SAMUEL ADKINS v. COMMONWEALTH OF KENTUCKY
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RENDERED: NOVEMBER 27, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001625-MR
SAMUEL ADKINS
APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE LEONARD L. KOPOWSKI, JUDGE
ACTION NO. 00-CR-00402
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, HUDDLESTON AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Samuel Adkins has appealed from a judgment and
sentence on plea of guilty entered by the Campbell Circuit Court
on July 25, 2001, which sentenced him to a probated term of five
years on a plea of guilty to arson in the third degree.1
Having
concluded that Adkins has not shown a constitutional violation by
the Commonwealth for failure to disclose exculpatory information,
and that the trial court did not abuse its discretion by denying
his motion to withdraw his guilty plea, we affirm.
1
Kentucky Revised Statutes (KRS) 513.040.
On September 9, 2000, the police were notified of a
burning pickup truck on Vine Street in Dayton, Kentucky.
On
October 17, 2000, Adkins was arrested on a warrant issued on a
charge of arson in the second degree.2
On December 28, 2000, a
Campbell County grand jury indicted Adkins for arson in the
second degree for “starting a fire with the intent to destroy or
damage an automobile owned by Daniel Sparks.”
On April 17, 2001,
Adkins entered a plea of guilty to the amended charge of arson in
the third degree pursuant to a plea agreement with the
Commonwealth, which recommended a sentence of five years to be
probated for five years, with 90 days to serve, restitution, and
a $1,000.00 fine.
Adkins has alleged that on July 17, 2001, at his
sentencing hearing that he learned for the first time that Daniel
Sparks did not own the pickup truck that burned but that Sparks
had been driving the truck with the consent of the owner.
Adkins
claims that at his sentencing hearing he orally moved the trial
court to allow him to withdraw his guilty plea based on this new
information concerning the ownership of the truck.
The trial
court denied the motion and sentenced Adkins in accordance with
the plea agreement.
This appeal followed.
Adkins claims the trial court abused its discretion by
failing to allow him to withdraw his guilty plea at the
sentencing hearing.
He contends that his motion to withdraw his
guilty plea should have been granted because the validity of his
plea was compromised by the inaccurate information concerning the
2
KRS 513.030.
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legal owner of the pickup truck.
Adkins asserts that the
Commonwealth’s failure to provide him with the identity of the
actual legal title owner of the truck violated his right to due
process under the Fourteenth Amendment to the United States
Constitution as recognized in Brady v. Maryland.3
He maintains
that the fact that Sparks did not own the truck but instead was
merely borrowing it was material information because it damaged
Spark’s credibility as a potential witness and weakened the
Commonwealth’s case.
Adkins alleges that during plea
negotiations, the Commonwealth indicated that Sparks was the
owner of the truck and that he had no reason to doubt the
prosecutor’s representations.4
He also asserts that because he
was under the impression that Sparks was the victim of the
offense, his guilty plea was not entered knowingly,
intelligently, and voluntarily as required by Boykin v. Alabama.5
Generally, unless a trial court fails to follow the
sentence recommended by the Commonwealth after accepting a guilty
plea, the defendant does not have an absolute right to withdraw
his guilty plea.6
Absent rejection of the recommended sentence,
a trial court has discretion whether to allow a defendant to
3
373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
4
Adkins notes that the indictment named Daniel Sparks as the
victim of the offense.
5
395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
6
See generally Haight v. Commonwealth, Ky., 938 S.W.2d 243
(1996); Kennedy v. Commonwealth, Ky.App., 962 S.W.2d 880 (1997);
and Kentucky Rules of Criminal Procedure (RCr) 8.10.
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withdraw his guilty plea prior to final judgment.7
While the
ultimate decision on withdrawal is reviewed for abuse of
discretion, the determination of whether evidence is material in
the context of a Brady violation is a mixed question of law and
fact subject to independent examination of the record by the
reviewing court.8
The defendant bears the burden of proving
materiality for a Brady challenge.9
“[S]uppression by the prosecution of evidence favorable
to an accused upon request violates due process where the
evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the
prosecution.”10
The duty to disclose favorable or exculpatory
evidence has been extended to include, in addition to evidence of
guilt, evidence affecting a witness’s credibility where the
7
See supra note 6; Brock v. Commonwealth, Ky., 58 S.W.3d
482, 486 (2001); Couch v. Commonwealth, Ky., 528 S.W.2d 712
(1975); and Anderson v. Commonwealth, Ky., 507 S.W.2d 187 (1974).
