2683-MR
MARC A. KELLY
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN K. MERSHON, JUDGE
ACTION NO. 93-CR-0107
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * *
BEFORE:
ABRAMSON, COMBS, AND SCHRODER, JUDGES.
SCHRODER, JUDGE.
This is an appeal from an order denying relief
under Kentucky Rule of Criminal Procedure (RCr) 11.42.
Finding
that the record supports the decision of the circuit court, we
affirm.
On January 11, 1993, a grand jury of Jefferson County
returned an indictment against Marc A. Kelly, charging him with
attempted murder, first-degree robbery, receiving stolen property
over $100, complicity to commit the aforementioned offenses,
resisting arrest, fourth-degree assault and carrying a concealed
deadly weapon.
Kelly's co-defendant, John Carlton Martin, was
charged with the same offenses, with the exception of the
concealed deadly weapon charge.
A public defender, Christina
Brown, was appointed to represent Kelly and trial was set for
November 18, 1993.
On the date set for trial, both Martin and Kelly
withdrew their pleas of not guilty and entered pleas of guilty to
the amended charges of first-degree wanton endangerment, firstdegree robbery, resisting arrest and carrying a concealed deadly
weapon, and the Commonwealth moved to dismiss the remaining
charges.
Because Kelly and the Commonwealth had not reached an
agreement as to a recommended sentence, the Commonwealth's offer
on a plea of guilty did not include one.
The judgment on the
guilty plea recited that it was an "open plea" of guilty.
On
December 16, 1993, after a presentence investigation, the court
sentenced Kelly to thirteen years' imprisonment.
On January 6, 1994, Kelly's counsel filed a motion to
withdraw the plea of guilty.
The motion alleged that, in an off-
the-record discussion on the day set for trial, Jefferson Circuit
Court Judge, William Knopf, promised to "do the right thing" in
sentencing Kelly.
The motion recited that since Kelly had
rejected the Commonwealth's offer of thirteen years, and was
holding out for a ten-year sentence, the court had effectively
promised Kelly a ten-year sentence by encouraging him to make an
open guilty plea.
The court filed its own response to this
motion on January 14, 1994.
In its response, the court
acknowledged that there was an off-the-record discussion of the
case.
The court, however, denied promising the minimum sentence
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of ten years.
Judge Knopf explained that when he said he would
"do the right thing" by way of punishment, he meant that he would
hear arguments from the Commonwealth and Kelly and consider all
the appropriate sentencing factors.
Finally, the court noted
that on the day that he entered his guilty plea, Kelly denied
being promised anything.
The same day, the court also ordered
Kelly's counsel to clarify the grounds for relief in the
January 6, 1994 motion.
The court noted that the pleading was
not verified, as required under RCr 11.42.
Kelly's motion to withdraw the plea of guilt was set
for hearing on February 14, 1994.
Before that date, however, his
public defender was removed from the case because of a possible
conflict of interest, and the court appointed the Department of
Public Advocacy.
Kelly's new counsel, Anthea Boarman, was unable
to appear at the February 14 hearing, and the court reset it for
February 28, 1994.
The next pleading which appears on the record
is a motion for a voluntary dismissal without prejudice, filed by
Kelly, pro se, on October 27, 1995.
Kelly asked the court to
dismiss his motion without prejudice and to file his own verified
motion under RCr 11.42.
Kelly's pro se RCr 11.42 motion alleges
that the circumstances of his guilty plea rendered it
involuntary, since the judge had in effect promised him a tenyear sentence.
Kelly also alleged that his counsel was
ineffective for permitting the guilty plea and sentence to be
entered.
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A third attorney, Mark Wettle, filed a notice of entry
of appearance of counsel for Kelly on December 12, 1995.
After
some confusion over Kelly’s representation, Kelly filed another
pro se motion on April 14, 1996, asking for a default judgment.
On April 29, 1996, Jefferson Circuit Court Judge Mershon noted
that although Mr. Wettle had filed a notice of entry of
appearance, he had not filed anything with the court triggering
the Commonwealth's need to respond.
The court ordered that Mr.
Wettle would have forty-five days to amend or supplement Kelly's
pleadings and file a memorandum, the Commonwealth would have
twenty days to respond, and the court would rule thereafter.
On
August 6, 1996, Mark Wettle filed a supplemental pleading on
Kelly's behalf.
The Commonwealth filed its response on
September 3, 1996.
In an order entered September 5, 1996, the
court denied Kelly's request for relief under RCr 11.42, without
a hearing.
