DONNIE LEWIS RICHARDSON v. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 30, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
MODIFIED:
AUGUST 20, 2004; 10:00 a.m.
Commonwealth of Kentucky
Court of Appeals
NO. 2003-CA-000165-MR
DONNIE LEWIS RICHARDSON
APPELLANT
APPEAL FROM HART CIRCUIT COURT
LARRY D. RAIKES, JUDGE
INDICTMENT NO. 02-CR-00055
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE:
MINTON, SCHRODER and TAYLOR, Judges.
MINTON, Judge:
The primary issue in this appeal is whether the
circuit court erred in denying Richardson’s motion to withdraw
his
plea
of
guilt
to
unlawful imprisonment.
first-degree
assault
and
first-degree
Because we find no error in the refusal
of the circuit court to allow withdrawal of the plea, we affirm
the judgment in this case.
The charges against Richardson stem from an incident
on June 26, 2002, in which he held his wife at knifepoint inside
a motel room, cutting her several times before she was able to
flee and call police.
Because of the severity of a five and
one-half inch cut on her throat, the victim was hospitalized
having lost as much as 30-35% of her blood volume.
The officer
responding to her call testified at a suppression hearing as to
the severity of the victim’s wounds, the large amount of blood
inside the motel room, and the trail of blood leading from the
motel room to the phone.
On November 12, 2002, Richardson entered into a plea
agreement with the Commonwealth.
In exchange for a guilty plea
to first-degree assault and first-degree unlawful imprisonment,
the Commonwealth would recommend a sentence of 15 years on each
count,
to
be
served
misdemeanor counts.
concurrently,
and
would
dismiss
four
The plea agreement also stated that the
Commonwealth would oppose probation.
The circuit judge conducted a thorough and extensive
colloquy concerning Richardson’s understanding and acceptance of
the plea.
given
During the course of this colloquy, Richardson was
ample
opportunity
to
consult
with
his
attorney
change his mind about giving up the right to trial.
to
the
circuit
judge’s
question
concerning
and
to
In response
Richardson’s
satisfaction with the representation afforded by his attorney,
appellant states “Yes, I am. Very.”
the
circuit
judge’s
questions
Richardson’s responses to
clearly
established
his
understanding of the charges, the rights he was waiving by the
2
entry
of
afforded
a
plea,
by
his
counsel,
satisfaction
and
the
with
voluntary
the
representation
nature
of
his
plea.
Accordingly, the circuit judge accepted the plea as knowingly
and voluntarily entered and scheduled sentencing for January 7,
2003.
On
the
day
set
for
sentencing,
however,
Richardson
told the circuit judge that he wanted to withdraw his plea and
be
appointed
Richardson
a
that
different
he
was
public
not
defender.
entitled
to
After
counsel
of
informing
his
own
choosing, the circuit judge nevertheless continued the matter to
allow
Richardson
time
to
file
a
written
motion.
With
the
assistance of his appointed counsel, Richardson filed a motion
to
withdraw
the
plea
based
upon
allegations
that
he
felt
pressured by time constraints to accept the plea; that counsel
had
been
unavailable
November 9,
2002;
that
to
discuss
counsel
the
had
plea
failed
on
to
Saturday,
advise
the
prosecutor of information that would have led to a lesser offer;
and that he needed a different public defender because he had
“lost confidence” in his current counsel.
In response to this motion, the Commonwealth argued
that Richardson had originally rejected the offer at a pre-trial
conference
counsel
conducted
had
advised
on
Friday,
the
November
prosecutor
by
8,
2002,
fax
on
but
that
Sunday,
November 10, 2002, of Richardson’s decision to accept the offer.
3
The Commonwealth also contended that the colloquy reflected the
knowing,
intelligent,
and
action.
Richardson’s
counsel
from
case
the
asserting
voluntary
a
nature
subsequently
conflict
of
of
Richardson’s
moved
to
interest
withdraw
because,
if
called upon, she would be forced to verify that she had visited
Richardson
at
the
jail
on
Sunday,
November
10,
and
that
he
informed her that he wished to accept the Commonwealth’s offer.
The circuit judge subsequently conducted a hearing on
these post-plea motions at which he noted that Richardson was
not
a
“newcomer”
to
the
criminal
justice
system
as
he
had
previously been convicted of murder and assault in the second
degree.
As the Commonwealth asserts in its brief, Richardson’s
extensive
record
includes
a
1975
murder
conviction,
an
additional homicide conviction in 1985, a second-degree assault
conviction
in
1986,
as
well
as
domestic violence convictions.
several
misdemeanor
assault/
Furthermore, the circuit judge
considered the fact that Richardson had originally rejected the
plea and was afforded every opportunity to change his mind at
the time of the plea colloquy.
decision
to
deny
Richardson’s
The circuit judge’s ultimate
motion
and
sentence
him
in
accordance with the plea agreement precipitated this appeal.