8
See United States v. Payne, 63 F.3d 1200, 1208 (2d Cir.
1995); Williams v. Coyle, 260 F.3d 684, 706 (6th Cir. 2001),
cert. denied ___ U.S. ___, 122 S.Ct. 2635, 153 L.Ed.2d 816
(2002); and Trevino v. Johnson, 168 F.3d 173, 184 (5th Cir.
1999), cert. denied, 527 U.S. 1056, 120 S.Ct. 22, 144 L.Ed.2d 825
(1999).
9
See Carter v. Bell, 218 F.3d 581 (6th Cir. 2000); Martin v.
Cain, 246 F.3d 471, 476-77 (5th Cir. 2001), cert. denied, ___
U.S. ___, 122 S.Ct. 194, 151 L.Ed.2d 136 (2001); and Paradis v.
Arave, 240 F.3d 1169, 1176 (9th Cir. 2001).
10
Brady, 373 U.S. at 87.
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witness’s reliability is likely to be “determinative of guilt.”11
In order to establish a Brady violation, a defendant
has the burden of establishing that (1) the prosecutor suppressed
evidence; (2) the evidence was favorable to the defendant as
exculpatory or impeachment; and (3) the evidence was material.12
“[E]vidence is material only if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different.
A ‘reasonable
probability’ is a probability sufficient to undermine confidence
in the outcome.”13
Suppression of evidence within the context of
the Brady doctrine involves evidence in the possession of the
prosecution or of which it is aware.14
“[T]here is no Brady
violation if the defendant knew or should have known the
essential facts permitting him to take advantage of the
11
Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763,
766, 31 L.Ed.2d 104 (1972); United States v. Bagley, 473 U.S.
667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); Hodge v..
Commonwealth, Ky., 17 S.W.3d 824, 844 (1999).
12
Moore v. Illinois, 408 U.S. 786, 794-95, 92 S.Ct. 2562,
2568, 33 L.Ed.2d 706 (1972); Strickler v. Greene, 527 U.S. 263,
281-82, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999); Carter v.
Bell, 218 F.3d 581, 601 (6th Cir. 2000).
13
Bagley, 473 U.S. at 682. See also, Kyles v. Whitley, 514
U.S. 419, 433-38, 115 S.Ct. 1555, 1565-68, 131 L.Ed.2d 490
(1995); and Jamison v. Collins, 291 F.3d 380 (6th Cir. 2002).
The Brady materiality standard parallels the prejudice standard
of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). See id. at 694; Byrd v. Collins, 209 F.3d
486, 549 (6th Cir. 2000).
14
See Sanchez v. United States, 50 F.3d 1448, 1453 (9th Cir.
1995); and Taylor v. Commonwealth, Ky., 63 S.W.3d 151, 158
(2001).
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information in question, or if the information was available to
him from another source.”15
Although Brady and its progeny dealt with the right to
disclosure in order to facilitate a fair trial and defined
materiality in terms of the effect on a jury verdict, a number of
courts have applied the Brady doctrine to guilty pleas.16
These
courts have reformulated the materiality standard in line with
the different characteristics of a guilty plea vis-a-vis a jury
trial.
In the context of an attack on a guilty plea, evidence is
considered material where “‘there is a reasonable probability
that but for the failure to produce such information the
defendant would not have entered the plea but instead would have
insisted on going to trial.’”17
Determination of this issue is
based on an objective analysis not what the particular defendant
would do but what is the likely persuasiveness of the withheld
15
Carter, supra at 601; United States v. Mullins, 22 F.3d
1365, 1371 (6th Cir. 1994); Sanborn v. Commonwealth, Ky., 892
S.W.2d 542 (1994), cert. denied, 516 U.S. 854, 116 S.Ct. 154, 133
L.Ed.2d 98 (1995); Taylor, supra. See also Collier v. Davis, 301
F.3d 843, 850 (7th Cir. 2002)(suppression involves government’s
failure to disclose known evidence before it is too late for
defendant to make use of it and lack of availability of the
evidence through exercise of reasonable diligence).
