GERALD JOHNSON v. COMMONWEALTH OF KENTUCKY
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RENDERED: July 28, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001253-MR
GERALD JOHNSON
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
ACTION NO. 02-CR-000075
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
JUDGE.
McANULTY1 AND SCHRODER, JUDGES; ROSENBLUM,2 SENIOR
ROSENBLUM, SENIOR JUDGE:
Gerald Johnson (Johnson) brings this
matter of right appeal from a judgment of the Jefferson Circuit
Court, entered May 18, 2005, on a guilty plea, adjudging him
guilty of first-degree trafficking in a controlled substance
1
Judge William E. McAnulty, Jr. concurred in this opinion prior to his
resignation effective July 5, 2006, to accept appointment to the Kentucky
Supreme Court. Release of the opinion was delayed by administrative
handling.
2
Senior Judge Paul W. Rosenblum sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
Kentucky Revised Statutes 21.580.
(cocaine),3 operating a motor vehicle on a suspended license,4
failure to stop at a stop sign,5 and failure to give a traffic
signal,6 and sentencing him to respective terms of imprisonment
of five years and ninety days, and fines of $20.00 and $20.00,
to be served concurrently for a total of five years.
Before us,
Johnson argues that the trial court abused its discretion in
violation of his due process rights when it denied his request
to withdraw his guilty plea, pursuant to Kentucky Rule of
Criminal Procedure (RCr) 8.10, without holding an evidentiary
hearing into whether the plea was knowing, intelligent, and
voluntary.7
We agree, and vacate and remand.
During the January, 2002, term of the Jefferson County
Grand Jury, Indictment 02-CR-000075 was returned against Johnson
and co-defendant David A. Cantrell, charging both with firstdegree trafficking in a controlled substance (cocaine).
Johnson
was additionally charged with operating a motor vehicle on a
suspended license, failure to stop at a stop sign, and failure
to give a proper traffic signal.
According to the arrest slip,
the arresting officers stopped Johnson’s vehicle after observing
Johnson failing to both stop for a stop sign and use a turn
3
Kentucky Revised Statutes 218A.1412.
4
Kentucky Revised Statutes 186.620(2), class B misdemeanor.
5
Kentucky Revised Statutes 189.330(4), violation.
6
Kentucky Revised Statutes 189.380(1),(3), violation.
7
U.S. CONST. amends. VI, VIII, XIV; Ky. CONST. §§ 2, 7, 11, 17.
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signal.
Upon the stop, Johnson informed the officers that his
license was suspended.
The vehicle was searched and a piece of
crack cocaine was discovered under the front passenger seat
where Cantrell was sitting.
Johnson had $2,352.00 in his front
pocket, $2,080.00 of which was in twenty dollar bills.
While
seated in the police car, Cantrell volunteered that the cocaine
belonged to him.
On July 16, 2003, Johnson accepted the Commonwealth’s
offer on the guilty plea, which included dismissal of a firstdegree persistent felony offender8 (PFO I) charge,9 no stand on
probation, and forfeiture of all items seized.
Johnson signed
the standard guilty plea form and the trial court accepted the
plea, finding it to be voluntary.10
That same day, co-defendant
Cantrell was sentenced to five years’ imprisonment pursuant to
his guilty plea to first-degree trafficking in a controlled
substance (cocaine).11
Johnson’s sentencing was set for
September 3, 2003.
8
Kentucky Revised Statutes 532.080.
9
Although not on appeal and not contained in the record before us, the trial
court’s order on the plea of guilty also references Indictment 03-CR-000074,
which, based on the record before us, is the first-degree persistent felony
offender charge that was dismissed as a condition of the plea.
10
Although the plea colloquy was designated for inclusion in the record
before us, the clerk noted that the tape of this proceeding could not be
found.
11
A panel of this court dismissed Cantrell’s appeal of this judgment on
January 7, 2004, upon his motion. Cantrell v. Commonwealth, 2003-CA-001726MR.
-3-
On September 3, 2003, Johnson failed to appear for
sentencing and a bench warrant was issued.
Sixteen months
later, on January 11, 2005, he was arrested on the warrant,
arraigned, and a court date of February 16, 2005 was set.
