LANNIE PHIPPS v. COMMONWEALTH OF KENTUCKY
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RENDERED:
September 19, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001630-MR
LANNIE PHIPPS
APPELLANT
APPEAL FROM FULTON CIRCUIT COURT
HONORABLE WILLIAM L. SHADOAN, JUDGE
ACTION NO. 02-CR-00008
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, SCHRODER AND TACKETT, JUDGES.
JOHNSON, JUDGE:
Lannie Phipps has directly appealed from a
judgment entered by the Fulton Circuit Court on July 11, 2002,
which sentenced him to six years’ imprisonment on a guilty plea
to complicity to commit theft by unlawful taking of property
over $3001 and bail jumping in the first degree.2
1
Having
Kentucky Revised Statutes (KRS) 502.020 (complicity) and KRS 514.030
(theft).
2
KRS 520.070.
concluded that Phipps waived direct appeal of his guilty plea
and his appeal lacks substantive merit, we affirm.
On January 24, 2002, a Fulton County grand jury
indicted Phipps on one felony count of complicity to commit
theft by unlawful taking of property valued at over $300 in
connection with a robbery of a Pizza Hut restaurant, and one
count of being a persistent felony offender in the second degree
(PFO II).3
On the same day, Phipps was arraigned on the charges,
the trial court released him on a $5,000 (10% cash) bail bond,
and the case was continued to February 28 for a pretrial
conference.
On February 28, 2002, Phipps failed to appear for
the pretrial conference so the trial court issued a bench
warrant for his arrest.
A short time later, Phipps was arrested
in Tennessee, and on March 4, 2002, he waived extradition to
Kentucky and was returned to Fulton County.
On March 14, 2002, Phipps appeared with counsel before
the circuit court.
At that time, the Commonwealth filed a bill
of information charging him with the felony offense of bail
jumping in the first degree.
At the same time, Phipps entered a
plea of guilty to complicity to commit theft by unlawful taking
over $300 and bail jumping in the first degree pursuant to a
plea agreement with the Commonwealth.
Under the plea agreement,
the Commonwealth recommended sentences of five years on theft by
3
KRS 532.080(2).
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unlawful taking and one year on bail jumping, and moved to
dismiss the PFO II count.
The trial court accepted the guilty
plea and withheld final sentencing for four months.
On July 11,
2002, the trial court entered a final judgment and sentence on a
plea of guilty sentencing Phipps to five years for complicity to
commit theft by unlawful taking over $300 and one year for bail
jumping in the first degree, to run consecutively for a total
sentence of six years.
On July 19, 2002, Phipps filed his
notice of appeal.
As an initial matter, we note the somewhat unusual
procedural posture of this appeal, i.e., a direct appeal from a
guilty plea.
A guilty plea constitutes an admission of guilt to
a substantive crime and the waiver of various statutory and
constitutional rights.4
In general, a valid guilty plea waives
all non-jurisdictional defects in the conviction unless they are
preserved for appellate review either by entering a conditional
guilty plea or by moving to withdraw the guilty plea.5
However,
in order to be constitutionally valid, a guilty plea must be
4
See United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927
(1989); Centers v. Commonwealth, Ky.App., 799 S.W.2d 51 (1990); and Taylor v.
Commonwealth, Ky.App., 724 S.W.2d 223 (1986).
5
See, e.g., Rodriguez v. Commonwealth, Ky., 87 S.W.3d 8 (2002); Bronk v.
Commonwealth, Ky., 58 S.W.3d 482 (2001)(direct appeal from denial of a motion
to withdraw guilty plea); Hughes v. Commonwealth, Ky., 875 S.W.2d 99, 100
(1994)(“The general rule is that pleading guilty unconditionally waives all
defenses except that the indictment did not charge an offense.”); and
Kentucky Rules of Criminal Procedure (RCr) 8.09 and 8.10.
