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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