COMMONWEALTH OF KENTUCKY v. JEFFREY D. HARLOW
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RENDERED: July 8, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
NO.
NO.
NO.
2004-CA-000996-MR
2004-CA-000997-MR
2004-CA-000998-MR
2004-CA-000999-MR
COMMONWEALTH OF KENTUCKY
v.
APPELLANT
APPEAL FROM BARREN CIRCUIT COURT
HONORABLE PHIL PATTON, JUDGE
INDICTMENT NOS. 03-CR-00027, 03-CR-00028,
03-CR-00029 AND 03-CR-00030
JEFFREY D. HARLOW
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER AND SCHRODER, JUDGES; HUDDLESTON, SENIOR JUDGE.1
HUDDLESTON, SENIOR JUDGE:
The Commonwealth appeals from a
Barren Circuit Court order and two amended final judgments
granting in part a motion by Jeffrey D. Harlow to withdraw his
plea of guilty.
Harlow had entered a plea of guilty to two
charges of wanton endangerment and one charge of first-degree
1
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
stalking.
After final judgment and sentencing, the circuit
court allowed him to withdraw the plea of guilty to stalking on
the ground that it was involuntary, and sentenced him to serve
six years on the remaining charges.
The Commonwealth contends
that there was no evidence that Harlow’s plea was involuntary,
and that in allowing him to withdraw only part of his plea, the
circuit court improperly interjected itself into the area of
plea negotiations.
Harlow was charged with various crimes against a
former girlfriend, Andrea “Andi” Amos, under the following four
indictments:
03-CR-00027
Criminal Attempt Murder
Wanton Endangerment, first degree
Criminal Mischief, third degree
03-CR-00028
Burglary, second degree
Stalking, first degree
Harassment
Harassing Communications
03-CR-00029
Stalking, first degree
Attempted Sodomy, first degree
Sexual Abuse, first degree
03-CR-00030
Wanton Endangerment, first degree
Disorderly Conduct
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A trial on indictment number 03-CR-00027 began on June
12, 2003.
On the morning of the following day, the
Commonwealth’s attorney and Harlow’s defense counsel advised the
court that they had reached a plea agreement which encompassed
all four cases.
The record indicates that Harlow had arrived at
court that day fully expecting the trial to continue.
There was
a colloquy at the bench about the plea agreement in which
counsel informed the court that the following agreement had been
reached:
Under indictment number 03-CR-00027, the attempted
murder charge was initially amended to criminal assault in the
second degree, and the other charges were dismissed; under 03CR-00028, all charges except for stalking in the first degree
were dismissed; under 03-CR-00029, all charges were dismissed in
exchange for guilty pleas in the other indictments; and under
03-CR-00030, the disorderly conduct charge was dismissed.
According to the proposed settlement agreement Harlow was to
serve five years for the wanton endangerment charge under 03-CR00027, five years for stalking under 03-CR-00028, and one year
for wanton endangerment under 03-CR-00030.
The two five-year
sentences were to run consecutively and the one-year sentence
concurrently for a total sentence of ten years.
As the agreement was being discussed, some confusion
arose because both the Commonwealth’s attorney and defense
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counsel mistakenly thought that criminal assault in the second
degree was a class D felony.
After the trial court corrected
them by pointing out that second-degree criminal assault is a
class A misdemeanor, a fourteen-minute break followed, during
which the attorneys revised the agreement.
When they returned
to the courtroom, the criminal assault charge under the first
indictment had been amended to wanton endangerment in the first
degree, a class D felony.
Harlow entered a guilty plea under
the terms of the amended plea agreement, and on July 7, 2003, he
was sentenced to serve ten years in prison.
Some five months later, Harlow moved for shock
probation.
On February 11, 2004, he also filed a series of
motions to withdraw his guilty plea, for a new trial, to alter,
amend and vacate the judgment, and for relief pursuant to CR
60.02.
As the basis for his motion to withdraw his plea, Harlow
claimed that he had not understood the nature of the charges,
and that he had been unaware of how the plea of guilty to
stalking would affect where he was housed by the Department of
Corrections.2
The circuit court held a hearing on Harlow’s motions
on February 19, 2004.
On April 22, 2004, the court denied the
motion for shock probation.
The court did grant Harlow’s motion
2
Although it is not entirely clear from the record, it appears that the
stalking conviction meant that Harlow was not allowed “outside the fence” at
the prison. It also appears that he has not been permitted to serve his time
at a local jail because of the length of his sentence.
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to withdraw his guilty plea, but only to the charge of stalking
under indictment 03-CR-00028.
He was not allowed to withdraw
the guilty pleas to the two counts of wanton endangerment under
03-CR-00027 and 03-CR-00030.
The court explained its reasoning
as follows:
The plea to stalking is more problematic
[than the pleas to wanton endangerment].
That was not a charge for which the
Defendant was then on trial [at the time of
entry of the plea, he was on trial for the
charges in indictment number 03-CR-00027
only]. There is no evidence in the record
that the stalking plea had even been
discussed until just a few minutes of
negotiations that resulted in a guilty plea.
The Court after considering all the evidence
and arguments of counsel finds that the plea
to stalking in the first degree was not
entered intelligently, knowingly and
voluntarily[.]
