JONES (CHRIS) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 25, 2008; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-000235-MR
CHRIS JONES
v.
APPELLANT
APPEAL FROM LIVINGSTON CIRCUIT COURT
HONORABLE BILL CUNNINGHAM, JUDGE
ACTION NO. 04-CR-00031
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION AND ORDER
AFFIRMING IN PART,
REVERSING AND REMANDING IN PART,
AND DENYING MOTION TO DISMISS
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; CAPERTON AND MOORE, JUDGES.
MOORE, JUDGE: Chris Jones appeals the Livingston Circuit Court’s judgment convicting him
of flagrant non-support. Specifically, he appeals the circuit court’s denial of his motion to
withdraw his guilty plea and the court’s failure to hold a competency hearing. Additionally, the
Commonwealth moves to dismiss this appeal as moot. After a careful review of the record, we
deny the motion to dismiss, affirm the circuit court’s failure to hold a competency hearing, and
reverse and remand the remainder of the court’s judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Jones was indicted on the charge of flagrant non-support. His counsel
subsequently moved for a psychological/psychiatric evaluation because Jones intended “to rely
on a defense of mental disease or defect as prescribed in KRS 504.070.”
Several weeks later, the Commonwealth’s written offer on a plea of guilty was
entered into the record, wherein the Commonwealth offered to recommend a five-year sentence,
probated for five years, if Jones pled guilty. That same day, Jones withdrew his motion for a
psychological/psychiatric evaluation and moved to enter a guilty plea in accordance with the
Commonwealth’s offer.
During his plea colloquy, the circuit court asked Jones, inter alia, if he then
suffered from, or if he ever suffered from, a mental disease or defect, and Jones responded that
he did not. The court accepted Jones’s plea and postponed sentencing for approximately one
month so that a presentence investigation report could be prepared.
At the sentencing hearing, the court noted that Jones’s presentence report had
been reviewed and the court stated that, due to Jones’s “lengthy record,” it believed it was
inappropriate to probate Jones’s sentence. However, the court decided to continue the case for
six months to see if Jones complied with his support payment obligation during that time. The
court further explained that, after the six months was over, if Jones had complied with his child
support obligation during those six months, the case would be continued for another six months.
This would continue, and the court explained that Jones would be “in limbo” so long as he
continued to pay his minimum child support obligation. However, if he failed to comply, the
court stated that it would either set aside the plea and allow Jones to go to trial, or “sentence
[him] without probation, depending on [Jones’s] option.”
After six months had passed, another hearing was held. During this hearing,
Jones admitted that he had not paid child support since his initial sentencing hearing. Jones’s
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counsel stated that if the court would grant probation, as initially recommended by the
Commonwealth, Jones would prefer probation. Jones’s counsel explained that if the court still
decided not to grant probation, then Jones would want to withdraw his guilty plea. The
Commonwealth reminded the court that Jones had not paid any child support in the last six
months. Jones stated that he was hoping to seek medical attention to get help for his anxiety and
depression.1
The court reminded counsel that it had not accepted the recommendation of
probation due to Jones’s criminal record. The court further opined that there was a “tacit
agreement” at the original sentencing hearing wherein Jones agreed to abandon his motion to
withdraw his guilty plea if the court continued the sentencing hearing so long as he paid his child
support obligation. Thus, the court informed Jones that he would be sentenced that day because
he had failed to pay child support. Jones was then sentenced to serve five years of
imprisonment.
Jones now appeals, contending that: (1) the circuit court abused its discretion by
denying his motion to withdraw his guilty plea because the court had represented to Jones that he
could withdraw his plea at a later date; (2) the circuit court erred by failing to hold a competency
hearing. Additionally, the Commonwealth has filed a motion to dismiss this appeal for
mootness.
II. ANALYSIS
A. COMMONWEALTH’S MOTION TO DISMISS APPEAL
We will first address the Commonwealth’s claim that this appeal should be
dismissed as moot because Jones obtained shock probation approximately three months after the
court sentenced him to five years of imprisonment. Specifically, the Commonwealth contends
This appears to have been the first time that Jones made any mention of the particulars of his alleged psychiatric
problems. His counsel earlier requested a psychological/psychiatric evaluation because Jones was allegedly
planning to assert a defense of mental disease or defect, but it does not appear that any explanation was provided
concerning the details of what that mental disease or defect allegedly was and, at his plea colloquy, after
withdrawing his motion for a psychological/psychiatric evaluation, Jones swore that he never had a mental disease
or defect.
