TRAVIS CARTER v. COMMONWEALTH OF KENTUCKY
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RENDERED: July 23, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000168-MR
TRAVIS CARTER
v.
APPELLANT
APPEAL FROM JESSAMINE CIRCUIT COURT
HONORABLE ROBERT JACKSON, JUDGE
ACTION NO. 96-CR-00116
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE:
BUCKINGHAM, HUDDLESTON, and KNOPF, Judges.
BUCKINGHAM, JUDGE.
Travis Carter (Carter) appeals from an order
of the Jessamine Circuit Court setting aside a prior order
allowing him to withdraw his guilty plea.
We affirm.
In December 1996, Carter was indicted by a Jessamine
County grand jury for the charge of first-degree rape.
The trial
court ordered that Carter be evaluated to determine his
competency to stand trial, and it found him to be competent after
conducting a competency hearing.
On August 11, 1997, Carter
entered into a plea agreement with the Commonwealth whereby he
would plead guilty to an amended charge of criminal attempt to
commit first-degree rape and would receive a sentence of fifteen
years in prison.
Carter, who was represented by counsel, signed a
document entitled “Waiver of Further Proceedings with Petition to
Enter Plea of Guilty” and pled guilty pursuant to the plea
agreement.
Prior to accepting the guilty plea, the trial judge
engaged in a colloquy with Carter and determined that Carter
understood the proceedings, had discussed the facts of the case
with his attorney, had not been threatened or promised anything
relative to the plea, and was certain that he desired to plead
guilty to the amended offense.
Carter also related the facts of
the case as he understood them and admitted that his actions
constituted the offense of criminal attempt to commit firstdegree rape.
At his sentencing hearing on September 19, 1997, Carter
made a pro se motion to withdraw his guilty plea on the grounds
that he had differences of opinion with his attorney and that his
guilty plea was not knowingly and willingly made.
The trial
court denied the motion and entered an order to that effect.
Carter’s counsel was allowed to withdraw from the case, and new
counsel was eventually appointed to represent him.
On November 17, 1997, Carter filed a pro se motion for the
trial court to reconsider his motion to withdraw his guilty plea
and for the trial judge to withdraw from the case.
The court
denied the motion as it related to the trial judge but granted
the motion to reconsider and set aside Carter’s guilty plea.
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The
court’s order entered on November 27, 1997, included the
following statements:
The Court did enter into discussion on the
video record and confirm that Defendant
understood his rights and that the plea was
supported by the evidence.
. . . .
[N]o audio record is available to help
establish that the Court did, in fact, make
findings that Defendant had committed the
crime he was pleading guilty to.
. . . .
The Defendant’s pro se motion to withdraw his
guilty plea is proper in light of the
unavailability of the video record to help
establish that the Court correctly found
evidence of the crime and that Defendant
knowingly, intelligently and voluntarily
waived all his rights and this motion, having
reconsidered same, should be granted.
. . . .
[W]hile the Court is of the opinion that
there was, in fact, discussion regarding his
rights and the crime he was pleading guilty
to, there is no supporting video [footnote
omitted] record of the Court’s action and it
is the Court’s conclusion that the
Defendant’s motion to withdraw his guilty
plea should be granted.
On December 5, 1997, the Commonwealth filed a motion to
reconsider the trial court’s order setting aside Carter’s guilty
plea.
As ground for its motion, the Commonwealth stated that the
audio record of the guilty plea had now become available for
review by the court.
After reviewing the audio record of the
guilty plea, the court entered an order setting aside its order
of November 26, 1997, allowing withdrawal of Carter’s guilty plea
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and ordered that the plea be reinstated.
The court stated in its
order that
A subsequent review of the record
supports the Commonwealth’s contention that
the plea of guilty was knowingly,
intelligently and voluntarily given by a
competent Defendant; that he did, with advice
of counsel, execute the two required forms
and the Court did enter into discussion and
make findings on the video record which are
supportive of his decision to plead guilty.
Carter was subsequently sentenced to fifteen years in prison, and
this appeal followed.
Kentucky Rule of Criminal Procedure (RCr) 8.10 provides
in relevant part that “[a]t 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.”
However, “the
permission to withdraw a guilty plea and substitute a plea of not
guilty is a matter within the sound discretion of the trial
court.”
Anderson v. Commonwealth, Ky., 507 S.W.2d 187, 188
(1974).
In this case, Carter was found to be competent to stand
trial, was represented by counsel, and entered a guilty plea on
the record after engaging in a colloquy with the trial judge
concerning his understanding of his legal rights and the nature
of the charge and proceedings against him.
Furthermore, Carter
and his attorney signed documents indicating Carter’s desire to
plead guilty to the amended charge and indicating his full
understanding and consent to the plea agreement and guilty plea.
While Carter argues that a court should not reinstate a
plea over a defendant’s objection once the plea has been set
aside, he cites no authority to support his argument.
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In fact,
he concedes that there is a general rule that an interlocutory
order is subject to change at any time prior to adjudication.
See Bank of Danville v. Farmers Nat’l Bank of Danville, Ky., 602
S.W.2d 160, 164 (1980).
Kentucky Rule of Civil Procedure (CR)
60.02(a), which is also applicable to criminal cases, gave the
trial court the authority to grant the Commonwealth’s motion due
to the trial court’s “mistake” in believing that the record of
Carter’s guilty plea was unavailable.1
We conclude that the
trial court acted within its discretion in entering the order
setting aside its previous order allowing Carter to withdraw his
guilty plea.
The judgment of the Jessamine Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Franklin P. Jewell
Louisville, KY
Albert B. Chandler III
Attorney General
Victoria Aberle
Assistant Attorney General
Frankfort, KY
1
We are aware of this court’s recent opinion in Turner v.
Commonwealth, 1997-CA-003213-MR, which reversed a trial court’s
order granting a motion by the Commonwealth to reconsider an
order granting a defendant’s motion to withdraw his guilty plea.
The facts in that case are distinguishable from the facts in the
case sub judice in that no such mistake was involved in Turner.
In fact, this court in Turner distinguished its facts from those
in a case where the court reinstated a guilty plea after
previously allowing it to be withdrawn due to a “mistaken”
belief. See People v. Wilkens, 139 Mich. App. 778, 362 N.W.2d
862 (1984).
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