LARRY MICHAEL RIGDON II v. COMMONWEALTH OF KENTUCKY
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RENDERED:
August 13, 2004; 2:00 p.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000872-MR
LARRY MICHAEL RIGDON II
APPELLANT
APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE STEPHEN A. HAYDEN, JUDGE
INDICTMENT NO. 02-CR-00147
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, McANULTY, AND MINTON, JUDGES.
MINTON,
JUDGE:
Larry
Michael
Rigdon
II
(Rigdon),
pro
se,
appeals as a matter of right from the judgment of the Henderson
Circuit
Court
sentencing
him
to
a
total
of
three
years’
imprisonment following his guilty plea to one count of receiving
stolen property over $3001 and one count of theft of services
1
Kentucky Revised Statutes (KRS) 514.110.
under $300.2
Rigdon asserts that the circuit court abused its
discretion in denying his motion to withdraw his guilty plea
based on his allegation that it was involuntary because it was
the
product
of
ineffective
assistance
of
counsel.
Having
considered the record, the parties’ briefs, and the applicable
case law, we affirm the judgment of the Henderson Circuit Court.
On
June
20,
2002,
previously-mentioned charges.
he
was
a
second-degree
Rigdon
was
indicted
on
the
The indictment also alleged that
persistent
felony
offender
Rigdon initially entered a not guilty plea.
(PFO).3
On his scheduled
trial date, November 27, 2002, Rigdon filed a motion to enter a
guilty
plea
pursuant
to
a
plea
agreement.
The
Commonwealth
agreed to dismiss the charge of being a second-degree PFO in
exchange
for
Rigdon’s
entering
a
guilty
plea
to
the
two
remaining charges.
The Commonwealth also agreed to recommend
sentences
years
of
three
for
the
receiving
stolen
property
charge and twelve months for the theft of services charge, with
the
sentences
consecutively
previously
to
run
concurrently
with
any
other
been
2
KRS 514.060.
telephone service.
3
ordered
to
with
sentences
serve.4
The
each
other
but
which
Rigdon
had
circuit
court
then
Rigdon was alleged to have diverted long distance
KRS 532.080.
4
Rigdon was already a convicted felon and was incarcerated at
Kentucky State Penitentiary (KSP) at Eddyville at the time.
-2-
conducted a hearing, pursuant to Boykin v. Alabama,5 to determine
whether Rigdon’s guilty plea was entered voluntarily.
Based
upon this hearing, the circuit court made a written finding in
its November 27, 2002, order of adjudication of guilt that “the
defendant’s
guilty
plea
was
knowingly,
competently and voluntarily made.”
understandable
[sic],
Final sentencing was set for
January 13, 2003.
On January 6, 2003, Rigdon filed a pro se motion to
withdraw his guilty plea on the ground that it was involuntary
because it was the result of ineffective assistance of counsel.
Rigdon pointed to a lack of communication with his appointed
attorney,
(DPA).
Greg
Sutton
of
the
Department
of
Public
Advocacy
Rigdon stated that he had only spoken to Sutton twice,
once at arraignment and once two days before his trial date.
He
alleged that Sutton told him upon presenting the plea offer that
he “[could not] do anything for”6 Rigdon at trial and that Rigdon
“[had] no alternative but to plead guilty to the charges.”7
also
stated
that
Sutton
refused
to
properly
He
investigate
potential witnesses even though Rigdon had informed Sutton that
these
witnesses
had
“vital
testimonial
evidence
5
395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
6
Def’s Mot. to Withdraw Guilty Plea at 2.
7
Id.
-3-
in
relevance
[sic] of a [sic] exculpatory nature.”8
Finally, he alleged that
Sutton did not inform him of the options of filing a motion in
limine to exclude certain evidence or of entering a conditional
guilty plea.
No
separate
evidentiary
hearing
was
conducted.
However, at the January 13, 2003, sentencing hearing, Rigdon was
given
the
opportunity
before
sentencing
to
explain
to
the
circuit court why he should be permitted to withdraw his plea
and how he had suffered from ineffective assistance of counsel.