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entered voluntarily, knowingly, and intelligently.6
In addition,
RCr 8.08 requires a trial court to determine at the time of the
guilty plea “that the plea is made voluntarily with
understanding of the nature of the charge.”7
The validity of a
guilty plea is determined from the totality of the circumstances
surrounding it.8
A guilty plea is invalid if the defendant does not
understand the nature of the constitutional protections that he
is waiving or if he has such an incomplete understanding of the
charges against him that the plea cannot stand as an admission
of guilt.9
In addition to the general validity of the guilty
plea, the courts have recognized a few issues that are not
waived by even a voluntary, knowing and intelligent plea.
For
example, a defendant may challenge the legality of the sentence
imposed on a guilty plea by way of a direct appeal because that
issue is considered “jurisdictional,” and cannot be waived.10
Similarly, a defendant does not impliedly waive his Sixth
6
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969);
Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973);
Woodall v. Commonwealth, Ky., 63 S.W.3d 104 (2001).
7
See also Bronk, 58 S.W.3d at 486; and Haight v. Commonwealth, Ky., 760
S.W.2d 84, 88 (1988).
8
See Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 25 L.Ed.2d 747
(1970); and Kotas v. Commonwealth, Ky., 565 S.W.2d 445, 447 (1978).
9
James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995).
10
See Hughes, 875 S.W. 2d at 100; Gaither v. Commonwealth, Ky., 963 S.W.2d
621 (1998); Ware v. Commonwealth, Ky.App., 34 S.W.3d 383 (2000); and Sanders
v. Commonwealth, Ky.App., 663 S.W.2d 216 (1983).
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Amendment right to effective assistance of counsel as to claims
of ineffective assistance affecting the validity of the plea.11
In the current case, appellate counsel filed a brief
pursuant to Anders v. California,12 indicating that there are no
colorable issues on appeal.
Phipps was notified of the brief
and given an opportunity to file a supplemental brief, which he
failed to do.
As required by Anders, this Court has conducted
an independent review of the record for possible errors.13
First, we will address the fact that this appeal was
brought as a direct appeal.
As part of his guilty plea, Phipps
signed a motion to enter a guilty plea form that included a
waiver of his right to appeal.
A waiver is defined as the
intentional relinquishment or abandonment of a known right.14
effective waiver generally precludes appellate review.15
An
It is
well established that a defendant may waive his right to appeal
and such a waiver is enforceable if it is agreed to knowingly
11
See, e.g., Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203
(1985); United States v. Cockerham, 237 F.3d 1179 (10th Cir. 2001); and DeRoo
v. United States, 223 F.3d 919 (8th Cir. 2000).
12
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
13
Id.; Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).
14
United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508
(1993)(quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82
L.Ed.2d 1461 (1938)); United States v. Branham, 97 F.3d 835 (6th Cir. 1996).
15
See Branham, 97 F.3d at 842; and United States v. Staples, 202 F.3d 992,
995 (7th Cir. 2000).
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and voluntarily.16
Waiver of a right to appeal does not
absolutely foreclose review because a defendant does not lose
his right to challenge the waiver if it was based on an
impermissible factor (i.e., race), if it was made because of
ineffective assistance of counsel, if the sentence exceeded the
statutory range, or if it would result in a miscarriage of
justice because then it would not have been knowingly and
voluntarily made.17
Although waivers should be strictly
construed, the defendant bears the burden of showing why a
waiver in a plea agreement should not be enforced.18
Courts have
acknowledged the public policy benefits supporting plea
agreements that include an appeal waiver.19
A waiver of
appellate rights is of value to a defendant in obtaining
concessions from the prosecution and benefits the government by
saving it time and money responding to appeals.
“[The] proper
enforcement of appeal waivers serves an important function in
the judicial administrative process by ‘preserving the finality
16
See United States v. Khattak, 273 F.3d 557, 561 (3rd Cir. 2001); United
States v. Jemison, 237 F.3d 911 (7th Cir. 2001); and United States v. Nunez,
223 F.3d 956 (9th Cir. 2000).
17
See, e.g., United States v. Rhodes, 330 F.3d 949, 952 (7th Cir.
