ADRIAN LEE CALDWELL v. COMMONWEALTH OF KENTUCKY
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RENDERED: AUGUST 4, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001236-MR
ADRIAN LEE CALDWELL
APPELLANT
APPEAL FROM McCRACKEN CIRCUIT COURT
HONORABLE JAMES RON DANIELS, JUDGE
ACTION NO. 98-CR-00168
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
COMBS, KNOPF, and TACKETT, Judges.
COMBS, JUDGE:
The appellant, Adrian Lee Caldwell, appeals from
the ruling of the McCracken Circuit Court denying his motion to
withdraw a guilty plea.
He urges that it was an abuse of
discretion for the court to deny his motion.
We agree;
therefore, we vacate and remand.
On August 14, 1998, the McCracken County Grand Jury
indicted Caldwell on one count of trafficking in a controlled
substance (cocaine), first offense.
Caldwell appeared in court on January 22, 1999, for a
suppression hearing dressed in orange prison clothing.
apparently in custody for another violation.
He was
His motion to
suppress was denied.
On February 12, 1999, Caldwell appeared for a pretrial
conference.
This conference was postponed due to a delay in the
transfer of a file by another division concerning a second
indictment.
Caldwell’s counsel alluded to the transfer and
mentioned that this second indictment was not yet on the court’s
docket.
He also noted that the Commonwealth had offered to
settle both indictments for consecutive terms.
The court
suggested that these two indictments be called at the end of the
day’s docket.
Approximately two and one-half hours following this
initial delay, Caldwell, by counsel, came before the court and
announced his intention to enter a guilty plea on case “168,
which was properly before the court, today.”
He agreed that case
“261" was to be set for pretrial on March 19; the court so
ordered.
At this point, the Commonwealth announced that it would
offer a recommendation of five years on the charge of trafficking
in cocaine.
This sentencing recommendation apparently took
Caldwell’s counsel by surprise as he noted that the
recommendation was not for a reduced charge.
Counsel rejected
the offer of the Commonwealth and announced that Caldwell was set
for trial.
The court then asked Caldwell to "make up his mind."
Following a brief consultation at the podium, Caldwell told his
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counsel that he would enter a guilty plea pursuant to the
recommendation of the Commonwealth.
The court proceeded to
interrogate Caldwell, advising him that “if we say something you
don’t understand or don’t agree with about your case, will you
ask me to explain it for you?”
Caldwell indicated that he would.
The Commonwealth then recited the facts underlying the
indictment, mentioning that the crime charged had occurred on
July 4, 1998.
The court then asked Caldwell if he fully
understood and realized that he was waiving his right to remain
silent, to a trial by jury, and to an appeal.
The court told
Caldwell that his plea was accepted and that he was to see the
presentencing officer for an appointment.
On April 1, 1999, Caldwell appeared at his sentencing
hearing.
The court noted that he had not appeared for his
presentence interview.
The court inquired about this failure to
appear and was informed by counsel that Caldwell now wanted to
withdraw his guilty plea.
In response to the court’s
questioning, counsel explained that Caldwell was "confused" when
he entered his plea due to the discussion and setting for trial
of a second case contemporaneously with his plea agreement.
Although his counsel had attempted to explain and sort out the
different aspects of the cases at the time of the plea, Caldwell
failed to appreciate or to understand what was transpiring.
Counsel also noted that Caldwell had entered the plea against his
advice.
On the morning of the April 1, 1999, hearing and also
several days earlier, Caldwell told his lawyer that he wished to
withdraw his plea.
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The court then questioned Caldwell directly as to what
he did not understand.
Caldwell responded that he had been
confused about the court dates and that things “didn’t come out
how the plea was supposed to have been.”
The court refused to
allow him to withdraw his plea and sentenced him to five years to
be served in the penitentiary.
Caldwell argues on appeal that the trial court erred in
refusing to allow him to withdraw his guilty plea because he did
not enter it knowingly or intelligently due to his confusion over
the second pending charge.
In order to be valid, a guilty plea must represent a
voluntary and intelligent choice among the alternative courses
open to the defendant.