Rigdon
was
Rigdon
stated
arraignment
not
sworn
that
until
he
in
or
subjected
never
November
spoke
25,
to
with
2002,
cross-examination.
Sutton
after
his
days
before
his
two
scheduled trial date, when Rigdon was transported from KSP at
Eddyville to the Henderson County Jail.
Sutton’s office also
refused to accept Rigdon’s collect phone calls.
When Sutton
came to him with the plea offer two days before trial,
Rigdon
said that he felt that he “had no other alternative but to take
a guilty plea” because he did not think that Sutton could have
sufficiently prepared for trial in two days.
that
Sutton
never
explained
to
him
the
He also stated
options
of
filing
motion in limine or entering a conditional guilty plea.
did
not
8
identify
what
evidence
Id.
-4-
he
believed
could
a
Rigdon
have
been
excluded by a motion in limine or the basis for its exclusion.
Similarly,
he
guilty plea.
counsel
failed
never
identified
the
basis
for
a
conditional
He did not address his earlier allegations that
to
investigate
witnesses
identified
as
having
Sutton also spoke at the sentencing hearing.
Like
exculpatory evidence.
Rigdon, he was not sworn in or subjected to cross-examination.
He conceded that he did not speak to Rigdon in between Rigdon’s
arraignment and the day when he approached Rigdon with the plea
offer, two days before Rigdon’s scheduled trial date.
Sutton
said that he was unable to travel to Eddyville where Rigdon was
incarcerated at KSP because of his workload.
He also admitted
that his office’s policy, consistent with cost-saving measures
advocated by DPA, was to refuse to accept collect phone calls
except in extraordinary circumstances.
that
he
would
have
been
sufficiently
However, Sutton asserted
prepared
Rigdon had wanted to proceed with a trial.
for
trial
if
He noted that he had
obtained all necessary discovery, and a DPA investigator had
investigated the case.
He stated that this investigator could
have located the appropriate witnesses for trial if necessary.
Sutton observed, “I’ve prepared for trial in a lot less time
than two days.”
would
have.”
He concluded, “If we’d needed to go to trial we
Sutton
did
not
address
claims.
-5-
any
of
Rigdon’s
other
In its order, entered January 27, 2003, the circuit
court summarily denied Rigdon’s motion to withdraw his guilty
plea in a one-sentence order.
no
finding
with
plea
was
entered voluntarily under the totality of the circumstances.
On
January
of
28,
conviction
respect
2003,
and
the
to
Notably, the circuit court made
whether
circuit
sentence,
Rigdon’s
court
sentencing
entered
Rigdon
Commonwealth’s recommendation noted above.
order
circuit
court
attorney,
brevity
denying
recounted
Sutton,
of
Rigdon’s
at
the
attorney-client
the
motion
for
testimony
sentencing
a
according
to
the
In its April 15,
reconsideration,
the
of
and
his
regarding
the
Rigdon
hearing
communication.
judgment
Rigdon then filed a
timely pro se motion for reconsideration.
2003,
guilty
The
circuit
court
also described Rigdon’s statements made in the plea colloquy as
follows:
Under the court’s questioning during the
guilty plea colloquy, Rigdon testified that
he had all the time he wished to consult
with his attorney.
Rigdon also stated that
he
was
fully
satisfied
with
what
his
attorney had done for him, and that he had
no
complaints
about
his
attorney’s
performance.
Rigdon
stated
that
he
understood he had the right to go to trial
if he so chose and that Sutton had made it
clear that if he did wish to go to trial,
Sutton would represent him at trial to the
best
of
his
ability.
Rigdon
also
specifically assured the court that his
guilty plea was “made freely and voluntarily
and because [he was] in fact guilty of the
charges contained in the indictment.”
-6-
This testimony, as a whole, indicates
that the guilty plea was made intelligently
and voluntarily.9
Based on the foregoing, the circuit court denied Rigdon’s motion
to
reconsider
its
order
denying
his
motion
to
withdraw
his
guilty plea.
