THURMAN BALL v. COMMONWEALTH OF KENTUCKY
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RENDERED: AUGUST 9, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001530-MR
THURMAN BALL
APPELLANT
APPEAL FROM ROWAN CIRCUIT COURT
HONORABLE WILLIAM B. MAINS, JUDGE
ACTION NO. 00-CR-00053
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, McANULTY AND TACKETT, JUDGES.
GUIDUGLI, JUDGE.
Thurman Ball, Jr., (hereinafter “Ball”) has
appealed from the Rowan Circuit Court’s June 19, 2001, Judgment
and Sentence on a plea of guilty, and from the June 29, 2001,
order denying his motion to withdraw his guilty plea.
Having
considered the parties’ briefs, the record, and the applicable
case law, we affirm.
On July 21, 2000, the grand jury indicted Ball for
Assault, Second-Degree.
He waived a formal arraignment and
entered a plea of not guilty on August 23, 2000.
On April 20,
2001, while represented by his third attorney, Ball entered a
guilty plea to Assault, Second-Degree, with a recommended
sentence of eight years.
The plea agreement included the
additional term that “upon satisfactory treatment plan probation
would not be opposed at time of sentencing.”
After first
questioning his attorney and then ascertaining that there was
nothing interfering with Ball’s understanding of the proceedings,
the trial court entered into the following colloquy with Ball:
BY THE COURT: Do you understand the nature
and the consequences of the charges which
have been placed against you in this case?
Mr. Ball: Yes.
BY THE COURT: And, have you consulted with
your attorney, Mr. Pillersdorf, about the
entry of your plea of guilty?
Mr. Ball: Yes.
BY THE COURT: Have you had all of the time
necessary to talk to him that you feel is
necessary?
Mr. Ball: Yes.
BY THE COURT: Do you have any complaints at
all about the representation he’s provided
you?
Mr. Ball: No, sir.
BY THE COURT: And, have you read, or gone
over with your attorney the motion to enter a
guilty plea — this document here?
Mr. Ball: Yes, sir.
BY THE COURT: And, you feel that you
understand it?
Mr. Ball: Yes.
BY THE COURT: Is that your signature on the
back?
Mr. Ball: Yes.
BY THE COURT: Do you understand that by
pleading guilty today you’re going to be
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waiving certain constitutional rights to
which you otherwise have?
Mr. Ball: Yes.
BY THE COURT: Do you understand you have the
right to a trial by jury in which you would
be represented by counsel and the
Commonwealth would have to prove your guilt
beyond a reasonable doubt?
Mr. Ball: Yes, sir.
BY THE COURT: Okay, you understand you have
the right to have an attorney appointed to
represent you if you can’t afford one?
Mr. Ball: Yes.
BY THE COURT: You understand you have the
right not to testify against yourself?
Mr. Ball: Yes.
BY THE COURT: You also understand you have
the right to cross examine and confront any
witnesses who might be called to testify?
Mr. Ball: Yes, sir.
BY THE COURT: You understand there’ll be no
appeal to a higher court from the judg[]ment
of this court if you plead guilty?
Mr. Ball: Yes, sir.
BY THE COURT: Now, in this case, specifically
it is alleged that on or about June 15th of
2000, here in Rowan County, that you
committed the offense of Assault Second
Degree when you intentionally caused serious
physical injury to one Charlene Norris by
striking her and fracturing her wrist,
breaking her nose and injuring her eye. Do
you understand that this is the charge
against you?
Mr. Ball: Yes.
BY THE COURT: Do you understand the facts on
which that charge is based, given the
discovery that has been provided to you and
your attorney?
Mr. Ball: Yes.
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BY THE COURT: And, do you desire at this time
to change your plea and enter a plea of
guilty to that charge at this time?
Mr. Ball: Yes.
BY THE COURT: In return for your guilty plea
the Commonwealth has agreed to recommend to
the Court a sentence of eight years
imprisonment. However, the Commonwealth has
also said that upon satisfactory treatment
plan — upon presentation of a satisfactory
treatment plan, probation would not be
opposed at the time of sentencing. Is that
your understanding of the plea agreement?
Mr. Ball: Yes.
BY THE COURT: Do you understand that prior to
final sentencing I’m going to order a presentence investigation report which will
contain information about you, your
background, and your record, and I’ll want to
review that prior to final sentencing?