North Carolina v. Alford, 400 U.S. 25,
31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970).
There must be an
affirmative showing in the record that the plea was knowingly and
voluntarily made.
Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct.
1709, 1711, 23 L.Ed.2d 274 (1969).
Finally, the validity of a
guilty plea is determined not by reference to some magical
incantation recited at the time it is taken but from the totality
of the circumstances surrounding it.
Brady v. United States, 397
U.S. 742, 749, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970).
When considering the acceptance of a guilty plea, it is
“plain error on the face of the record, for the trial judge to
accept [a defendant’s] guilty plea without an affirmative showing
that it was intelligent and voluntary.”
Boykin at 242. To avoid
plain error, the trial judge cannot accept a guilty plea tainted
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by ignorance or incomprehension -- both of which appear to be
involved in this case.
On the day that Caldwell entered his guilty plea, the
Commonwealth, the trial judge, and his counsel were having some
difficulty keeping his two cases straight.
Although they had
occurred on two different dates, both charges involved drug
trafficking.
Additionally, Caldwell and his counsel were both
confused about the details of the offer that was made.
His
counsel made it apparent — both by his statements and by the
striking of language on the plea sheet —
reduced charge to be offered.
that he had expected a
Caldwell may well have been
ignorant of the specific charge as to which he was entering a
guilty plea.
Alternatively, he may not have been able to
distinguish whether the charge to which he entered his guilty
plea was the first or second drug trafficking charge.
With this
apparent confusion in the record, we are not satisfied that this
guilty plea was knowingly and voluntarily made in compliance with
the constitutional safeguards announced in Boykin.
We are also directed to RCr. 8.10, the rule governing
withdrawal of a guilty plea:
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.
If the court rejects the plea agreement, the
court shall, on the record, inform the
parties of this fact, advise the defendant
personally in open court, or on a showing of
good cause, in camera, that the court is not
bound by the plea agreement, afford the
defendant the opportunity to then withdraw
the plea, and advise the defendant that if
the defendant persists in that guilty plea
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the disposition of the case may be less
favorable to the defendant than that
contemplated by the plea agreement. (Emphasis
added.)
The rule is essentially discretionary with the court as to
withdrawal of a guilty plea before entry of judgment.
However,
the 1989 amendment to the rule mandates that an appellant be
informed if a court elects to deviate from the plea agreement and
that he be allowed to withdraw his guilty plea.
Case law has
reinforced that mandatory interpretation of RCr 8.10.
Commonwealth, Ky., 938 S.W.2d 243 (1996).
Haight v.
More recently, we
stated in Kennedy v. Commonwealth, Ky. App., 962 S.W.2d 880, 882
(1997):
The language of RCr 8.10 is clearly mandatory
and requires a court to permit a defendant to
withdraw a guilty plea if the court rejects
the plea agreement . . . . It is not the
function of this court upon review to secondguess the wisdom of permitting the plea
bargaining process. . . . It is an exchange
that the rule regulates, however, with one
clear proviso: that in the event that the
negotiated deal is rejected by the court, the
defendant is guaranteed the right to withdraw
his plea and to proceed to trial and be
afforded due process of law.
The confusion in this case extends to whether or not
the court or the Commonwealth had deviated from the initial plea
agreement.
The language on the plea sheet contained strikes and
alterations.
An abundance of caution would indicate that under
the questionable circumstances of this case, both Haight and
Kennedy support a withdrawal of the guilty plea by Caldwell.
This outcome results in no prejudice to society and
does not amount to any sort of automatic acquittal of a criminal
defendant.
As the court held, “Society cannot be harmed by
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withdrawal of the plea by a defendant as he is not set free but
instead must proceed to run the gauntlet of a trial with the
attendant risk of the maximum punishment prescribed by statute.”
Kennedy, supra.
For the foregoing reasons, we vacate the judgment of
the McCracken Circuit Court and remand the case with directions
that the appellant be permitted to withdraw his guilty plea and
proceed on to trial on the original charge.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kim Brooks
Covington, KY 41011
Albert B. Chandler III
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, KY
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