When a criminal defendant pleads guilty, Rule 8.10 of
the
Kentucky
Rules
of
Criminal
Procedure
(RCr)
requires
the
trial court receiving the guilty plea to determine on the record
whether the defendant is voluntarily pleading guilty.10
Whether
a guilty plea is voluntarily given is to be determined from the
totality of the circumstances surrounding it.11
is
in
the
best
circumstances
position
surrounding
to
a
determine
guilty
the
plea.12
The trial court
totality
Once
a
of
the
criminal
defendant has pleaded guilty, he may move the trial court to
withdraw the guilty plea, pursuant to RCr 8.10.
involuntary,
the
motion
to
withdraw
it
If the plea was
must
be
granted.13
However, if it was voluntary, the trial court may, within its
discretion, either grant or deny the motion.14
Whether to deny a
9
Order of 4/15/03 at 2-3 (alteration in original).
10
Bronk v. Commonwealth, Ky., 58 S.W.3d 482, 486 (2001).
11
Id.
12
Id.
13
Rodriguez v. Commonwealth, Ky., 87 S.W.3d 8, 10 (2002).
14
Id.
-7-
motion to withdraw a guilty plea based on a claim of ineffective
assistance of counsel first requires “a factual inquiry into the
circumstances
whether
it
surrounding
was
the
voluntarily
plea,
primarily
entered.”15
to
The
ascertain
trial
court’s
determination on whether the plea was voluntarily entered is
reviewed
which
under
is
the
clearly
supported
erroneous.17
by
standard.16
erroneous
substantial
evidence
is
A
decision
not
clearly
If, however, the trial court determines that the
guilty plea was entered voluntarily, then it may grant or deny
the
motion
to
withdraw
the
plea
at
its
discretion.
This
decision is reviewed under the abuse of discretion standard.18
A
trial court abuses its discretion when it renders a decision
which
is
arbitrary,
unreasonable,
unfair,
or
unsupported
by
legal principles.19
A criminal defendant may demonstrate that his guilty
plea
was
involuntary
by
showing
that
it
was
the
result
15
Bronk, 58 S.W.3d at 489 (Cooper, J., concurring).
16
Id.
17
Baltimore v. Commonwealth, Ky.App., 119 S.W.3d 532, 539 (2003).
18
of
Bronk, 58 S.W.3d at 487.
19
Goodyear Tire and Rubber Co. v. Thompson, Ky., 11 S.W.3d 575, 581
(2000).
Cf. Kennedy v. Commonwealth, Ky.App., 962 S.W.2d 880, 882
(1997) (holding that “fair play and honesty” as well as RCr 8.10,
require a trial court to permit a defendant to withdraw his guilty
plea, despite the fact that it was made knowingly, voluntarily, and
intelligently as part of a plea agreement, where the trial court
subsequently
declined
to
follow
the
Commonwealth’s
sentencing
recommendation).
-8-
ineffective assistance of counsel.
In such an instance, the
trial court is to “consider the totality of the circumstances
surrounding the guilty plea and juxtapose the presumption of
voluntariness
Strickland
inherent
a
Washington20
v.
counsel.”21
in
To
support
proper
inquiry
a
plea
into
defendant’s
colloquy
the
with
a
performance
assertion
that
he
of
was
unable to intelligently weigh his legal alternatives in deciding
to plead guilty because of ineffective assistance of counsel, he
must demonstrate the following:
(1) that counsel made errors so serious that
counsel’s performance fell outside the wide
range
of
professionally
competent
assistance; and (2) that the deficient
performance
so
seriously
affected
the
outcome of the plea process that, but for
the errors of counsel, there is a reasonable
probability that the defendant would not
have pleaded guilty, but would have insisted
on going to trial.22
Advising a client to plead guilty is not, in and of itself,
evidence of any degree of ineffective assistance of counsel.23
The
Kentucky
Supreme
Court
has
stated
that
“[g]enerally,
an
evaluation of the circumstances supporting or refuting claims of
coercion
and
ineffective
assistance
of
counsel
requires
20
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
21
Bronk, 58 S.W.3d at 486 (footnotes omitted).