2003)(citing Jones v. United States, 167 F.3d 1142, 1144-45 (7th Cir. 1999));
United States v. Elliott, 264 F.3d 1171, 1173 (10th Cir. 2001); and Khattak,
273 F.3d at 562.
18
See United States v. Rubio, 231 F.3d 709, 711 (10th Cir. 2000).
19
See, e.g., United States v. Littlefield, 105 F.3d 527, 530 (9th Cir. 1997);
United States v. Michelsen, 141 F.3d 867 (8th Cir. 1998); United States v.
Rutan, 956 F.2d 827 (8th Cir. 1992); and United States v. Teeter, 257 F.3d 14
(1st Cir. 2001).
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of judgments and sentences imposed pursuant to valid plea
agreements.’”20
Whether a defendant validly waived his right to
appeal is a legal question reviewed de novo.21
In reviewing a waiver of appeal, the court looks to
the circumstances surrounding the entry of the plea agreement to
determine whether the defendant agreed to its terms knowingly
and voluntarily, and to the language of the waiver to determine
its scope.22
The motion to enter guilty plea form signed by
Phipps states:
“I understand that if I plead ‘Guilty’, I waive
these rights.”
The list of rights included:
appeal my case to a higher court.”
“The right to
Phipps does not allege that
he did not knowingly and voluntarily accept the appellate
waiver, that counsel was ineffective in connection with
negotiation of the waiver, that the waiver is otherwise
unlawful, or that any other recognized exception to enforcing
the waiver exists.
In addition, the six-year sentence imposed
by the trial court was within the applicable statutory
sentencing range, so Phipps cannot claim the court was without
authority to impose the sentence.
20
United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996)(quoting Rutan,
956 F.2d at 829).
21
See United States v. Brown, 232 F.3d 399, 402 (4th Cir. 2000); and United
States v. Aguilar-Muniz, 156 F.3d 974, 976 (9th Cir. 1998).
22
United States v. Rhodes, 330 F.3d 949, 952 (7th Cir. 2003); United States
v. Anglin, 215 F.3d 1064, 1066 (9th Cir. 2000); and United States v. Woolley,
123 F.3d 627, 632 (7th Cir. 1977).
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We note that during the sentencing hearing, the trial
judge did tell Phipps that he could appeal the conviction within
30 days.
While this statement may appear inconsistent with
enforcement of a waiver of the right to appeal, an overwhelming
majority of courts have held that such a statement does not
negate the effect of a written waiver of appeal.23
In United
States v. Fleming,24 the Sixth Circuit Court of Appeals held that
a trial court’s notification of a general right to appeal at the
sentencing hearing did not resurrect a defendant’s right to
appeal that was knowingly and voluntarily waived at the guilty
plea hearing.
The court recognized that a trial court has no
authority to unilaterally amend a plea agreement and that
enforcing the waiver was not unjust or would not offend a
defendant’s “reasonable expectations” as to his ability to
appeal.
It stated:
We think, however, that a defendant who is
mistakenly notified of a right to appeal and
suffers confusion as to the status of his
appellate rights suffers a significantly
lesser injury than one who should be
notified of his right to appeal but is not
and consequently forfeits his appellate
rights. A defendant who receives an
extraneous notification suffers, at most,
the dashing of a momentary sense of false
23
See Elliott, 264 F.3d at 1173; United States v. Fisher, 232 F.3d 301 (2d
Cir. 2000); United States v. Michelsen, 141 F.3d 867 (8th Cir. 1998); United
States v. Ogden, 102 F.3d 887 (7th Cir. 1996); and United States v. Melancon,
972 F.2d 566 (5th Cir. 1992). Contra United States v. Buchanan, 59 F.3d 914
(9th Cir. 1995).
