JEFF NASH v. COMMONWEALTH OF KENTUCKY
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RENDERED: SEPTEMBER 1, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001121-MR
JEFF NASH
APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE LEONARD L. KOPOWSKI, JUDGE
ACTION NO. 98-CR-00456
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, KNOPF AND TACKETT, JUDGES.
JOHNSON, JUDGE:
Jeff Nash appeals from the judgment of the
Campbell Circuit Court entered on May 5, 1999, that sentenced him
to prison for ten years on his convictions for burglary in the
third degree1 and being a persistent felony offender in the first
degree (PFO I).2
Having concluded that the trial court did not
abuse its discretion in denying Nash’s motion to withdraw guilty
plea, we affirm.
1
Kentucky Revised Statutes (KRS) 511.040.
2
KRS 532.080(3).
In October 1998, a criminal complaint was filed
accusing Nash of unlawfully entering a building and damaging two
metal boxes in an attempt to remove tools belonging to the owner.
In December 1998, the Campbell County Grand Jury indicted Nash on
one felony count of burglary in the third degree and PFO I. On
December 22, 1998, Nash appeared with counsel for arraignment on
the charges.
After several pretrial conferences, a trial was
scheduled for March 4, 1999.
On the morning of trial, Nash entered a guilty plea to
both counts of the indictment pursuant to a plea agreement with
the Commonwealth, which recommended the minimum sentence of ten
years in prison.
The trial court conducted a hearing and found
that Nash understood the nature of the charges against him; that
his plea was voluntary; that there was a factual basis for the
plea; and that he knowingly and voluntarily waived his right to
trial by jury, his privilege against self-incrimination, and his
right to confront any witnesses.
The circuit court postponed
sentencing until April pending preparation of a presentence
investigation report.
On the day of sentencing, April 21, 1999, Nash’s
attorney filed a motion seeking leave to withdraw as counsel and
also seeking leave to allow Nash to withdraw his guilty plea.
In
his affidavit, counsel stated that Nash maintained his innocence
and did not fully understand the nature of the plea agreement
because he was ill at the time of the plea.
The trial court
granted counsel’s motion to withdraw as attorney of record,
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appointed a public defender to represent Nash, and delayed ruling
on the motion to withdraw the guilty plea.
On May 3, 1999, the trial court conducted a hearing on
the motion.
After hearing from the appellant and considering the
arguments of counsel, the court denied the motion and sentenced
Nash consistent with the Commonwealth’s recommendation to five
years for burglary in the third degree enhanced to ten years on
the PFO I conviction.
This appeal followed.
Nash argues that the trial court erred by failing to
allow him to withdraw his guilty plea.
He contends that the plea
was not knowingly, intelligently, and voluntarily entered.
Nash
asserts that since he is illiterate and was on medication at the
time of the plea, he did not fully understand the nature and
ramifications of the plea agreement.
RCr3 8.10 provides 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.”
As
the language of RCr 8.10 indicates and case law clearly
establishes, the decision of whether to allow a defendant to
withdraw his guilty plea prior to entry of the final judgment is
within the sound discretion of the trial court.4
Factors
relevant to the trial court’s exercise of its discretion include:
(1) the amount of time that elapsed between the plea and the
motion to withdraw; (2) the presence or absence of a valid reason
3
Kentucky Rules of Criminal Procedure.
4
See Couch v. Commonwealth, Ky., 528 S.W.2d 712 (1975);
Anderson v. Commonwealth, Ky., 507 S.W.2d 187 (1974).
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for the defendant’s failure to present the grounds for withdrawal
at an earlier point in the proceedings; (3) whether the defendant
has asserted his legal innocence; (4) the circumstances
underlying the entry of the guilty plea; (5) the defendant’s
nature and background; (6) a defendant’s lack of experience with
the criminal justice system; and (7) the potential prejudice to
the state should the plea be withdrawn.5
Several courts have
noted that the purpose of the rule on withdrawal of guilty pleas
“is to allow a hastily entered plea made with unsure heart and
confused mind to be undone, not to allow a defendant ‘to make a
tactical decision to enter a plea, wait several weeks, and then
obtain a withdrawal if he believes he made a bad choice in
pleading guilty.’”6
During the sentencing hearing, Nash asserted that prior
to entering the guilty plea he had met only once with his
attorney and that they did not discuss the facts of the case or
potential defenses to the charges.
He claimed that since he is
illiterate he was unable to read the guilty plea documents,
including the motion to enter a guilty plea and the
Commonwealth’s offer on a plea of guilty.