22
Sparks v. Commonwealth, Ky.App., 721 S.W.2d 726, 727-28 (1986).
23
Beecham v. Commonwealth, Ky., 657 S.W.2d 234, 236-37 (1983).
-9-
an
inquiry into what transpired between attorney and client that
led to the entry of the plea, i.e., an evidentiary hearing.”24
Our analysis of the circumstances surrounding Rigdon’s
guilty plea begins with the plea hearing itself.
Rigdon’s plea
hearing
of
was
defendants
conducted
who
were
connection to Rigdon.
the
propriety
of
simultaneously
indicted
for
separate
that
crimes
two
and
other
had
no
The Kentucky courts have not addressed
conducting
defendants at once.25
with
a
plea
colloquy
with
multiple
The Tennessee Supreme Court has stated
that such a colloquy is sufficient under Boykin so long as each
defendant is represented by counsel, the number of defendants
involved is not so great as to make individual understanding
unlikely,
and
each
defendant
is
addressed
individually
to
establish on the record his understanding of his rights, the
charges against him, and the implications of a guilty plea, as
well as his intent to enter a guilty plea.26
Similarly, the
Court of Appeal of Louisiana, First Circuit, held that a guilty
plea hearing in which three defendants were advised of their
rights
jointly
was
adequate
because
the
court
personally
addressed each defendant; and the proceedings were adequate to
24
Rodriguez, 87 S.W.3d at 11.
25
While Rigdon has not raised this issue, we feel that we must
consider it because of the constitutional implications of Boykin.
26
Tennessee v. Neal, 810 S.W.2d 131, 138 (Tenn. 1991), withdrawn
June 3, 1991, and order withdrawing opinion rescinded, June 21, 1991.
-10-
establish
that
the
individual
defendant
at
issue
knowingly,
voluntarily, and expressly waived his Boykin rights.27
Rigdon’s
plea
hearing
was
unorthodox,
we
cannot
say
While
that
violated the requirements of Boykin in this instance.
it
Because
there were only three defendants involved in the plea hearing,
there were not so many participants as to create confusion or
chaos.
Rigdon
opportunity
circuit
to
court
defendants,
also
was
confer
with
informed
that
he
represented
counsel
Rigdon,
could
stop
by
counsel
during
the
along
the
with
hearing
and
had
hearing.
the
at
two
any
The
other
time
address the court or his counsel if he had a question.
the
and
The
court also reassured the three defendants that if any of them
wished to proceed with a trial, he would be tried separately.
While the court reviewed with the defendants as a group the
rights which each of them would be waiving by entering a guilty
plea, the court addressed Rigdon personally, informing him of
the
specific
agreement.
charges
The
against
court
then
him
and
the
terms
obtained
all
the
of
his
plea
individualized
responses of Rigdon which would ordinarily occur in a Boykin
hearing.
This is not an instance where the presence of multiple
defendants
resulted
colloquy.
While an individualized plea hearing might have been
27
in
a
cursory
or
less
than
thorough
plea
Louisiana v. Verdin, 845 So.2d 372, 377 (La.App. 1 Cir., 2003).
-11-
preferable, we hold that Rigdon’s plea hearing was adequate for
the circuit court to determine whether his guilty plea was made
knowingly and voluntarily.
We note that in its order denying Rigdon’s motion to
withdraw his guilty plea, the circuit court did not make the
required finding that Rigdon’s guilty plea was made voluntarily
under the totality of the circumstances.
However, the failure
of a trial court to make a finding of fact on an issue essential
to the judgment shall not be grounds for reversal or remand
unless it is brought to the attention of the court by a written
request for the finding no later than ten days after entry of
judgment.28
Two days after the entry of the judgment at issue,
Rigdon filed a pro se motion for reconsideration under CR 59.05.
This motion, which might more properly be styled a motion to
alter, amend, or vacate the judgment, stated, in part, that the
circuit court “failed to conduct itself accordingly [sic] to the
rule
set
forth
in
subsequent
order
contains
finding
a
Rodriguez
denying
of
Vs.