24
239 F.3d 761 (6th Cir. 2001).
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hope. In assessing the gravity of this
injury, we consider the fact that the same
defendant, typically with the assistance of
counsel, has evaluated the potential
penalties under a plea agreement as compared
to his prospects at trial, and knowingly and
voluntarily pled guilty to a criminal
offense. Any confusion in regard to
appellate rights after sentencing is easily
clarified by defense counsel.25
This approach is further supported by the fact that Phipps does
not contend that he was misled by the trial court’s statement
concerning an appeal at sentencing.
As a result, we believe
that Phipps waived his right to direct appeal as part of the
plea agreement and his waiver should be enforced to preclude
review in this appeal.
Even if the waiver of appeal was not enforceable,
Phipps’s challenge to his guilty plea is without merit.
The
record reflects that his plea was entered voluntarily,
knowingly, and intelligently.
During the guilty plea hearing,
the trial court explicitly reviewed with Phipps the factual
basis for the plea, the Commonwealth’s burden to prove him
guilty beyond a reasonable doubt, the potential penalties, and
the waiver of his rights to a jury trial, not to testify, and to
confront and cross-examine witnesses.
Phipps verbally
acknowledged that he understood the charges and consequences of
his plea, and that he was entering his plea freely and
25
Id. at 765.
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voluntarily without coercion and duress.
In addition, as
indicated earlier, Phipps signed the written motion to enter a
guilty plea that included his constitutional rights and stated
that his guilty plea was knowingly, intelligently, and
voluntarily entered.26
The trial court also questioned Phipps’s
attorney, who indicated that he had advised Phipps of his
constitutional rights and possible defenses.
Finally, Phipps has not identified any specific
complaints suggesting that he received ineffective assistance of
counsel.
As stated earlier, ineffective assistance of counsel
affecting the validity of the guilty plea may be raised in a
direct appeal of the plea.27
However, given the fact intensive
nature of an ineffective assistance of counsel claim, unless the
record has been developed sufficiently to allow appellate
review, courts generally defer review of such claims for
collateral attacks brought initially in the trial court, which
can conduct additional hearings and develop a more complete
record.28
Failure to raise an ineffective assistance of counsel
claim on direct appeal or failure of an appellate court to
26
See Commonwealth v. Crawford, Ky., 789 S.W.2d 779 (1990).
27
See supra note 12; Rodriguez, 875 S.W.3d at 8; and United States v.
Timbana, 222 F.3d 688 (9th Cir. 2000).
28
See, e.g., United States v. Shabazz, 263 F.3d 603, 612 (6th Cir. 2001);
United States v. Sevick, 234 F.3d 248, 251 (5th Cir. 2000); United States v.
Goodlett, 3 F.3d 976, 980 (6th Cir. 1993); and Humphrey v. Commonwealth, Ky.,
962 S.W.2d 870 (1998).
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review such a claim on direct appeal will not preclude a
defendant from raising that issue in a collateral attack under
the general rule requiring exhaustion of all issues that could
have been raised on direct appeal.29
As a result, our resolution
of this direct appeal would not preclude Phipps from asserting
an ineffective assistance counsel claim in a collateral postjudgment motion such as RCr 11.42.
However, this statement of
the law is not intended in anyway to infer that this Court
believes or does not believe that there is a basis for such a
claim.
For the foregoing reasons, the judgment of the Fulton
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Irvin J. Halbleib
Louisville, Kentucky
Albert B. Chandler III
Attorney General
Rickie L. Pearson
Assistant Attorney General
Frankfort, Kentucky
29
See, e.g., Massaro v. United States, _____ U.S. _____, 123 S.Ct. 1690, 155
L.Ed.2d 714 (2003); United States v. Reyes-Platero, 224 F.3d 1112, 1116-117
(9th Cir. 2000); and United States v. Cothran, 302 F.3d 279, 285 (5th Cir.
2002).
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