Thereafter, amended judgments resentencing Harlow to serve the
five- and one-year sentences on the two remaining wanton
endangerment charges consecutively for a total of six years were
entered.
The stalking charge was set for trial by jury.
On appeal, the Commonwealth argues that the circuit
court abused its discretion in allowing a partial withdrawal of
the guilty plea.
The Commonwealth contends that Harlow’s plea
to all the charges was entered knowingly and voluntarily
according to the standards established in Boykin v. Alabama,3 and
that his lack of knowledge of how the conviction for stalking
3
395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).
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would affect where and under what conditions he would serve his
sentence was not sufficient to invalidate the plea.
The Commonwealth also disputes Harlow’s claim, and the
circuit court’s finding, that he was given too little time in
which to decide to plead guilty to stalking.
Finally, the Commonwealth contends that the court
improperly interjected itself into the plea negotiations.
It
claims that the Commonwealth had sought to “package” all of
Harlow’s cases into one agreement.
By allowing him to withdraw
from only part of the agreement, the Commonwealth charges, the
trial court gave Harlow the optimum benefit of the plea
agreement while depriving the Commonwealth of the benefit for
which it had bargained:
a ten-year sentence and a final
resolution of all charges.
We review the trial court’s decision for abuse of
discretion.
[A] proper exercise of this discretion
requires trial courts to consider the
totality of circumstances surrounding the
guilty plea[.]
. . . .
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 the plea was voluntarily
made.”
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. . . .
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,
misunderstanding, 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 reviews a trial court’s ruling on a
defendant’s motion to withdraw his guilty
plea only for abuse of discretion[.]
. . . .
[We must determine whether] substantial
evidence . . . supports the trial court’s
finding [that the plea was involuntary].4
In this case, Harlow was permitted to withdraw his
plea to one of the charges after final judgment and sentencing.
The trial court acknowledged that it was “harder to withdraw
[such a plea] after sentencing” and that a defendant needed to
show fear, deceit or coercion in order to prevail on such a
claim.5
The most persuasive testimony at the evidentiary
hearing was provided by Grant Smith, an attorney who represents
a party opposing Andi Amos in a civil suit.
Smith testified
that he was present at the events leading up to the entry of the
4
Bronk v. Commonwealth, 58 S.W.3d 482, 486-488 (Ky. 2001) (citations
omitted).
5
See e.g., Blair v. Commonwealth, 479 S.W.2d 643, 644 (Ky. 1972).
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guilty plea.
He stated that Joe Kirwan, Harlow’s attorney, told
Harlow that he had ten minutes to make up his mind whether to
accept the plea agreement – that it was his choice, “twenty-five
years or ten years.”
Smith further testified that when Harlow
entered the plea, he “looked shell-shocked, couldn’t put one
foot in front of the other and appeared not to know where he
was.”
Smith stated that Harlow appeared to be under duress,
coercion or was not acting voluntarily because “he did not know
what he was doing.”
Another witness, Mark Underwood, testified that after
the confusion over whether the criminal assault charge was a
felony or a misdemeanor had been cleared up, “nothing was gone
over again,” that there was no discussion of pleading guilty to
stalking and that at the time, he “couldn’t believe” Harlow was
pleading guilty.
Kirwan testified that the issue of pleading guilty to
stalking did not come up until that morning, although the day
before the judge had urged him and the Commonwealth’s attorney
to arrive at a settlement.
The court reviewed the videotape of the guilty plea
proceedings during the course of the evidentiary hearing and
commented that there was “considerably more confusion than
average surrounding the plea.”
The record reveals substantial
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evidence to support the trial court’s finding that Harlow’s plea
of guilty to stalking was involuntary.
The Commonwealth also contends that, under our case
law, Harlow did not have to be informed that a conviction for
stalking could affect where he was housed by the Department of
Corrections.
Although Harlow did make the argument in his
motion that this lack of information had rendered his plea
involuntary, the circuit court did not base its decision on this
factor.
Rather, the court specifically found that the
determining factor was that there had not been sufficient time
for discussion of the plea.
The Commonwealth’s argument that the court erred in
allowing Harlow to withdraw only part of the plea, thereby
allowing him to reap only the benefits from the plea agreement,
was never raised by the Commonwealth at any time during the
course of hearing, nor did the Commonwealth file a subsequent
motion for reconsideration or to alter, amend or vacate the
court’s order.
The propriety of allowing the withdrawal of only
part of the plea was never presented for the trial court’s
consideration and thus is not preserved for our review.
We
“will not consider a theory unless it has been raised before the
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trial court and that court has been given an opportunity to
consider the merits of the theory.”6
For the foregoing reasons, the Barren Circuit Court
order and amended final judgments from which this appeal is
prosecuted are affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Gregory D. Stumbo
Attorney General of Kentucky
Tim Gillenwater
Glasgow, Kentucky
Karen M. Timmel
Special Assistant Attorney
General
Glasgow, Kentucky
6
Shelton v. Commonwealth, 992 S.W.2d 849, 852 (Ky. App. 1998), citing
Hopewell v. Commonwealth, 641 S.W.2d 744, 745 (Ky. 1982).
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