Rigdon’s
fact
that
Commonwealth
motion
Rigdon’s
for
plea
[sic].”
The
reconsideration
was
voluntary
under the totality of the circumstances and recites the evidence
which the court relied upon in making this decision.
Thus, any
deficiency in the original order denying the motion to withdraw
28
Kentucky Rules of Civil Procedure (CR) 52.04, 52.02.
-12-
Rigdon’s guilty plea is remedied by the fact that the trial
court’s order on the motion to reconsider contains the necessary
finding of fact.
Once
Rigdon
raised
a
particularized
claim
of
ineffective assistance of counsel, the circuit court needed to
look beyond the plea colloquy to determine whether his plea was
voluntarily
entered
under
surrounding his plea.
Rodriguez,
a
“[g]enerally
totality
of
the
circumstances
As the Kentucky Supreme Court stated in
claim
...
the
of
ineffective
requires
an
assistance
inquiry
into
of
what
counsel
transpired
between attorney and client that led to the entry of the plea,
i.e.,
an
hearing.”29
evidentiary
evidentiary hearing was conducted.
In
the
instant
case,
no
Rigdon and his attorney were
both given the opportunity to speak about the allegations Rigdon
raised
in
his
motion
to
withdraw
his
guilty
plea
at
the
sentencing hearing, although neither was placed under oath or
subjected to cross-examination.
that
this
informal
hearing
prejudiced him in anyway.
the Court.
Notably, Rigdon has not alleged
was
procedurally
inadequate
or
Therefore, this matter is not before
We observe that even if it were before us, we would
find that this informal hearing conducted was sufficient under
these
29
circumstances
for
the
circuit
87 S.W.3d at 11.
-13-
court
to
determine
the
totality
of
circumstances
surrounding
Rigdon’s
guilty
plea.
Nevertheless, conducting an evidentiary hearing would have been
the more prudent course since Rodriguez indicates that such a
hearing is generally necessary.30
We
turn
now
to
the
substance
of
Rigdon’s
claim
of
ineffective assistance of counsel since it is the sole basis for
his claim that his guilty plea was entered involuntarily.
the
circuit
entered
court
determined
voluntarily,
ineffective
assistance
it
that
Rigdon’s
Since
guilty
plea
was
implicitly
rejected
his
claims
of
counsel.
Rigdon
claims
that
the
of
paucity of attorney-client communication demonstrated ineffective assistance of counsel.
Sutton admitted that he and Rigdon
had only communicated twice, once at Rigdon’s arraignment and
once two days before trial when Rigdon was transferred to the
Henderson County Jail.
The fact that counsel consulted only
briefly with his client before his client entered a guilty plea
does
not,
absent
more,
establish
ineffective
assistance
of
counsel; it is only a factor to be considered in the totality of
the
circumstances.31
In
contrast
to
what
he
alleged
in
his
motion, Rigdon did not state that Sutton told him that he could
not help Rigdon at trial or that Rigdon had no choice but to
plead guilty.
Instead, Rigdon stated that he believed these
30
Id.
31
Jones v. Parke, 734 F.2d 1142, 1146-47 (6th Cir. 1984).
-14-
statements
to
be
true.
Rigdon
did
not
state
that
indicated in any way that he was unprepared for trial.
Sutton
Sutton
stated that he could have been ready for trial in two days if
Rigdon had wanted to proceed.
He had obtained discovery and the
DPA investigator had already investigated the case and could
assist in locating any necessary witnesses for trial.
Finally,
Sutton noted that he had experience in preparing for trials on
short notice.
While
the
limited
communications
between
Rigdon
and
Sutton were far from ideal, we note that such situations are not
uncommon, especially where a DPA attorney with a heavy caseload
represents a defendant who is incarcerated in a distant jail or
penitentiary.
It
is
not
incredible
to
believe
that
an
experienced criminal attorney in this situation who had obtained
discovery
and
had
the
benefit
of
an
investigator
to
locate
witnesses needed for trial could be prepared for trial in two
days.
