PENNINGTON (ANTHONY D.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: OCTOBER 22, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000779-MR
ANTHONY D. PENNINGTON, JR.
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MARY M. SHAW, JUDGE
ACTION NO. 08-CR-000951
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: TAYLOR, CHIEF JUDGE; CLAYTON AND THOMPSON, JUDGES.
THOMPSON, JUDGE: Anthony D. Pennington, Jr. appeals from a judgment of
the Jefferson Circuit Court following his conditional guilty plea to robbery in the
first degree. For the reasons stated herein, we affirm.
On January 1, 2008, Bruce Brown called Louisville Metro Police and
stated that he was the victim of an armed robbery in the Iroquois Homes Housing
Project. When police arrived, Brown described the perpetrator as an AfricanAmerican man, with a slender build, standing approximately 6’2”, and wearing
dark clothing. After searching for the suspect, police located an African-American
male fitting the suspect’s description located on the corner of Cayuga Street and
Oneida Court. The suspect, later identified as Pennington, was subjected to a patdown search and a revolver was found. He was arrested and taken to Brown who
positively identified the suspect as the perpetrator of the robbery.
On March 18, 2008, Pennington was indicted by a Jefferson County
grand jury for robbery in the first degree. He then moved to suppress the show-up
identification arguing that it was conducted in a highly suggestive manner. At the
suppression hearing, Officer Luke Phan testified that Brown informed police that
he had been robbed at approximately 6:30 a.m. According to Officer Phan, he met
Brown at the scene at 6:37 a.m., and Brown stated that the suspect was armed with
a revolver. Brown informed him that the suspect was accompanied by three other
African-American men but that the suspect was significantly taller than the others.
Officer Phan further testified that he observed Pennington fifteen
minutes after speaking with Brown. He noticed Pennington because he was taller
than the man standing beside him and was wearing a thick, black jacket. Officer
Phan further testified that Brown had an opportunity to fully view the perpetrator
during the robbery, had described the perpetrator before his apprehension, and had
fully viewed the perpetrator at the time of the identification.
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After Officer Phan’s testimony, defense counsel called Brown as a
witness, but the prosecutor stated that he had already released Brown for the day
and did not expect him back until the morning for Pennington’s trial. He further
stated that there was sufficient evidence in the record to rule on the suppression
motion. Defense counsel responded that he was unaware of Brown’s release and
suggested that the hearing be continued to the next day to permit Brown to testify.
However, the trial court ruled that Brown’s testimony was unnecessary and denied
the motion, finding that the show-up identification was not unduly suggestive.
The next day, the prosecutor offered Pennington a plea deal in which
it would recommend the minimum sentence for first-degree robbery. Thereafter,
Pennington pled guilty, pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct.
160, 27 L.Ed.2d 162 (1970), to first-degree robbery and reserved his right to appeal
the denial of his motion to suppress. During the plea colloquy, while sitting beside
Pennington, defense counsel read into the record the Commonwealth’s plea offer.
He discussed the ten-year sentence, the application of the violent offender statute,
and that the plea would be a conditional plea with regard to the suppression issue.
Defense counsel further stated that he explained to his client his
constitutional rights, that he explained to his client the facts of his case, and that he
had already read the Commonwealth’s plea offer to his client. Pennington then
stated that he had enough time to consider the offer and desired to plead guilty.
Pennington further stated that he understood the waiver of his constitutional rights,
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was not under the influence of any intoxicant, had sufficient time to consider the
plea and consult with counsel, and was satisfied with counsel’s representation.
Responding to the trial court’s questioning, Pennington stated that his
depression did not affect his decision to plead guilty. Pennington further affirmed
that his counsel did read and discuss the plea offer to him. The trial court then read
the facts of the case from the plea form, stated the ten-year sentence, and explained
the right to appeal the suppression issue. After obtaining Pennington’s affirmation
that he still desired to plead guilty in light of their colloquy, the trial court accepted
Pennington’s plea after finding that it was made voluntarily. Defense counsel then
renewed his motion to permit Brown’s testimony or, alternatively, to admit
Brown’s testimony by avowal. The trial court denied the motion.