Mr. Ball: Yes, sir.
. . . .
BY THE COURT: Okay, let me just ask you
again, with regard to this charge, are you
entering your plea of guilty to the charge of
Assault in the Second Degree willingly,
freely, and voluntarily?
Mr. Ball: Yes.
BY THE COURT: Then, let’s let the record
reflect the defendant’s plea has been made
willingly, freely, and voluntarily. The
defendant has made a knowing and intelligent
waiver of his rights. . . . [O]nce you get
that treatment program, get with Mr. Moore.
If they’re in agreement with it, then that
shouldn’t be any problem. If there is a
dispute over it, then make sure I get it in
advance so that I can review it, and we know
where we stand with regard to that. Okay,
that’ll take care of it.
Earlier in the hearing, counsel for Bath indicated that
he would be contacting Pathways for treatment program
information.
The parties and the trial court then discussed
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whether the treatment program would be on an outpatient or an
inpatient basis, and the Commonwealth’s Attorney stated, “We
haven’t made any agreements on that, and I — I’m going to need to
know what Pathways can do.
You know, probably I’m not going to
be satisfied with him showing up every Thursday afternoon to talk
to Mr. Frost, so . . . ”
Following the hearing, Bath filed his
proposed treatment plan in support of his motion for probation,
indicating that he wanted to attend an evening outpatient program
at Pathways for substance abuse treatment.
The Commonwealth
responded, indicating that outpatient counseling would not be
satisfactory in this case due to Ball’s history of violent
responses and significant problems with alcohol.
Instead, the
Commonwealth suggested some initial residential treatment.
On June 19, 2001, the trial court held the sentencing
hearing.
At that time, the trial court first noted that the
victim was not in agreement with the plea agreement and was
opposed to probation.
He then noted that “Mr. Ball was proposing
that any treatment that he were to undergo, if he were to be
granted probation, that it would be on an outpatient basis
through Pathways.
My understanding is that the Commonwealth is
opposed to that program.
The Commonwealth was insisting on an
in-house treatment program.”
Based upon his review of the PSI
and the victim impact statement, the trial court declined to
consider probation because of the seriousness of the crime Ball
committed, the revocation of a previous probation for a reckless
homicide conviction, previous charges involving domestic
violence, disorderly conduct, terroristic threatening, assault
4th, attempted assault 4th, and resisting arrest, as well as
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several unsuccessful attempts at treatment for his alcohol
problem.
The trial court then sentenced Ball to eight years’
imprisonment “in accordance with the plea agreement.”
Under the
circumstances, the trial court stated that probation was not
warranted even though “the Commonwealth said they were not
opposed to a probation with treatment plan.”
The written
judgment and sentence on the plea of guilty was entered
accordingly.
On June 29, 2001, Ball moved the trial court to
withdraw his guilty plea and his attorney moved to withdraw as
counsel.
The same day, the trial court granted the motion to
withdraw as counsel.
However, the trial court denied the motion
to withdraw the guilty plea after reviewing the transcript,
reasoning that his plea was made willingly, freely and
voluntarily, and with full knowledge of his rights.
Additionally, probation was never guaranteed, and was not
warranted in light of his record.
This appeal followed.
In his brief, Ball relies upon RCr 8.10 and asserts
that the trial court abused its discretion in refusing to allow
him to withdraw his guilty plea when it did not afford him the
opportunity to withdraw his plea when it deviated from the
Commonwealth’s recommendation.
At the guilty plea hearing, Ball
asserts that the trial court did not specifically inform him that
the decision as to whether probation should be granted was solely
within its discretion, or that if it chose to reject the plea
agreement, he must be given the choice to either persist in his
plea or withdraw it and proceed to trial.
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The trial court’s
failure to do so rendered Ball’s plea a nullity because it was no
longer voluntarily, intelligently, or knowingly entered.
On the other hand, the Commonwealth argues that RCr
8.10 does not apply because Ball did not move to withdraw his
plea until ten days after the judgment was entered.
Therefore,
the trial court should only allow Ball to withdraw his plea if it
was unwillingly entered under fear, deceit or coercion.
Additionally, the Commonwealth points out that the trial court
did not reject the plea agreement, making the second paragraph of
RCr 8.10 inapplicable in this case.
