ISREAL DUNBAR SMITH v. COMMONWEALTH OF KENTUCKY
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RENDERED: MARCH 10, 2006; 2:00
NOT TO BE PUBLISHED
P.M.
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000245-MR
ISREAL DUNBAR SMITH
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR., JUDGE
INDICTMENT NO. 01-CR-00439
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, HENRY, AND KNOPF, JUDGES.
HENRY, JUDGE:
Israel Dunbar Smith appeals from a January 12,
2005 order of the Fayette Circuit Court denying his petition for
RCr1 11.42 relief.
Upon review, we affirm.
On April 24, 2001, Smith was indicted by the Fayette
County grand jury on multiple counts of first-degree robbery2 and
second-degree robbery,3 along with one count of being a first-
1
Kentucky Rules of Criminal Procedure.
2
Pursuant to Kentucky Revised Statutes (“KRS”) 515.020.
3
Pursuant to KRS 515.030.
degree persistent felony offender.4
On April 26, 2001, Smith
appeared in court by video and entered a plea of “not guilty” to
the charges set forth in the indictment.
On September 21, 2001, upon agreement with the
Commonwealth Attorney, Smith filed a “Waiver of Further
Proceedings with Petition to Enter Plea of Guilty,” pursuant to
RCr 8.02 and 8.08, as to a number of the counts in the
indictment (including the persistent felony offender count,
which had been amended down to a second-degree charge). On
September 24, 2001, the trial court entered a “Judgment on
Guilty Plea” accepting Smith’s plea as being knowing, voluntary,
and having an actual basis in fact, and consequently adjudging
him guilty of the applicable charges.
On October 16, 2001, the
trial court entered a “Final Judgment Sentence of Imprisonment”
sentencing Smith to a total of 35 years imprisonment, with two
counts running consecutively rather than concurrently.
The
remaining counts of the indictment that were not part of Smith’s
guilty plea were dismissed.
On October 12, 2004, Smith filed a “Motion for Relief
Pursuant to RCr 11.42 and Motion to Set Aside Guilty Plea
Pursuant to Boykin.”5
4
The basis for both motions was ineffective
Pursuant to KRS 532.080.
5
“Boykin” is a reference to the United States Supreme Court’s decision in
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
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assistance of counsel.
Specifically, Smith claimed that his
trial counsel “[f]ailed to properly investigate his case prior
to guilty plea” and “[i]nformed the Movant, by guilty plea form,
that the maximum he could receive on all charges was twenty (20)
years and whereby the Movant actually received a sentence of
thirty-five (35) years without counsel discussing this
development with him.”
Smith consequently claimed that, because
of these deficiencies, he “was deprived of entering a guilty
plea that was understanding and voluntary,” and he was therefore
seeking to rescind his guilty plea and be allowed a trial by
jury.
On January 12, 2005, the circuit court entered an
order denying Smith’s motions without a hearing.
The court
first stated that the colloquy between the trial judge and Smith
at the guilty plea proceedings was “text book” proper procedure
pursuant to Boykin v. Alabama.
The court also noted that Smith
made no mention during the colloquy about any confusion on his
part as to the Commonwealth’s recommendations or the punishments
that could be imposed by the trial court, stating: “Even at the
Sentencing Hearing, after hearing the Court’s pronouncement of
sentence of thirty-five (35) years, the Movant was silent and
nothing else was done in this case for three (3) years until the
filing of this Motion.”
The court then referenced as
“particularly significant” two separate exchanges between Smith
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and the trial judge in which Smith was asked if he understood
that the court may order his sentences to run consecutively or
concurrently with one another and Smith answered that he did.
The circuit court concluded that these facts demonstrated that
all of Smith’s constitutional rights had been satisfied and met.
The court further held that Smith was not entitled to
relief simply because the sentencing judge did not officially
sign the filed “Waiver of Further Proceedings with Petition to
Enter Plea of Guilty,” and that Smith’s trial counsel “exceeded
the objective standard of reasonableness in negotiating a very
favorable plea agreement and recommendation from the
Commonwealth in light of the numerous and serious Counts of the
Indictment.”
The court also indicated its belief that Smith had
been advised on multiple occasions in open court and in writing
about the potential punishments that he faced.
His arguments
rejected, Smith filed this appeal.
We first address Smith’s contention that the trial
court was in error in denying his petition for RCr 11.42 relief
without conducting an evidentiary hearing.
In Fraser v.
Commonwealth, 59 S.W.3d 448 (Ky. 2001), our Supreme Court
summarized the procedure for circuit courts to follow in
determining whether to conduct an evidentiary hearing under RCr
11.42.
“After the answer is filed, the trial judge shall
determine whether the allegations in the motion can be resolved
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on the face of the record, in which event an evidentiary hearing
is not required. A hearing is required if there is a material
issue of fact that cannot be conclusively resolved, i.e.,
conclusively proved or disproved, by an examination of the
record.”
Id. at 452.
After reviewing the briefs and the
record, we believe that the trial court did not err in finding
that the allegations in question could be resolved without the
need of an evidentiary hearing, and we therefore focus our
attention on Smith’s other arguments.
