WYATT (PAUL D) VS. COMMONWEALTH OF KENTUCKY
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RENDERED:
FEBRUARY 15, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO.
2006-CA-000871-MR
PAUL D. WYATT
APPELLANT
APPEAL FROM CASEY CIRCUIT COURT
HONORABLE JAMES D. WEDDLE, JUDGE
ACTION NO. 01-CR-00086
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
ACREE, KELLER, AND MOORE, JUDGES.
KELLER, JUDGE:
Paul D. Wyatt has appealed from the order of the
Casey Circuit Court denying his motion to withdraw his guilty
plea and reinstating the judgment sentencing him to fifteenyears' imprisonment for a sodomy conviction.
Having determined
that the circuit court properly found that Wyatt's plea was
entered voluntarily, knowingly, and intelligently, and that the
circuit court did not abuse its discretion in denying the
motion, we affirm.
On August 27, 2001, the Casey County grand jury
indicted Wyatt on four counts of sex crimes.
These charges were
First-Degree Rape (KRS 510.040); First-Degree Sexual Abuse (KRS
510.110); and two counts of First-Degree Sodomy (KRS 510.070),
which all arose as a result of his actions against his eightyear-old step-granddaughter.
Kentucky State Police Detective
Timothy Jaynes investigated the allegations and obtained a
recorded confession from Wyatt.
Wyatt moved the circuit court
to suppress the results of his interview and recorded statement.
This motion was denied following an evidentiary hearing.
At
that point, Wyatt opted to accept the Commonwealth's offer on a
plea of guilty, conditioned on his right to appeal the
suppression ruling.
In exchange for a guilty plea to one count
of sodomy, which would be treated as a Class B felony, the
remaining charges would be dismissed and the Commonwealth would
recommend a fifteen-year sentence.
The circuit court held a
lengthy hearing prior to accepting the guilty plea, during which
Wyatt was extensively questioned to ensure his understanding of
the plea procedure and the consequences of his decision to plead
guilty.
The circuit court accepted Wyatt's plea and scheduled a
sentencing hearing for the following month.
Following the guilty plea hearing, but before the
sentencing hearing took place, Wyatt filed a motion to withdraw
his guilty plea.
His attorney, Robert L. Gullette, Jr.,
attached an affidavit in support of the motion, stating that he
had incorrectly informed Wyatt that he would be eligible for
parole after serving 20% of his sentence, rather than 85%, and
that Wyatt would not have entered a plea had he been properly
informed.
The parties presented argument on this motion at the
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sentencing hearing.
At that time, attorney Gullette continued
to argue that the basis of the motion was his incorrect advice
regarding when Wyatt would be eligible for parole.
However,
Wyatt himself stated that he wanted to withdraw his plea because
he was not guilty of the crime and that he signed the guilty
plea form only because his attorney told him he had to in order
to take the plea.
After considering the guilty plea proceedings
and the benefit Wyatt was receiving, as well as the fact that
parole was not within its province, the circuit court denied
Wyatt's motion to withdraw his plea and sentenced him to fifteen
years in prison in accordance with the Commonwealth's
recommendation.
Wyatt appealed from the circuit court's judgment,
raising two issues:
1) the ruling on his motion to suppress,
and 2) the denial of his motion to withdraw his guilty plea.1
In
an opinion rendered March 26, 2004, which became final March 15,
2005, the Court of Appeals affirmed the circuit court's ruling
on the motion to suppress, but vacated the ruling on the motion
to withdraw the guilty plea.
The matter was then remanded to
allow the circuit court to hold an evidentiary hearing to
determine whether Wyatt's guilty plea was knowingly,
intelligently, and voluntarily entered.
Upon remand, the circuit court held the ordered
evidentiary hearing, at which Wyatt was represented by new
counsel.
Wyatt testified that he remembered signing the plea
agreement, but that he did not know he was admitting that he was
1
Wyatt v. Commonwealth, 2002-CA-001639-MR.
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guilty.
He stated that following the guilty plea hearing, once
he had figured out what he had done, he contacted his attorney
to tell him he wanted to withdraw his plea.
He stated that he
did not understand what the plea was based on or what it was
about.
On cross-examination, Wyatt repeatedly testified that
the only reason he wanted to withdraw his plea was because he
was not guilty, although he admitted that he understood the
rights he was giving up.
The circuit court then replayed the
videotaped recordings of both the guilty plea and sentencing
hearings.
Wyatt then called his trial attorney to testify.
Attorney Gullette testified that he did not recall that Wyatt
called him the day after the guilty plea hearing, but did recall
being called following Wyatt's interview by pre-trial officers.
It was then that he found out about parole eligibility.
Attorney Gullette admitted that he had gone over all of the
documents with Wyatt and that he would have ended the guilty
plea hearing had he thought his client did not understand the
proceedings.
He also stated that based upon the taped
confession, he told Wyatt that he did not have any chance at a
not guilty verdict if the case went before a jury.
At the conclusion of the hearing, the circuit court
spoke extensively on the record, detailing the issue on which
the case was remanded to it, the earlier proceedings, and the
current testimony.
The circuit court concluded that, based upon
the totality of the circumstances, Wyatt's original plea was
entered voluntarily and with full knowledge of the consequences.
The circuit court also noted that parole eligibility is up to
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the Executive Branch, not to the courts.
Accordingly, the
motion to withdraw the guilty plea was again denied, and the
original judgment was reinstated.
This appeal followed.2
Our standard of review in the matter is two-fold.
First, we must determine whether the circuit court’s
determination that Wyatt's plea was voluntary is supported by
the record under a clearly erroneous standard.
In Lynch v.
Commonwealth, 610 S.W.2d 902, 905 (Ky.App. 1980), this Court
held that it “is not to act de novo in determining the question
of voluntariness.