1
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that this appeal is moot because Jones “received the benefit of the bargain under his plea
agreement with the Commonwealth, . . . [as he was] released from his commitment to the
Calloway County Jail and is now on probation for his offense.” The Commonwealth notes that
Jones “states that he wishes to withdraw his guilty plea and proceed to trial at this point;
however, this would be fruitless in that he has now received the sentencing he agreed to receive,
and withdrawing his guilty plea would serve no purpose other than delay.”
Jones opposes the Commonwealth’s motion to dismiss the appeal, arguing that the
Commonwealth “fails to appreciate the arguments” raised in his brief, and that the
Commonwealth “ignores the fact that a motion for psychiatric examination” was filed in the trial
court before Jones entered his guilty plea.
“A ‘moot case’ is one which seeks to get a judgment on a pretended controversy,
when in reality there is none . . . .” Winslow v. Gayle, 172 Ky. 126, 188 S.W. 1059 (Ky. 1916)
(internal quotation marks omitted). “The classic occurrence which necessitates a court’s
abrogation of jurisdiction for mootness is a change in circumstance in the underlying controversy
which vitiates the vitality of the action.” Commonwealth v. Hughes, 873 S.W.2d 828, 830 (Ky.
1994). “Mootness exists in the issuance of injunctions only where events make it absolutely
clear the allegedly wrongful behavior could not reasonably be expected to recur.”
Commonwealth, ex rel Stephens v. Isaacs, 577 S.W.2d 617, 618 (Ky. App. 1979) (internal
quotation marks omitted).
Jones now is receiving the benefit of his bargain, i.e., he is on probation, which is
what the Commonwealth recommended in exchange for his guilty plea. However, Jones did not
initially receive the benefit of his bargain, as the circuit court found probation to be inappropriate
and sentenced Jones to serve five years of imprisonment. The court did not permit Jones to
withdraw his guilty plea, which Jones claims he was entitled to do, and he apparently persists in
his claim that he wants to withdraw his guilty plea, despite the fact that he is currently on shock
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probation. Thus, his claim is not moot. Additionally, Jones claims that a competency hearing
should have been held in the circuit court. The fact that Jones is now on probation does not
render his competency hearing claim moot. Therefore, the Commonwealth’s motion to dismiss
the appeal due to mootness is denied.
B. JONES’S CLAIM CONCERNING FAILURE TO HOLD COMPETENCY HEARING
We will next address Jones’s claim that the circuit court erred by failing to hold a
competency hearing. Pursuant to KRS 504.090, “[n]o defendant who is incompetent to stand
trial shall be tried, convicted or sentenced so long as the incompetency continues.” Additionally,
KRS 504.100 provides:
(1) If upon arraignment, or during any stage of the proceedings, the
court has reasonable grounds to believe the defendant is
incompetent to stand trial, the court shall appoint at least one (1)
psychologist or psychiatrist to examine, treat and report on the
defendant’s mental condition.
(2) The report of the psychologist or psychiatrist shall state
whether or not he finds the defendant incompetent to stand trial. If
he finds the defendant is incompetent, the report shall state:
(a) Whether there is a substantial probability of his attaining
competency in the foreseeable future; and
(b) What type treatment and what type treatment facility the
examiner recommends.
(3) After the filing of a report (or reports), the court shall hold a
hearing to determine whether or not the defendant is competent to
stand trial.
The standard of review in a case where the circuit court failed to hold a
competency hearing is: “Whether a reasonable judge, situated as was the trial court judge whose
failure to conduct an evidentiary hearing is being reviewed, should have experienced doubt with
respect to competency to stand trial.” Mills v. Commonwealth, 996 S.W.2d 473, 486 (Ky. 1999)
(internal quotation marks omitted).
An incompetency hearing is only required when the trial judge is
presented with sufficient evidence of reasonable doubt of
competency to stand trial. If no reasonable grounds exist for
doubting a defendant's competency, no error occurred in not
holding a hearing. Reasonable grounds must be called to the
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attention of the trial court or must be so obvious that the trial judge
cannot fail to be aware of them.