Smith’s primary contention is that he did not
knowingly and voluntarily enter into his guilty plea due to the
ineffective assistance of his counsel.
Specifically, he argues
that he believed that he could receive a maximum prison sentence
of only 20 years, and that his trial counsel was ineffective in
failing to advise him that – even in pleading guilty – he could
receive a sentence of 45 years, 70 years, or even life.
In determining whether counsel rendered ineffective
assistance in connection with a defendant’s guilty plea, this
court has stated:
A showing that counsel’s assistance was
ineffective in enabling a defendant to
intelligently weigh his legal alternatives
in deciding to plead guilty has two
components: (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
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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.
Sparks v. Commonwealth, 721 S.W.2d 726, 727-28 (Ky.App. 1986);
see also Russell v. Commonwealth, 992 S.W.2d 871, 874 (Ky.App.
1999).
“The trial court’s inquiry into allegations of
ineffective assistance of counsel requires the court to
determine whether counsel’s performance was below professional
standards and ‘caused the defendant to lose what he otherwise
would probably have won.’”
Bronk v. Commonwealth, 58 S.W.3d
482, 487 (Ky. 2001), quoting Foley v. Commonwealth, 17 S.W.3d
878, 884 (Ky. 2000).
It also requires an evaluation of “whether
counsel was so thoroughly ineffective that defeat was snatched
from the hands of probable victory.”
Id., quoting Foley, supra.
The general question involved in analyzing the
validity of a guilty plea is “whether the plea represents a
voluntary and intelligent choice among the alternative courses
of action open to the defendant.”
North Carolina v. Alford, 400
U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970).
The
voluntariness of a guilty plea can only be determined by
examining the “totality of the circumstances surrounding the
guilty plea.”
Bronk at 486; see also Rodriguez v.
Commmonwealth, 87 S.W.3d 8, 10-11 (Ky. 2002).
“These
circumstances include the accused’s demeanor, background and
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experience, and whether the record reveals that the plea was
voluntarily made.”
(Ky.App. 2001).
D.R. v. Commonwealth, 64 S.W.3d 292, 294
We also note that declarations in open court
carry a strong presumption of verity.
Centers v. Commonwealth,
799 S.W.2d 51, 54 (Ky.App. 1990).
The voluntariness of a guilty plea also depends on
whether the advice given to a defendant was within the range of
competence required of attorneys in criminal cases.
U.S. at 55.
Hill, 474
Our Supreme Court has mandated that “[j]udicial
review of the performance of defense counsel must be very
deferential to counsel and to the circumstances under which they
are required to operate.
There is always a strong presumption
that the conduct of counsel falls within the wide range of
reasonable professional assistance because hindsight is always
perfect.”
2003).
Hodge v. Commonwealth, 116 S.W.3d 463, 469 (Ky.
Moreover, simply advising a client to plead guilty, in
and of itself, does not constitute evidence of ineffective
assistance of counsel.
Rigdon v. Commonwealth, 144 S.W.3d 283,
288 (Ky.App. 2004).
From our review of the record, Smith’s guilty plea
appears to be knowing, intelligent, and voluntary.
As noted by
the Commonwealth, Smith signed a “Waiver of Further Proceedings
with Petition to Enter Plea of Guilty” acknowledging that he
understood his Constitutional rights and that he intended to
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waive them.
Smith also acknowledged that he and his attorney
fully discussed his case, and that he understood “the charges
and any possible defenses to them.”
He also indicated that his
guilty plea was being entered into freely, knowingly,
intelligently, and voluntarily, and his attorney verified his
belief that this was, in fact, the case.
Furthermore, as
acknowledged by the circuit court below, Smith also engaged in a
lengthy and detailed plea colloquy with the trial judge in which
he took full responsibility for his actions and reiterated that
his guilty plea was a knowing and voluntary act on his part.
Moreover, the trial judge advised Smith on multiple occasions
that she did not have to follow any sentencing recommendations
made by the Commonwealth, and that she was bound by no deals
that the Commonwealth might offer.
Smith answered these
statements in a manner indicating full understanding.
Smith argues, however, that his guilty plea should not
be considered voluntary because his trial counsel failed to
advise him that he could be imprisoned for a term of more than
20 years and because the guilty plea petition indicates that he
could only receive a maximum of 20 years imprisonment.
We find
these arguments to be unavailing.
Paragraph 9 of Smith’s guilty plea petition reads as
follows:
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My attorney has advised me as to the maximum
punishment which the law provides for the offense
charged in the indictment as follows: A maximum of 20
years imprisonment and a fine of $ __ for the offense
of Rob 1 20 yrs – 2 cts Rob 2 – 10 yrs & 15 yrs PFO 2d
of the indictment and that the Court may order the
sentence on each count to run either concurrently or
consecutively with each other ....
While this paragraph is certainly not crystal clear, it does set
forth the multiple counts to which Smith was pleading guilty,
their possible penalties (which came to a combined 45 years),
and the fact that the court may order the sentence on each count
to run consecutively.