On January 23, 2009, Pennington filed a pro se motion to withdraw
his guilty plea contending ineffective assistance of counsel. Subsequently, the trial
court permitted Pennington’s counsel to withdraw and appointed the Office of the
Louisville Metro Public Defender to represent Pennington. At the evidentiary
hearing, Pennington’s appointed counsel argued in favor of the plea withdrawal
motion. However, the trial court denied Pennington’s motion finding that the plea
was entered voluntarily, knowingly, and intelligently. Following this denial, the
trial court sentenced Pennington to ten-years’ imprisonment in accordance with the
recommended sentence contained in the plea agreement. This appeal followed.
Pennington argues that the trial court erred when it denied his motion
to withdraw his Alford plea. He first contends that his plea was involuntary
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because he received ineffective assistance from his counsel. Thus, he contends
that his guilty plea was constitutionally defective and should have been set aside.
Alternatively, he contends that the trial court abused its discretion by denying his
motion to withdraw under the unique circumstances of his case. We disagree.
A trial court may accept a defendant's guilty plea to a criminal charge,
but the plea must be voluntarily made and with an understanding of the nature of
the charge. Edmonds v. Commonwealth, 189 S.W.3d 558, 565 (Ky. 2006). RCr1
8.10 provides that a defendant may withdraw his guilty plea with the permission of
the court before judgment. Williams v. Commonwealth, 229 S.W.3d 49, 51 (Ky.
2007). A motion to withdraw a guilty plea is generally addressed to the sound
discretion of the trial court and is reviewed to determine only if the court abused its
discretion. Commonwealth v. Lopez, 267 S.W.3d 685, 689 (Ky.App. 2008). If a
defendant’s plea was involuntary, a trial court must grant the motion to withdraw
the guilty plea. Rodriguez v. Commonwealth, 87 S.W.3d 8, 10 (Ky. 2002).
The trial court conducted a lengthy plea colloquy with Pennington and
then held an evidentiary hearing regarding Pennington’s motion. Although
Pennington contends that he was not provided discovery and did not understand
that the suppression issue was reserved, his original defense counsel stated that he
informed Pennington of the facts and law of his case. Pennington knew that his
criminal case hinged on the testimony of the lone eyewitness. Additionally,
1
Kentucky Rules of Criminal Procedure (RCr).
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Pennington’s right to appeal the suppression ruling was repeatedly discussed
during the plea colloquy and Pennington stated that he understood.
While Pennington contends that the trial court failed to conduct a
factual inquiry of the plea and his attorney-client relationship, we note that the trial
court observed defense counsel read the plea offer in open court. Counsel then
expressly informed the trial court that he had discussed the facts and law with his
client. The trial court then read over the plea offer for a second time with
Pennington. The trial court then engaged in a lengthy colloquy where Pennington
stated that he was satisfied with counsel’s representation. Therefore, we conclude
that the trial court did not err by finding the plea was voluntary.
We further conclude that the trial court did not abuse its discretion by
denying Pennington’s motion to withdraw his plea. We recognize Pennington’s
claims of illiteracy, depression, and of having a learning disability. However, the
trial court ensured on multiple occasions that he understood his plea. The trial
court further questioned him regarding his depression and obtained counsel’s
confirmation that Pennington was competent to accept the guilty plea. While his
guilty plea was accepted the morning of his trial, his counsel’s statements that he
had previously discussed the plea offer with Pennington established that he had
sufficient time to consider the offer. Additionally, under oath, Pennington stated
that he had sufficient time to confer with counsel regarding his case. Therefore,
the trial court’s denial of Pennington’s motion was an abuse of discretion.