Lear v. Commonwealth, 884 S.W.2d 657, 659 (Ky. 1994) (internal citations omitted).
In Bishop v. Caudill, 118 S.W.3d 159 (Ky. 2003), the Kentucky Supreme Court
noted that in Godinez v. Moran, 509 U.S. 389, 396, 113 S. Ct. 2680, 2685, 125 L. Ed. 2d 321
(1993),
the United States Supreme Court held that a defendant is
competent if he can “consult with his lawyer with a reasonable
degree of rational understanding” and has “a rational as well as
factual understanding of the proceedings against him.” The Court
noted that a competent defendant can make a “reasoned choice”
among the alternatives available to him when confronted with such
crucial questions as whether he should testify, waive a jury trial,
cross-examine witnesses, put on a defense, etc.
Bishop, 118 S.W.3d at 162-63 (quoting Godinez, 509 U.S. at 397-98, 113 S. Ct. at 2686).
In a competency determination, there are two matters for a court to examine:
(1) whether the defendant is sufficiently coherent to provide his
counsel with information necessary or relevant to constructing a
defense; and
(2) whether he is able to comprehend the significance of the trial
and his relation to it. The defendant must have an ability to confer
intelligently, to testify coherently, and to follow the evidence
presented. It is necessary that the defendant have a rational as well
as a factual understanding of the proceedings.
Would defendant recognize false testimony by a witness and
would he know to advise counsel of that fact? Does he understand
the roles of trial participants (i.e. that the prosecutor is his
adversary, that the judge decides his fate, that his counsel acts in
his best interest, etc.)? Does he understand that convictions will
result in sanctions? The inquiry is a factual one that necessarily
depends upon the peculiar facts and circumstances of the case.
Id. at 163 (internal quotation marks omitted).
Jones alleges that a competency hearing should have been held because he had
moved for a psychological/psychiatric evaluation before he entered his guilty plea. His counsel’s
basis for filing that motion was because, at that time, Jones intended to raise a defense of mental
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disease or defect. However, counsel later withdrew the motion and, during the plea colloquy,
Jones was specifically asked whether he currently had, or had ever suffered from, a mental
disease or defect. Jones’s sworn response was that he had never suffered from a mental disease
or defect. Additionally, during the plea colloquy, Jones responded appropriately to the court’s
inquiries of him, and he provided no reason for the court to doubt his competency.
During his sentencing hearing, Jones made an unsworn statement indicating that
he suffered from anxiety and depression, and he wanted to obtain medical treatment for those
problems. However, this does not constitute “sufficient evidence of reasonable doubt of
competency to stand trial.” Lear, 884 S.W.2d at 659. In fact, to our knowledge, Jones provided
absolutely no evidence that would lead the circuit court to have reasonable doubt of his
competency. His counsel merely filed a motion for a psychological/psychiatric evaluation
because Jones allegedly claimed he was going to rely on a defense of mental disease or defect,
but this motion does not amount to “evidence.” Additionally, Jones’s unsworn statement during
his sentencing hearing indicating that he suffered from anxiety and depression may have possibly
been used as a defense to the charge against him, but it failed to show that he did not understand
what was happening in the proceedings, nor did it show that he was incompetent to stand trial.
Furthermore, because Jones swore during his plea colloquy that he had never suffered from a
mental disease or defect, the circuit court had no reason to doubt Jones’s competency.
Therefore, the circuit court did not err when it failed to hold a competency hearing.
C. JONES’S CLAIM REGARDING DENIAL OF MOTION TO WITHDRAW GUILTY
PLEA
Finally, Jones claims that the circuit court erred when it denied his motion to
withdraw his guilty plea. Pursuant to RCr2 8.10,
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.
2
Kentucky Rule of Criminal Procedure
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If the court rejects the plea agreement, the court shall, on the
record, inform the parties of this fact, advise the defendant
personally in open court or, on a showing of good cause, in
camera, that the court is not bound by the plea agreement, afford
the defendant the opportunity to then withdraw the plea, and
advise the defendant that if the defendant persists in that guilty
plea the disposition of the case may be less favorable to the
defendant than that contemplated by the plea agreement.