Ball did not submit a
satisfactory treatment plan, meaning that the Commonwealth was
under no obligation not to oppose probation at sentencing.
Lastly, there was no agreement that Ball would be probated even
if he had submitted an acceptable treatment program.
The applicable standard of review in an appeal from the
denial of a motion to withdraw a guilty plea is abuse of
discretion.
(1960),
In Hurt v. Commonwealth, Ky., 333 S.W.2d 951, 952
the former Court of Appeals stated that “[t]he
withdrawal before judgment of a guilty plea and substitution of a
plea of not guilty is a matter within the sound discretion of the
trial court. . . .” (emphasis added).
See also, Anderson v.
Commonwealth, Ky., 507 S.W.2d 187 (1974).
Subsequently, the
court further defined the standard of review in instances where
the motion to withdraw the guilty plea came after the judgment
was entered.
Citing Kidd v. Commonwealth, 255 Ky. 498, 74 S.W.2d
944 (1934), the court held that “the trial court should not
‘exercise its judicial discretion by allowing the withdrawal of
the plea after sentencing, unless it appears that the accused’s
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consent to plead guilty was unwillingly given and made under the
circumstances of fear, deceit, or coercion.’”
Allee v.
Commonwealth, Ky., 454 S.W.2d 336, 341 (1970).
v. Commonwealth, Ky., 479 S.W.2d 643 (1972).
See also, Blair
Therefore, the
trial court’s decision to deny Ball’s motion to withdraw his
guilty plea after sentencing will be upheld unless Ball can
establish that the trial court abused its discretion in denying
the motion because his guilty plea was unwillingly given due to
fear, deceit or coercion.
Pursuant to RCr 8.08, a trial court may accept a plea
of guilty after it determines that “the plea is made voluntarily
with understanding of the nature of the charge.”
Here, the trial
court entered into the necessary colloquy with both Ball and his
attorney, and determined that Ball understood the charges against
him, that he understood the terms of the plea agreement, and that
his plea was given freely, voluntarily, and willingly.
The
necessary safeguards were followed pursuant to Boykin v. Alabama,
395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
Pursuant to 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.
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
the disposition of the case may be less
favorable to the defendant than that
contemplated by the plea agreement.
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The court can defer accepting or
rejecting the plea agreement until there has
been an opportunity to consider the
presentence report.
Ball relies on the second paragraph of RCr 8.10 to assert that
the trial court did not follow the proper procedures in the
guilty plea proceedings.
However, the Commonwealth correctly
points out that Ball moved the trial court to withdraw his guilty
plea only after the judgment had been entered.
The rule only
addresses situations where the motion to withdraw the guilty plea
is made prior to the entry of the judgment.
Regardless, the
trial court did not reject the plea agreement.
Indeed, the trial
court sentenced Ball to eight years “in accordance with the plea
agreement.”
The granting of probation was not a term of the plea
agreement; the Commonwealth merely agreed that it would not
oppose probation if an acceptable treatment plan were filed.
Ball did not even comply with his end of the bargain as he
proposed an outpatient treatment plan when the Commonwealth was
clearly opposed to that type of plan.
Therefore, the trial court
was not required to comply with the second paragraph of RCr 8.10
and afford Ball the opportunity to withdraw his guilty plea.
The trial court and Ball’s attorney ensured that his
rights were adequately protected at the guilty plea hearing, and
the trial court ascertained that his guilty plea was knowingly,
freely, willingly, and voluntarily entered.
entered under fear, deceit or coercion.
The plea was not
It is clear that the
only reason Ball wanted to withdraw his guilty plea is because
the trial court denied his motion for probation.
Neither fear,
deceit, nor coercion was involved in Ball’s decision to plead
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guilty.
The Commonwealth did not recommend probation in the plea
agreement, but merely agreed not to oppose it if Ball met the
named condition.
Even though Ball did not meet that condition,
the Commonwealth still did not formally object to probation at
sentencing.
The trial court did not abuse its discretion in denying
Ball’s motion to withdraw his guilty plea after sentencing.
The judgment and order of the Rowan Circuit Court are
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael J. Curtis
Ashland, KY
A. B. Chandler, III
Attorney General
Kent T. Young
Assistant Attorney General
Frankfort, KY
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