16
See, e.g., United
Cir. 1998); Campbell v.
White v. United States,
supra; United States v.
States v. Avellino, 136 F.3d 249 (2d
Marshall, 769 F.2d 314 (6th Cir. 1985);
858 F.2d 416 (8th Cir. 1988); Sanchez,
Walters, 269 F.3d 1207 (10th Cir. 2001).
17
Avellino, supra at 256 (quoting Tate v. Wood, 963 F.2d 20,
24 (2d Cir. 1992)); Walters, supra at 1214; Sanchez, supra at
1454. Cf. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370,
88 L. Ed.2d 203 (1985)(stating prejudice for ineffective
assistance of counsel claim in guilty plea context is whether
there is reasonable probability that but for counsel’s errors, he
would not have pleaded guilty and would have insisted on going to
trial).
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information.18
However, in Matthew v. Johnson,19 the Court held
that the rationale of the Brady doctrine does not extend to the
guilty plea situation.
The Court stated that “[b]ecause a Brady
violation is defined in terms of the potential effects of
undisclosed information on a judge’s or jury’s assessment of
guilt, it follows that the failure of a prosecutor to disclose
exculpatory information to an individual waiving his right to
trial is not a constitutional violation.”20
The recent case of United States v. Ruiz,21 calls into
question the application of the Brady doctrine in the context of
guilty pleas.
In a unanimous decision, the United States Supreme
Court held that the United States Constitution did not require
the government to disclose impeachment evidence and evidence
regarding an affirmative defense prior to entry of a guilty
plea.22
Ruiz involved the validity of the federal government’s
policy of requiring a defendant to waive the right to receive
impeachment information and information supporting any
affirmative defenses as a part of a plea agreement.
In an
analysis similar to that of the court in Matthew, the Supreme
Court stated that the Brady doctrine was based on the right to a
fair trial.
18
It noted that a guilty plea constitutes a waiver of
Avellino, supra at 256.
19
201 F.3d 353 (5th Cir. 2000), cert. denied, 531 U.S. 830,
121 S.Ct. 291, 148 L.Ed.2d 44 (2000).
20
21
22
Id. at 362.
U.S.
, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002).
Id. 122 S.Ct. at 2457.
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several constitutional rights that must be made knowingly,
intelligently, and with sufficient awareness of the relevant
circumstances and likely consequences.23
The Supreme Court
recognized that the Constitution does not require the prosecution
to share all useful information with the defendant, and that
constitutional rights may be waived knowingly, intelligently, and
with sufficient awareness by a defendant with only a general
knowledge of the circumstances, rather than specific detailed
knowledge of the consequences.24
It said that impeachment
information and affirmative defense evidence were not so critical
that a defendant’s guilty plea would not be knowing, intelligent,
and voluntary without disclosure prior to the plea.
It opined
that the due process considerations underlying the right to
exculpatory and impeachment information militate against
extending the right to disclosure in the guilty plea situation.25
First, Adkins has not shown a Brady violation, since
the information on the legal owner was not suppressed.
Information on the legal owner of the truck was readily available
to Adkins as a public record and through access to Sparks
directly.
Thus, Brady does not apply since the prosecution did
not suppress this information and since Adkins could have known
of the information by the exercise of reasonable diligence.
23
Id. 122 S.Ct. at 2455 (citing Brady, 397 U.S. at 748 and
Boykin, supra).
24
Id.
25
Id. 122 S.Ct. at 2456-57. The due process considerations
include: (1) the nature of the private interest at stake; (2)
the value of the additional safeguard; and (3) the adverse impact
of the requirement upon the government’s interest.
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Second, given the decision in Ruiz, it is questionable
whether Adkins has a cognizable claim for any alleged Brady
violation.