This appeal followed.
On appeal, Kelly again argues that his guilty plea was
not knowingly and intelligently entered because it was based on
the trial court's promises concerning sentencing.
He next
alleges that his first counsel, Christina M. Brown, was
ineffective because she did not timely file Kelly's motion to
withdraw his plea of guilty and failed to have Kelly verify the
motion.
Finally, Kelly claims that his later attorneys were
ineffective because they failed to request an evidentiary hearing
on Kelly's RCr 11.42 motion.
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Kelly's second argument is without merit.
Kelly argues
that he was denied effective assistance of counsel because his
first attorney did not file a motion to withdraw his guilty plea
within ten days as required by Kentucky Rules of Civil Procedure
(CR) 59.05, and failed to have Kelly verify the motion as
required under RCr 11.42.
Any error here was harmless since
Kelly filed his own verified RCr 11.42 motion, and the court
entertained it.
CR 61.01.
In his pro se motion, Kelly did not
fault his counsel for any failing with respect to filing a motion
to withdraw his guilty plea, but rather for permitting him to
plead guilty under the circumstances.
Likewise, Kelly's third argument is readily disposed
of.
Kelly's second and third attorneys, obviously, did not
allege that they themselves were ineffective, nor did Kelly in
his original RCr 11.42 motion.
properly before this Court.
These claims, therefore, are not
Kelly's complaint that the later
attorneys failed to request an evidentiary hearing would be
harmless error in any event.
Kelly himself requested an
evidentiary hearing in his pro se RCr 11.42 motion.
Despite any
lapses by his successive counsel, Kelly's RCr 11.42 motion and
request for an evidentiary hearing, supplemented by Mark Wettle,
his third attorney, were considered by the circuit court on their
merits.
The issue in this case is whether or not the circuit
court judge's involvement in the plea negotiations should render
the guilty plea invalid.
The government should not be permitted
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to welsh on its bargain, Workman v. Commonwealth, Ky., 580 S.W.2d
206 (1979), overruled on other grounds by Morton v. Commonwealth,
Ky., 817 S.W.2d 218 (1991), and the court should not inject
itself into the plea bargaining process because of the danger of
misleading the parties.
84 (1988).
Haight v. Commonwealth, Ky., 760 S.W.2d
In Haight, the Supreme Court of Kentucky ruled that
the circuit court had erred in refusing to allow the defendant to
withdraw his guilty plea, after the court declined to sentence
the defendant in accordance with the plea agreement between the
prosecutor and defense counsel.
The Court held that, because of
the circuit court's extensive involvement in the plea
negotiations, its ambiguous statements regarding whether or not
it would accept the Commonwealth's sentence recommendation, and
the fact that it permitted the guilty plea form to be
substantially altered, the guilty plea was defective and Haight
should have been permitted to withdraw his plea.
Id. at 88.
In determining the validity of guilty pleas in criminal
cases, the plea must represent a voluntary and intelligent choice
among the alternative courses of action open to the defendant.
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d
162 (1970);
(1986).
Sparks v. Commonwealth, Ky. App., 721 S.W.2d 726
Both federal and state courts must satisfy themselves
that guilty pleas are voluntarily and intelligently made by
competent defendants.
Brady v. United States, 397 U.S. 742, 90
S.Ct. 1463, 25 L.Ed.2d 747 (1970).
Since pleading guilty
involves the waiver of several constitutional rights, a waiver of
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these rights cannot be presumed from a silent record.
The court
must question the accused to determine that he has a full
understanding of what the plea connotes and of its consequences,
and this determination should become part of the record.
Boykin
v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274
(1969);
Sparks, supra.
The validity of a guilty plea is not determined from
specific key words uttered at the time the plea was taken, but
from considering the totality of circumstances.
Kotas v.
Commonwealth, Ky., 565 S.W.2d 445, 447 (1978);
Lynch v.
Commonwealth, Ky. App., 610 S.W.2d 902 (1980);
Sparks, supra.
These circumstances include the accused's demeanor, background
and experience, and whether the record reveals that the plea was
voluntarily made.
Sparks, supra.
The trial court is in the best
position to determine if there was any reluctance,
misunderstanding, involuntariness, or incompetence to plead
guilty.
Littlefield v. Commonwealth, Ky. App., 554 S.W.2d 872,
874 (1977).
Solemn declarations in open court carry a strong
presumption of verity.
Blackledge v. Allison, 431 U.S. 63, 97
S.Ct. 1621, 52 L.Ed.2d 136 (1977).