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Pennington next contends that the trial court erred by not suppressing
Brown’s identification of him as a result of an unduly suggestive show-up. He
further contends that the trial court erred by precluding him from introducing the
alleged victim’s testimony and for failing to make any finding concerning the
reliability of the Brown’s identification. We disagree.
When a defendant challenges an identification procedure, the
foremost issue is whether there was a very substantial likelihood of irreparable
misidentification. Parker v. Commonwealth, 291 S.W.3d 647, 662-63 (Ky. 2009).
To determine if a very substantial likelihood of an irreparable misidentification has
occurred, Kentucky courts employ a two-step process. Id. at 663.
We first determine if the circumstances leading to the identification
were “‘unduly suggestive.’” Id., quoting Dillingham v. Commonwealth, 995
S.W.2d 377, 383 (Ky. 1999). “Only if the circumstances were unduly suggestive
do we move on to the next step where we determine if the identification was,
nevertheless, reliable.” Id. Thus, we ask whether the witness likely would have
been able to identify the defendant even if a proper photographic identification
procedure had been utilized. Moore v. Commonwealth, 569 S.W.2d 150, 153 (Ky.
1978). In step two, we analysis the following five factors:
(1) the opportunity of the witness to view the criminal at
the time of the crime, (2) the witness' degree of attention,
(3) the accuracy of the witness' prior description of the
criminal, (4) the level of certainty demonstrated by the
witness at the confrontation, and (5) the length of time
between the crime and the confrontation.
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Id. We review a trial court’s ruling regarding the admissibility of a witness's
identification under an abuse of discretion standard. Id.
Officer Phan testified at the suppression hearing and reiterated what
Brown told him and what is contained in Brown’s written victim statement.
According to this testimony, Brown had a good opportunity to observe
Pennington’s face. Regarding his degree of attention, Brown heard Pennington
yell to his three friends that he was going to rob “this paperboy and take his bike.”
When Brown turned, Pennington pulled out his gun and displayed it to Brown. He
pleaded to Pennington not to shoot him because he had a family and children.
As to the accuracy of the prior description, Brown’s description of the
suspect and the type of gun used matched Pennington and the gun found in his
possession. Next, Brown appeared to have positively identified Pennington with
relative ease and also identified Pennington’s gun. Finally, only approximately
fifteen minutes of time separated the robbery and the show-up identification.
Accordingly, based on the totality of the facts, we cannot conclude that the trial
court abused its discretion by admitting Brown’s show-up identification.
Regarding Pennington’s denied request to call Brown as a witness, a
defendant has a constitutional right to present witnesses and evidence in his own
defense. Jones v. Commonwealth, 237 S.W.3d 153, 159 (Ky. 2007). Under the
Sixth Amendment to the United States Constitution, a defendant must be able to
confront witnesses against him and to compel the testimony of witnesses in his
favor. Crawley v. Commonwealth, 107 S.W.3d 197, 199 (Ky. 2003). However, a
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“defendant's Sixth Amendment right to compulsory process must yield to
legitimate demands of the adversarial process...” Combs v. Commonwealth, 74
S.W.3d 738, 745 (Ky. 2002).
For example, hearsay testimony is admissible during a suppression
hearing even if this testimony would not be admissible at trial. United States v.
Raddatz, 447 U.S. 667, 679, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). The court
explained that the interests involved at a suppression hearing are of a lesser
magnitude than those interests involved in a criminal trial. Id. Thus, the trial court
did not err by denying Pennington’s motion to call Brown as a witness. The record
demonstrates that the substance of Brown’s knowledge regarding the crime and
identification were introduced by hearsay testimony from Officer Phan.
Additionally, because Officer Phan conducted the show-up identification, he was
in a position to provide other relevant testimony to Pennington. Finally, we note
that Pennington has cited no authority contrary to our conclusion.
For the foregoing reasons, the judgment of conviction of the Jefferson
Circuit Court is affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Elizabeth B. McMahon
Assistant Public Defender
Office of Louisville Metro
Public Defender
Louisville, Kentucky
Jack Conway
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
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