Rather it is to review the record before it
to ascertain whether the court below acted erroneously in
denying that appellant’s pleas were made involuntarily.”
More
recently, the Supreme Court of Kentucky in Rodriguez v.
Commonwealth, 87 S.W.3d 8, 10 (Ky. 2002), stated, “[o]ur case
law is clear that the discretion to deny a motion to withdraw a
guilty plea exists only after a determination has been made that
the plea was voluntary.
If the plea was involuntary, the motion
to withdraw must be granted.”
Second, if the plea was
voluntary, we must determine whether the circuit court abused
its discretion in denying Wyatt's motion to withdraw his guilty
plea.
Edmonds v. Commonwealth, 189 S.W.3d 558 (Ky. 2006);
Anderson v. Commonwealth, 507 S.W.2d 187, 188 (Ky. 1974); Hurt
v. Commonwealth, 333 S.W.2d 951, 953 (Ky. 1960).
Pursuant to RCr 8.08, a criminal defendant is
permitted to plead not guilty, guilty, or guilty but mentally
ill.
However, a trial court is not permitted to accept a plea
2
This matter is before us on a belated appeal, as Wyatt's appointed counsel
at the evidentiary hearing failed to timely file a notice of appeal.
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of guilty “without first determining that the plea is made
voluntarily with understanding of the nature of the charge.”
In
Edmonds, the Supreme Court examined the constitutional
protections afforded to a defendant in guilty plea proceedings:
A trial court may accept a criminal
defendant's conditional guilty plea to any
criminal charge, but must first ascertain
that the plea is made voluntarily and with
an understanding of the nature of the
charge. RCr 8.08-.09. Due process requires
a trial court to make an affirmative
showing, on the record, that a guilty plea
is voluntary and intelligent before it may
be accepted. Boykin v. Alabama, 395 U.S.
238, 241-42, 89 S.Ct. 1709, 1711, 23 L.Ed.2d
274 (1969).
189 S.W.3d at 565 (footnote omitted).
However, we note that “a
knowing, voluntary and intelligent waiver does not necessarily
include a requirement that the defendant be informed of every
possible consequence and aspect of the guilty plea.”
Turner v.
Commonwealth, 647 S.W.2d 500, 500-01 (Ky.App. 1982).
The Turner
Court noted that “Boykin does not mandate that a defendant must
be informed of a 'right' to parole.
This is especially true
since, unlike the rights specified in Boykin, parole is not a
constitutional right.”
Id. at 500.
The Criminal Rules of Procedure also provide for the
withdrawal of a guilty plea:
“At any time before judgment the
court may permit the plea of guilty or guilty but mentally ill,
to be withdrawn and a plea of not guilty substituted.”
8.10.
RCr
The Edmonds Court went on to explain such procedures as
follows:
Though an RCr 8.10 motion is generally
within the sound discretion of the trial
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court, a defendant is entitled to a hearing
on such a motion whenever it is alleged that
the plea was entered voluntarily. If a
guilty plea is found to have been entered
involuntarily, considering the totality of
the circumstances, a trial court must grant
a defendant's motion to withdraw the plea.
This inquiry is inherently fact-sensitive,
thus this Court reviews such a determination
for clear error, i.e., whether the
determination was supported by substantial
evidence.
189 S.W.3d at 566 (citations omitted).
The Supreme Court examined the voluntariness of guilty
pleas in Bronk v. Commonwealth, 58 S.W.3d 482, 486 (Ky. 2001):
In cases where the defendant disputes his or
her voluntariness, a proper exercise of this
discretion requires trial courts to consider
the totality of the circumstances
surrounding the guilty plea and juxtapose
the presumption of voluntariness inherent in
a proper plea colloquy with a Strickland v.
Washington[, 446 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984),] inquiry into the
performance of counsel:
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 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, 727-27 (Ky.App.
1987).]
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We shall now turn to the case before us.
After having
reviewed the totality of the circumstances surrounding the entry
of plea as well as the hearing on the motion to withdraw the
plea, we hold that the circuit court did not err in determining
that Wyatt's plea was voluntarily entered.
Likewise, we hold
that the circuit court did not abuse its discretion in denying
Wyatt's motion to withdraw his conditional guilty plea.
At the
original guilty plea hearing, the circuit court made a
significant effort to ensure that Wyatt understood the
proceedings and the ramifications of his decision to enter a
plea.
We note that Wyatt graduated from high school and is able
to read, write, and understand the English language.
At the
time of the hearing, Wyatt was not sick, was not suffering from
any mental problems, and was not taking any medication that
would render him unable to understand the proceedings.
Furthermore, Wyatt testified that he had read the Commonwealth's
offer and signed the guilty plea form.
He also indicated that
he had sufficient time to discuss the terms of the plea with his
attorney.
The videotaped record reveals that these discussions
between Wyatt and his attorney continued during the guilty plea
hearing.
We additionally note that Wyatt received a significant
reduction in a possible sentence had he been convicted on all
four charges of the indictment.
The record reflects that Wyatt wanted to withdraw his
plea solely due to his insistence that he was not guilty of the
crimes for which he was charged.
His desire to withdraw his
plea was not related to his attorney's advice about parole
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eligibility, although we note such advice is not a
constitutionally protected Boykin right.
Therefore, we hold
that there is substantial evidence of record to support the
circuit court's finding that Wyatt's plea was entered knowingly,
intelligently, and voluntarily.
Furthermore, the circuit court
did not abuse its discretion in ultimately denying his motion to
withdraw his guilty plea and reinstating the judgment of
conviction.
For the foregoing reasons, the judgment of the Casey
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
J. Brandon Pigg
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Louis F. Mathias, Jr.
Assistant Attorney General
Frankfort, Kentucky
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