(Emphasis added).
Thus, once a trial court has determined “that it will not follow the plea agreement
made between the prosecutor and the defendant, the defendant has a right to withdraw the guilty
plea without prejudice to the right of either party to go forward from that point.” Kennedy v.
Commonwealth, 962 S.W.2d 880, 882 (Ky. App. 1997) (internal quotation marks omitted).
The language of RCr 8.10 is clearly mandatory and requires a court
to permit a defendant to withdraw a guilty plea if the court rejects
the plea agreement. We recognize that the trial court has ultimate
sentencing authority and that it is not bound by the plea
negotiations of the Commonwealth or the plea bargain itself.
However, RCr 8.10 does not usurp nor does it infringe upon this
discretionary power. The rule does not require the trial court to
“rubber stamp” plea agreements; the decision to accept or reject
the plea agreement remains the sole province of the trial court.
However, RCr 8.10 does require the court to afford the defendant
the opportunity to withdraw his plea when and if the court elects to
deviate from the plea agreement.
Id. (internal citation omitted).
In the present case, the parties agreed that if Jones pled guilty to the charge of
flagrant non-support, the Commonwealth would recommend a probated sentence, and both
parties abided by this agreement in open court during the plea colloquy. However, at the
subsequent sentencing hearing, the court informed Jones that, due to his “lengthy record,” the
court believed it was inappropriate to probate his sentence. The court then informed Jones as
follows: “. . . considering . . . the Commonwealth . . . recommended probation, the court is going
to continue this case for a period of six months [and] if you continue[3] to comply with the
payments, we’ll take another look at it then.” Jones’s counsel responded “okay.” The court then
3
Jones apparently made a child support payment shortly before the sentencing hearing.
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continued, stating: “Instead of having him withdraw his plea, we’ll just wait and see if he can
comply with the terms and continue” the case.
At the close of this original sentencing hearing, the court informed Jones as
follows: “. . . you’ll be in limbo as long as you can continue to make these payments. If you
don’t, then the court will either set aside the plea and let you to go to trial, or I will sentence you
without probation, depending on your option, okay?”
Months later, at the continued sentencing hearing, Jones acknowledged that he
had not made child support payments since the initial sentencing hearing. His counsel asked that
the court grant him probation, as recommended by the Commonwealth pursuant to the plea
agreement, or allow Jones to withdraw his guilty plea. The circuit court stated:
the court is of the opinion that . . . the court didn’t accept the
recommendation of probation because of your criminal record, and
. . . I think there was at least a tacit agreement here that day still
[to] let you withdraw your plea, I don’t know whether I gave you
that option or not, was a tacit agreement that . . . you . . . were
willing to go along with a continued . . . sentencing, and that . . .
you were going to make some payments, and I feel that, because of
that, the Commonwealth’s no longer obligated to its
recommendation. Therefore, the court must sentence you today in
accordance with your plea.
Pursuant to RCr 8.10, we find that the circuit court should have permitted Jones to
withdraw his guilty plea because the court declined to accept the Commonwealth’s
recommendation of probation made pursuant to the plea agreement. See Kennedy, 962 S.W.2d at
882. Further, the court explicitly stated during the original sentencing hearing that if Jones failed
to continue making child support payments during the following six months, the court would
either set aside his plea and let him proceed to trial, or sentence him without probation,
depending on Jones’s choice. The court subsequently failed to abide by this when it refused to
allow him to withdraw his plea. Therefore, the court erred when it denied Jones’s request to
withdraw his guilty plea. Id.
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Accordingly, we ORDER that the Commonwealth’s motion to dismiss this appeal
is DENIED. We affirm in part the Livingston Circuit Court’s judgment, to the extent that the
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circuit court failed to hold a competency hearing; and reverse the remainder of the circuit court’s
judgment and remand that part with instructions that Jones be permitted to withdraw his guilty
plea and to proceed to trial on the charge of flagrant non-support.
ALL CONCUR.
ENTERED:
July 25, 2008
/s/ Joy A. Moore
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Linda Roberts Horsman
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General
Joshua D. Farley
Assistant Attorney General
Frankfort, Kentucky
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