In regard to the decision whether to permit withdrawal
of
a
plea
alleged
to
have
been
4
involuntarily
entered,
the
Supreme Court of Kentucky made clear in Bronk v. Commonwealth1
that
a
proper
exercise
of
the
trial
court’s
discretion
presupposes a consideration of the totality of the circumstances
surrounding
the
plea
and
the
standard
to
be
utilized
in
reviewing its decision:
Evaluating
the
totality
of
the
circumstances surrounding the guilty plea is
an inherently factual inquiry which requires
consideration of “the accused’s demeanor,
background and experience, and whether the
record reveals that the plea was voluntarily
made.” ....
Because of the factual determinations
inherent
in
this
evaluation,
Kentucky
appellate courts have recognized that “the
trial court is in the best position to
determine if there was any reluctance,
misunderstand, involuntariness or incompetence to plead guilty” at the time of the
guilty plea and in a “superior position to
judge
[witnesses’]
credibility
and
the
weight to be given their testimony” at an
evidentiary
hearing.
Accordingly,
this
Court review a trial court’s ruling on a
defendant’s motion to withdraw his guilty
plea
only
for
abuse
of
discretion
by
“ascertain[ing]
whether
the
court
below
acted
erroneously
in
denying
that
appellant’s pleas were made involuntarily.”2
Applying
these
criteria
to
the
circuit
court’s
decision in this case, we have little difficulty upholding his
decision.
A
review
of
the
1
Ky., 58 S.W.3d 482 (2001).
2
record
Id., at 487, footnotes omitted.
5
discloses
the
following
factors
relevant
acceptance
of
to
the
the
decision:
Commonwealth’s
(1)
Richardson’s
offer;
(2)
a
written
comprehensive
colloquy, with ample opportunity afforded to elect to proceed to
trial; (3) Richardson’s previous experience with the criminal
justice system; (4) his statement concerning the level of his
satisfaction with counsel; (5) the fact of his initial rejection
of
the
Commonwealth’s
offer
and
his
subsequent
decision
to
accept it; and (6) counsel’s statement in her motion to withdraw
that she had discussed the plea offer with Richardson before he
appeared in court on November 11, 2002.
Taken as a whole,
these factors can only be construed as supporting the circuit
judge’s
decision
Richardson’s plea.
of
the
injuries
with
regard
to
the
voluntariness
of
Furthermore, in light of the gruesome nature
inflicted
on
the
victim
in
this
case,
the
acceptance of a reasonable plea appears to have been a prudent
decision.
Similarly, with regard to the circuit court’s refusal
to grant Richardson’s motion for a different appointed counsel,
there was no denial of due process.
alleged
in
this
case
has
The “conflict of interest”
nothing
to
do
with
counsel’s
representation of Richardson up to and including the acceptance
of his plea, but relates only to her inability to confirm his
version of the facts concerning his acceptance of the plea.
In
this case, where the record clearly supports the circuit judge’s
6
exercise of discretion, no legitimate basis for the appointment
of substitute counsel can be demonstrated.
The only conflict
between Richardson and his lawyer is his claim that she was
unavailable to discuss the plea on Saturday and her statement
that they did discuss the case on Sunday.
Considered in light
of all the factors evident in the record in this case, there is
not even a remote possibility that appointment of substitute
counsel
would
have
affected
the
withdrawal of the guilty plea.
United
States,3
ineffective
as
to
assistance
what
of
circuit
court’s
decision
on
The analysis set out in Cody v.
kind
of
counsel,
“conflict”
proves
constitutes
instructive
in
resolving Richardson’s claim in this case:
In order to succeed on an actual conflict of
interest theory, Cody must show that his
counsel
(1)
could
have
pursued
some
plausible line of argument at the plea
withdrawal hearing but (2) failed to do so
due to a conflict with counsel’s other
interests or loyalties.
As was the case in Cody, Richardson’s conflict argument cannot
succeed because there was no plausible basis for his claim that
the
plea
was
demonstrate
involuntary.
prejudice
in
Thus,
the
Richardson
denial
of
has
his
failed
motion
to
for
appointment of substitute counsel.
3
249 F.3d 47, 53 (1st Cir. 2001), citing Bucuvalas v. United States,
98 F.3d 652 (1st Cir. 1996).
7
Accordingly, the judgment of the Hart Circuit Court is
in all respects affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kathleen Kallaher Schmidt
Shepherdsville, Kentucky
Gregory D. Stumbo
ATTORNEY GENERAL OF KENTUCKY
Carlton S. Shier, IV
ASSISTANT ATTORNEY GENERAL
Frankfort, Kentucky
8
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