Adkins asserts that the information that Sparks did
not own the truck was material because it damaged Sparks’s
credibility and “given the fact that the vehicle was being
borrowed, it is possible that Mr. Sparks could himself be a
suspect.”
Clearly, Adkins’s claim that his guilty plea was
rendered invalid by the prosecution’s failure to disclose
impeachment information is precluded by the Ruiz decision.
Additionally, to the extent that the information involved an
affirmative defense, it was not required to be disclosed.
In
order to establish arson in the third degree, the Commonwealth
must prove that the defendant “wantonly cause[d] destruction or
damage to a building26 of his own or of another by intentionally
starting a fire or causing an explosion.”27
It is an affirmative
defense to the offense if “no person other than the defendant had
a possessory or proprietary interest in the building, or, if
other persons had such an interest, all of them consented to
defendant’s conduct.”28
Thus, identity of the legal owner is not
an element of the offense but only goes to the affirmative
26
For purposes of the arson statutes, “building” includes an
automobile, truck, or other vehicle. See KRS 513.010.
27
KRS 513.040(1). Similarly, a person is guilty of arson in
the second degree “when he starts a fire or causes an explosion
with intent to destroy or damage a building: (a) Of another; or
(b) Of his own or of another, to collect or facilitate the
collection of insurance proceeds for such loss.” KRS 514.030.
28
KRS 513.040(2).
See also KRS 514.030(2).
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defense, which is not subject to required disclosure under
Ruiz.29
The exact scope of the Ruiz decision, however, is not
entirely clear.
While the Supreme Court explicitly held that
impeachment information and information supporting any
affirmative defense need not be disclosed prior to a guilty plea,
it did not discuss direct exculpatory evidence perhaps because
under the plea offer involved, the government agreed to disclose
any known information establishing the factual innocence of the
defendant.
Therefore,
Ruiz arguably would not preclude Adkins’s
claim that the information was subject to disclosure as direct
exculpatory evidence that Sparks committed the crime.
Nevertheless, even assuming direct exculpatory evidence
of guilt falls within the Brady doctrine, Adkins’s claim must
fail because it was not material under the standard delineated by
the cases prior to Ruiz.
As discussed above, identity of the
legal owner is not an element of arson in the third degree.
Adkins fails to explain how the fact that Sparks had borrowed the
truck and was not in fact the legal owner implicates him as a
suspect in the arson.
The record indicates that Sparks’s father
was the legal owner but that Sparks exercised primary use and
control of the truck.
Adkins has not demonstrated that the
information concerning the true legal owner of the truck would
29
Adkins does not dispute the fact that the truck was owned
by someone other than himself, or claim that the legal owner
consented to the burning of the truck. The fact that Sparks was
named as the victim in the indictment is inconsequential. See
also Short v. Commonwealth, 291 Ky. 604, 165 S.W.2d 177
(1942)(finding variance as to ownership between indictment and
true legal owner was not prejudicial).
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have had a significant impact on the possible outcome of a
trial.30
Moreover, under the plea agreement, Adkins received a
five-year probated sentence on the reduced offense of arson in
the third degree while he faced a possible sentence of ten to 20
years on the original charge of arson in the second degree.
Consequently, Adkins has not shown a reasonable probability that
but for the Commonwealth’s failure to produce the information
identifying the legal owner of the truck, he would not have
entered the guilty plea but instead would have insisted on going
to trial.
In conclusion, Adkins has not established a Brady
violation, so the trial court did not abuse its discretion by
denying his motion to withdraw his guilty plea.
For the
foregoing reasons, the judgment of the Campbell Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Darrell A. Cox
Covington, Kentucky
Albert B. Chandler III
Attorney General
Matthew D. Nelson
Assistant Attorney General
Frankfort, Kentucky
30
Cf. United States v. Agurs, 427 U.S. 97, 109, 96 S.Ct.
2392, 2400, 49 L.Ed.2d 342 (1976)(“The mere possibility that an
item of undisclosed information might have helped the defense, or
might have affected the outcome of the trial does not establish
‘materiality’ in the constitutional sense.”).
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