ROUSE (TIMOTHY) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: SEPTEMBER 5, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM FULTON CIRCUIT COURT
HONORABLE CHARLES W. BOTELER, JR., JUDGE
ACTION NO. 06-CR-00013
COMMONWEALTH OF KENTUCKY
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BEFORE: VANMETER AND WINE, JUDGES; LAMBERT,1 SENIOR JUDGE.
LAMBERT, SENIOR JUDGE: Appellant, Timothy Rouse, appeals from the
Fulton Circuit Court’s order denying his motion to withdraw a prior plea of guilty.
Appellant claims that he was not informed of the probation restrictions applicable
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief
Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised
to his sentence, rendering his plea involuntary. Discerning no clear error in the
trial court’s denial of the requested relief, we affirm.
Appellant was charged with complicity to the offenses of firstdegree burglary, robbery, and assault. He was also charged with theft by unlawful
taking and with two counts of unlawful transaction with a minor in the second
degree. Initially, Appellant entered a plea of not guilty. Counsel was appointed
after a determination that Appellant was indigent. However, as a result of
Appellant’s continued insistence upon representing himself, the trial court
designated counsel as “stand-by” counsel pursuant to Faretta v. California, 422
U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). This technique, often termed
“hybrid representation,” secures the right to representation afforded by Section 11
of the Kentucky Constitution. Deno v. Commonwealth, 177 S.W.3d 753 (Ky.
2005); Hill v. Commonwealth, 125 S.W.3d 221 (Ky. 2004).
After the first day of trial, Appellant and the Commonwealth
reached a plea agreement. Before accepting Appellant’s guilty plea, the trial court
properly observed the procedures established in Boykin v. Alabama, 395 U.S. 238,
89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and determined that Appellant’s guilty plea
was voluntary and intelligent. Under the terms of the agreement, Appellant pled
guilty to complicity to first-degree robbery and first-degree assault in exchange for
a sentence recommendation of ten years on each count. The Commonwealth
amended the burglary charge to second degree and Appellant pled guilty to the
lesser degree in exchange for a recommended sentence of seven and one-half
years. The recommendation was to be that the sentences were to run consecutively
for a total of 27 years and six months. Pursuant to the plea agreement, the three
remaining charges were dismissed.
However, after acceptance of the plea, but before sentencing and final
judgment, Appellant sought withdrawal of the plea pursuant to RCr 8.10.2 RCr
8.10 provides that the court may permit a guilty plea to be withdrawn at any time
before judgment. Whether to permit withdrawal of a plea is a decision subject to
the sound discretion of the trial court. Notwithstanding, a hearing is required upon
an allegation that the original plea was entered involuntarily. Edmonds v.
Commonwealth, 189 S.W.3d 558 (Ky. 2006); Rodriguez v. Commonwealth, 87
S.W.3d 8 (Ky. 2002). In the case at bar, Appellant claimed that his plea was not
freely and voluntarily entered because he was unaware that the violent offender
parole and probation restrictions would apply to his sentence.
Violent offender status arises from the commission of certain
offenses. It is explicitly applicable where commission of the offense is established
by a guilty plea or by conviction. KRS 439.3401(1).3 Two of the three offenses to
which Appellant pled guilty are violent offenses under KRS 439.3401. Namely, a
Class B felony is a violent offense where it involves death or serious physical
Kentucky Rules of Criminal Procedure.
Kentucky Revised Statutes.
injury to a victim. KRS 439.3401(1)(c). First-degree assault is a Class B felony
pursuant to KRS 508.010(2) and the trial court noted that the victim here suffered
serious physical injury. First-degree robbery is also among the offenses deemed to
be violent offenses by KRS 439.3401(1)(l).4 Classification as a violent offender
carries with it substantial restrictions on probation and parole eligibility. Based on
Appellant’s offenses, violent offender classification renders him ineligible for
probation or parole until 85% of the imposed sentence has been served. KRS
Following Appellant’s assertion that his plea was involuntary due to
his misapprehension concerning the probation restrictions, the trial court held a
hearing, but ultimately denied Appellant’s request to withdraw the plea. Both
Appellant and his stand-by counsel testified at the hearing. Stand-by counsel
testified that he informed Appellant numerous times prior to the plea that
Appellant would be required to serve 85% of his sentence.
Appellant acknowledged that he was aware that his offenses were
classified as violent offenses and that, upon conviction, he would be required to
serve 85% of his sentence. However, he claimed to have believed that the
restrictions would be inapplicable if he pled guilty. Appellant gave no explanation
for this peculiar assumption. While Boykin and its progeny require an
understanding of the proceeding, “the requirement that a plea be intelligently and
First-degree robbery did not automatically render the offender a violent one until 2002.
As Appellant’s offenses occurred in 2006, the violent offender statute applies. KRS
voluntarily made does not impose upon the trial judge a duty to discover and dispel
any unexpressed misapprehensions that may be harbored by a defendant. This is
especially true as to mistaken assumptions for which there is no reasonable basis.”
Edmonds, 189 S.W.3d at 567, n.5 (quoting Armstrong v. Egeler, 563 F.2d 796, 800
(6th Cir. 1977)).
Whether a plea is found to be voluntarily entered, considering the
totality of the circumstances is a fact-sensitive inquiry, rendering our standard of
review one of clear error. Edmonds, 189 S.W.3d 558. The record in the instant
case reveals substantial evidence supporting the trial court’s decision, including the
trial court’s references to the Boykin hearing, wherein Appellant admitted that he
had been informed of the full range of penalties as well as the post-plea hearing,
wherein stand-by counsel averred that he had repeatedly explained to Appellant
that 85% of his sentence would have to be served prior to parole or probation
Finally, even if one assumes that Appellant truly did not realize that
the restrictions would be applicable if he pled guilty, that fact alone would not be
sufficient to render his plea involuntary. Appellant correctly notes that a guilty
plea is involuntary where the defendant lacked full awareness of its direct
consequences. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d
747 (1970). However, the Kentucky Supreme Court has explicitly rejected the
contention that parole eligibility constitutes a direct consequence that would render
a plea involuntary. Edmonds, 189 S.W.3d 558.
In view of the substantial evidence supporting the trial court’s
determination that Appellant’s guilty plea was freely and voluntarily entered, the
trial court’s decision is affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Attorney General of Kentucky
Michael L. Harned
Assistant Attorney General