App., 799 S.W.2d 51, 54 (1990).
Centers v. Commonwealth, Ky.
Upon motion under RCr 11.42, if
the movant's allegations are refuted by the record as a whole,
the trial court is not required to grant an evidentiary hearing.
Hopewell v. Commonwealth, Ky. App., 687 S.W.2d 153, 154 (1985).
We begin with a review of the plea negotiations and the
court’s involvement therein.
In contrast to both Workman and
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Haight, there was no plea agreement in the case sub judice.
A
review of the record indicates that the court inquired about plea
negotiations at pretrial hearings.
In fact, at a hearing on
July 20, 1993, Kelly's counsel informed the court that they had
reached an agreement, based upon Commonwealth's offer of thirteen
years to serve.
Upon hearing counsel's announcement, Kelly made
his disagreement known, and the case was set for trial on
November 18, 1993.
On that date, the court held an off-the-record
discussion with Kelly, his counsel, his co-defendant and his
counsel as to the progress of plea negotiations.
Determining
that no agreement could be reached, the court suggested that both
defendants enter open pleas of guilty.
It is not disputed that
the circuit court made the comment that it would "do the right
thing" with regard to punishment, if the defendants entered an
open plea.
There is no suggestion, however, that the court
mentioned a particular term of imprisonment or expressly promised
to be more lenient than the prosecution's offer.
On the record,
the court accepted both defendants' guilty pleas to reduced
charges.
The Commonwealth noted that it would have amended the
charges, even if the case had gone to trial, because the proof
did not fit the charges as set out in the indictment.
Since the
Commonwealth made no sentence recommendation, the court could not
have misled Kelly into thinking it would accept it, thus
distinguishing this case from Haight.
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The circuit court took the necessary precautions to
insure that Kelly's guilty plea was knowingly, voluntarily and
intelligently given.
The court made it very clear that the plea
was an open plea, explaining that Kelly's counsel and the
Commonwealth had not been able to agree on a recommended
sentence.
The court specifically asked both Kelly and his co-
defendant whether they understood that sentencing would be left
up to the court.
Each said "yes."
The court explained that
Kelly was facing punishment in the range of a minimum of ten
years to a maximum of twenty years, and that in an open plea,
during sentencing, the attorneys for the prosecution and defense
would present arguments, but that the court would make the
sentencing decision.
The court also asked whether Kelly was
entering his guilty plea as a result of any promises or threats.
Kelly responded "no."
The court asked Kelly's counsel if she had
discussed his constitutional rights with him and was confident he
understood.
She stated that she had and that she was.
At sentencing, the court again made reference to the
fact that the pleas were open guilty pleas, because no agreement
had been reached on the term of years.
After reviewing the
presentence investigation and the victim impact statement, and
listening to Kelly's counsel's argument for a minimum sentence of
ten years, Kelly's personal apology, the testimony of the police
officer who encountered the robbery in progress and the victim's,
the court sentenced Kelly to a term of thirteen years.
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Under the circumstances of this case, we find that the
circuit court did not become so deeply involved in the plea
negotiations that he misled the parties, and Kelly’s guilty plea
was knowingly, voluntarily and intelligently entered.
Kelly
apparently gambled that he would receive a more favorable
sentence from the judge than from a jury after a trial, or as
recommended by the Commonwealth.
He was not entitled to believe
that he had a guaranteed sentence of fewer than thirteen years
based upon an isolated comment by the court.
By entering a
guilty plea, Kelly was depending on the trial court to impose an
appropriate sentence, and the court was required to observe a
number of procedural and substantive safeguards and impose a
sentence within the limits prescribed by law.
Corey, Ky., 826 S.W.2d 319, 321 (1992).
Commonwealth v.
The court fulfilled its
obligations.
Finally, the court correctly dismissed Kelly’s RCr
11.42 motion without an evidentiary hearing.
The court’s
recollection of the off-the-record discussion was placed in the
record, and the record as a whole refutes Kelly's allegations.
Hopewell, supra.
In his brief, Kelly suggests that his attorney
may have made comments interpreting the court’s remarks for
Kelly, and that a hearing is required to determine what effect
these may have had.
This was not raised at the circuit court,
either in Kelly’s pro se motion or as supplemented by his
attorney, and will not be considered on appeal.
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For the foregoing reasons, the decision of the
Jefferson Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Suzanne A. Hopf
New Salisbury, Indiana
A. B. Chandler, III
Attorney General
Michael L. Harned
Assistant Attorney General
Frankfort, Kentucky
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