We note that the charges, theft of services and receiving
stolen property, do not appear especially complex.
Rigdon also claims that his counsel was deficient in
neglecting to inform him that he could file a motion in limine
to exclude certain evidence.
However, Rigdon never reveals what
evidence, if any, he believes could have been excluded or the
basis
of
properly
its
exclusion.
admissible,
then
If
the
counsel
-15-
evidence
cannot
in
be
question
were
deficient
for
failing to file a motion in limine.32
Likewise, there is no
deficiency in failing to instruct one’s client of legal defenses
or
strategies
which
are
not
available
to
the
client.
An
ineffective assistance of counsel claim cannot be based upon
mere speculation.33
Rigdon’s claim that his counsel provided ineffective
assistance of counsel by not informing him of the possibility of
entering a conditional guilty plea fails for the same reason as
his
claim
concerning
a
motion
in
limine.
Rigdon
never
identifies the basis of his would-be conditional guilty plea.
What ruling of the court would he have challenged and upon what
basis?
Again, Rigdon’s claim is based upon mere speculation.
While Rigdon alleged in his motion to withdraw his
guilty
plea
potential
that
counsel
witnesses
whom
failed
Rigdon
to
investigate
had
or
identified
interview
as
having
exculpatory evidence, he never identified these witnesses nor
the exculpatory evidence which he believed that they possessed.
In fact, at his sentencing hearing, Rigdon did not address this
issue at all, hence waiving it.
Based on the foregoing, we find that Rigdon did not
demonstrate that his legal representation fell outside the wide
32
Cf. Bowling v. Commonwealth, Ky., 80 S.W.3d 405,
(“[F]ailure to object to admissible evidence cannot
ineffective assistance of counsel.”).
33
414 (2002)
result in
Moore v. Commonwealth, Ky., 983 S.W.2d 479, 486-87 (1998).
-16-
range of acceptable legal representation.
that
Rigdon
has
made
no
showing
of
Moreover, we note
prejudice.
He
has
not
demonstrated any reasonable probability that, but for counsel’s
alleged deficiencies, he would have insisted on going to trial.
In
fact,
the
favorable
sentence
agreement suggests otherwise.
he
received
under
the
plea
Before the plea agreement, Rigdon
was facing a possibility of five to ten years imprisonment on
the charge of receiving stolen property over $300, if it were
enhanced by the PFO 2nd charge,34 in addition to up to twelve
months on the theft of services under $300 charge.
received
only
three
years
total
imprisonment
Instead, he
under
the
plea
agreement.
The circuit court concluded that under the totality of
the circumstances, Rigdon’s plea was entered voluntarily.
This
conclusion is supported by the record of Rigdon’s plea colloquy.
Rigdon’s sole claim is that, notwithstanding the plea colloquy,
his guilty plea was involuntary because it was the product of
ineffective assistance of counsel.
However, Rigdon fails to
demonstrate either any deficiency in his legal representation or
any prejudice due to counsel’s actions, the two elements of an
ineffective assistance of counsel claim.
We find no error in
the circuit court’s determination that Rigdon’s plea was entered
34
KRS 532.080(5); 532.060(2)(c),(d); 514.110(3).
-17-
voluntarily under the totality of the circumstances because this
decision is supported by substantial evidence.
no
reason
why
we
should
find
the
circuit
Rigdon presents
court’s
ultimate
decision to deny his motion to withdraw his guilty plea to be
arbitrary,
principles.
unreasonable,
unfair,
or
unsupported
by
legal
Thus, we find that the circuit court did not abuse
its discretion by denying Rigdon’s motion to withdraw his guilty
plea.
For the reasons discussed above, we affirm.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Larry Michael Rigdon II,
Pro se
Eddyville, Kentucky
Albert B. Chandler III
ATTORNEY GENERAL OF KENTUCKY
Courtney J. Hightower
ASSISTANT ATTORNEY GENERAL
Frankfort, Kentucky
-18-
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