Furthermore, Paragraph 17 of the petition
again sets forth that Smith is pleading guilty to “Rob 1 – 20
yrs – 2 cts Rob 2 10 yrs & 15 yrs PFO 2d.”
Consequently, we
seriously question Smith’s argument that the petition led him to
believe that he could only receive 20 years imprisonment, as it
sets forth on multiple occasions the additional penalties with
which he was faced on each count.
Moreover, as the circuit court recognized, Smith was
twice told by the trial judge that his sentences could run
concurrently or consecutively and that she was not obligated to
follow any sentencing recommendation of the Commonwealth; as
noted above, the guilty plea petition also stated these same
facts.
In addition, when Smith was finally sentenced to a total
of 35 years imprisonment, the record indicates that he failed to
voice any protests or questions about the length of his
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sentence.
Instead, he said nothing whatsoever other than
thanking the judge.
As the circuit court noted, Smith was a
“person of experience” in the criminal system who had entered
guilty pleas before.
Moreover, we agree with the court’s
characterization of Smith as “a person of obvious intelligence
as a high school graduate who had attended at least one year of
college” after reviewing his plea colloquy with the trial judge.
Indeed, on a previous occasion in court, Smith was quick to
speak up and voice his concerns when someone mistakenly
indicated that he was pleading guilty to being a first-degree
persistent felony offender instead of a second-degree offender.
Consequently, we think it telling that he failed to say anything
about his sentence at the time it was read.
In sum, we believe
that these facts refute Smith’s contention that he was relying
on a 20-year maximum sentence in pleading guilty.
Perhaps more importantly, our Supreme Court has long
held that a knowing, intelligent, and voluntary guilty plea does
not require that a defendant be informed of every possible
consequence and aspect of the plea.
725 S.W.2d 593, 594 (Ky. 1987).
See Jewell v. Commonwealth,
Of particular relevance here,
there is no requirement that a defendant be informed of the
entire range of sentences that may be imposed in order for his
or her guilty plea to be valid.
Id.
Consequently, even
assuming that Smith’s counsel did fail to inform him that he
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could be sentenced to more than 20 years imprisonment, such a
failure does not give rise to a conclusion that Smith’s guilty
plea was automatically involuntary.
Indeed, we believe that the
record before us strongly indicates otherwise.
Accordingly,
having concluded that Smith’s guilty plea was voluntarily made,
we must reject his ineffective assistance of counsel claim, as a
valid guilty plea waives all defenses other than that the
indictment charges no offense.
Centers, 799 S.W.2d at 55.
We finally turn to Smith’s contention that the circuit
court erred in finding that the trial judge had accepted his
guilty plea when she did not actually sign the “Waiver of
Further Proceedings with Petition to Enter Plea of Guilty.”
Smith cites to RCr 9.26(1), which reads: “Cases required to be
tried by jury shall be so tried unless the defendant waives a
jury trial in writing with the approval of the court and the
consent of the Commonwealth”.
He contends that a guilty plea
form must be signed by a trial judge in order for it to be
“accepted” in accordance with the rule.
Smith also argues that,
had the trial judge reviewed the form, she would not have
approved his plea because of the purported statement within
indicating that he could only receive a maximum sentence of 20
years.
After reviewing the record, we believe that these
arguments lack merit.
First, there is nothing within the record
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to suggest that the trial judge failed to review Smith’s guilty
plea petition.
Moreover, as noted above, we believe that the
guilty plea petition sets forth that Smith was potentially
subject to more than 20 years imprisonment on the charges for
which he was pleading guilty.
Furthermore, as noted above, the
form sets forth that the trial court may order sentences to run
consecutively or concurrently.
Accordingly, we do not believe
that there is anything within the guilty plea petition that
would have given the trial judge pause and made her reject
Smith’s guilty plea.
We also do not agree with Smith that RCr 9.26(1)
mandates that a trial judge sign a guilty plea petition before a
guilty plea can be accepted, as the rule itself contains nothing
to this effect.
Instead, it only requires that the defendant
waive a jury trial in writing and that the trial court approve
the waiver – there is nothing suggesting that a trial judge’s
signature is required for “approval” to take place.
Instead, we
believe that the trial court clearly expressed its approval of
Smith’s jury trial waiver by accepting his guilty plea both in
open court and in its “Judgment on Guilty Plea” entered on
September 24, 2001.
However, even assuming that the trial court erred in
failing to sign Smith’s guilty plea petition, we do not believe
that any such error would rise to the level of a constitutional
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deprivation of due process, as is required by RCr 11.42.
See
Johnson v. Commonwealth, 180 S.W.3d 494, 498 (Ky.App. 2005).
Instead, we would categorize it as a mere technical error that
is insufficient to establish prejudice under the standards
required by RCr 11.42.
See Hodge, 116 S.W.3d at 469.
Therefore, Smith’s arguments in this respect are without merit
and must be rejected.
The judgment of the Fayette Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
Traci H. Boyd
Lexington, Kentucky
Gregory D. Stumbo
Attorney General for Kentucky
Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky
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