He said that his
5
United States v. Pluta, 144 F.3d 968, 973 (6th Cir.
1998)(citing United States v. Bashara, 27 F.3d 1174, 1181 (6th
Cir. 1994)), cert. denied, 525 U.S. 916, 119 S.Ct. 266, 142
L.Ed.2d 218 (1998); United States v. Riascos-Suarez, 73 F.3d 616,
621 (6th Cir. 1996)(involving Fed. R. Crim. P. 32(d) the federal
counterpart to RCr 8.10), cert. denied, 519 U.S. 848, 117 S.Ct.
136, 136 L.Ed.2d 84, (1996).
6
United States v. Alexander, 948 F.2d 1002, 1004 (6th Cir.
1991)(quoting United States v. Carr, 740 F.2d 339, 345 (5th Cir.
1984)), cert. denied, 502 U.S. 1117, 112 S.Ct. 1231, 117 L.Ed.2d
465 (1992).
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attorney did not fully explain these documents or the legal
aspects of the plea to him.
Nash also alleged that his attorney
told him that if he changed his mind he always had the option of
withdrawing the guilty plea.
Nash claimed that he was on
medication at the time of the plea that impaired his ability to
understand the proceedings.
Finally, he asserted his innocence
and complained about the quality of his attorney’s assistance in
representing him.
Based on its review of the record, the trial
court denied the motion to withdraw the guilty plea.
Our review indicates that during the guilty plea
hearing the trial court engaged Nash in a lengthy colloquy
concerning his willingness to enter the guilty plea.
When asked
if he was under the influence of any drugs or alcohol to the
extent that it would hinder his ability to understand the
proceedings, Nash responded, “No.”
He responded affirmatively
when asked if he had read or had had read to him the motion to
enter a guilty plea and the Commonwealth’s offer on a plea of
guilty.
He acknowledged having voluntarily signed the motion to
enter a guilty plea, which set out his various constitutional
rights.
Nash indicated that he understood the allegations
supporting the burglary and PFO charges and that he had committed
those offenses.
Nash indicated that he had not been threatened
or promised anything to get him to plead guilty other than the
recommendation by the Commonwealth of a ten-year sentence.
Defense counsel stated that he had explained to Nash his various
constitutional rights and that he believed Nash understood those
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rights.
Nash stated that he had had a sufficient amount of time
to discuss his decision to enter a guilty plea.
After reviewing the record, we cannot say that the
trial court abused its discretion in failing to allow Nash to
withdraw his guilty plea.
The record refutes Nash’s allegations
that he did not understand the nature of the proceedings.
He
specifically told the trial court that he had fully discussed the
case with his attorney, that he had had the guilty plea documents
read to him, that he was not impaired by any drugs, that he
understood the facts supporting the charges, and that he had
committed the offenses.
Statements by a defendant made during a
guilty plea hearing “in open court carry a strong presumption of
verity.”7
Absent extraordinary circumstances, declarations in
open court under oath should not be lightly cast aside.8
Several factors militate in favor of the denial of
Nash’s motion to withdraw guilty plea.
First, he waited until
the day of the sentencing hearing, approximately seven weeks
after entering his guilty plea, to make his motion to withdraw.
Second, he has offered no explanation or reason for waiting so
long to request withdrawal of his plea.
Third, he has had
extensive experience with the criminal justice system as
evidenced by several prior felony and misdemeanor convictions.
Fourth, most of his factual allegations are contradicted by
explicit statements made during the guilty plea hearing.
7
Nash
Blackledge v. Allison, 431 U.S. 63, 73, 97 S.Ct. 1621,
1629, 52 L.Ed.2d 136 (1977).
8
Zilich v. Reid, 36 F.3d 317, 320 (3rd Cir. 1994).
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has offered no plausible explanation for these contradictions.
Although he alleges that he was taking medication at the time of
the guilty plea, he has not identified the exact drug or how it
affected his ability to understand the proceedings.
Similarly,
his claim that his alleged illiteracy impacted the validity of
the guilty plea is rebutted by the fact that he said he had
discussed his constitutional rights with his attorney, that he
acknowledged signing the guilty plea documents, and that the
documents had been read to him.
While Nash now proclaims his
innocence, he has not provided any explanation for why he
admitted having committed the offenses at the guilty plea
hearing.
Nash exhibited no indication of confusion or hesitancy
during the guilty plea hearing.
Based on our review of the
record, we cannot conclude that the trial court abused its
discretion in denying Nash’s motion to withdraw his guilty plea.
The judgment of the Campbell Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kim Brooks
Covington, Kentucky
A. B. Chandler, III
Attorney General
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
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