On
that date, Johnson appeared before Judge Kathleen Voor Montano,
as Judge Tom McDonald, who had accepted the plea originally, had
retired.
Not only were Judge Montano and the defense attorney
new to the case, but the original prosecutor was not in court
that day.
Johnson initially moved to withdraw his guilty plea
contending that he originally understood from his attorney that
he was pleading guilty to five years’ probated, and not five
years’ imprisonment.
Upon the trial court’s review of the
record, the court noted that Johnson had signed the standard
guilty plea forms, and despite Johnson’s assertion that he was
assured probation, those forms indicated that the Commonwealth
took no stand on probation.
The court gave Johnson the option
of a review of the guilty plea colloquy to determine if a
hearing was necessary on the motion to withdraw or pass the case
for sentencing in accordance with the plea documents in the
record.
Johnson withdrew his motion to withdraw the plea,
asking instead for the case to be passed for sentencing.
Johnson appeared before the court for sentencing on
May 10, 2005.
On this date, Judge Geoffrey P. Morris was
sitting in for Judge Montano, who was in trial.
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Johnson advised
Judge Morris that he had argued before Judge Montano to withdraw
his guilty plea on the basis that he believed that he had
pleaded guilty to a probated sentence, but that Judge Montano
overruled the motion.
Based on that information, Judge Morris
declined to revisit the issue.
Johnson then indicated that the
denial of the motion to withdraw the guilty plea would be an
issue for appeal.
Johnson’s motion for probation was denied,
and he was sentenced pursuant to his plea to five years’
imprisonment.12
The Commonwealth argues that this issue is not
preserved for appeal, as Judge Morris declined to review the
motion due to counsel’s erroneous information that Judge Montano
had issued a ruling denying the motion.
We disagree.
In the instant case, Johnson’s new defense attorney
originally made the motion to withdraw the guilty plea before a
judge new to the case; additionally, the original prosecutor was
not in court on that date.
Because all were unfamiliar with the
record, a recess was taken for the attorneys to review same.
After the recess Johnson himself withdrew the motion, instead
asking to be sentenced to a probated sentence.
Based on the
signed guilty plea forms in the record indicating the
Commonwealth took no stand on probation, the trial court gave
12
Later, on May 23, 2005, an order of forfeiture was entered as to the
$2,352.00 seized.
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Johnson the option to continue looking into the validity of the
plea or to continue the matter for sentencing, and Johnson chose
the latter.
At sentencing, Johnson again moved to withdraw his
guilty plea, citing misinformation from his attorney as to the
probated sentence.
The error before us occurred when Judge
Morris, albeit in reliance on the defense attorney’s erroneous
statement that Judge Montano had already denied the motion,
declined to issue a ruling.
Pursuant to Kentucky Rules of Criminal Procedure (RCr)
8.10, the trial court can permit the withdrawal of a guilty plea
at any time before judgment.
The discretion of the trial court
to deny a motion to withdraw a guilty plea exists only after a
determination has been made that the plea was voluntary, because
if the plea was involuntary, the plea must be allowed to be
withdrawn.
2002).
Rodriguez v. Commonwealth, 87 S.W.3d 8, 10 (Ky.
By declining to rule herein, the trial court effectively
denied Johnson’s motion without the necessary inquiry into the
voluntariness of the plea.
Johnson’s allegation that he
believed he pleaded guilty to a probated sentence and not to a
term of imprisonment is an argument as to the voluntariness of
his plea.
Pursuant to Rodriquez, an inquiry into this claim is
accomplished by an evidentiary hearing into the circumstances
surrounding the entry of the plea.
Id. at 11.
The trial
court’s declination to rule on Johnson’s motion is an abuse of
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discretion, requiring remand for an evidentiary hearing into the
voluntariness of Johnson’s plea.
For the foregoing reasons, the judgment of the
Jefferson Circuit Court is vacated, and the case is remanded for
an evidentiary hearing as to the voluntariness of the plea in
light of Johnson’s RCr 8.10 motion to withdraw his guilty plea.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Linda Roberts Horsman
Frankfort, Kentucky
Gregory D. Stumbo
Kentucky Attorney General
Kevin R. Branscum
Assistant Attorney General
Frankfort, Kentucky
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