MOUNCE (APRIL LYNN) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JANUARY 14, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001009-MR
APRIL LYNN MOUNCE
v.
APPELLANT
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE JEFFREY T. BURDETTE, JUDGE
ACTION NO. 07-CR-00243
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE: CLAYTON, DIXON, AND WINE, JUDGES.
CLAYTON, JUDGE: This is an appeal of the imposing of a sentence after a guilty
plea. Based upon the following, we affirm the decision of the trial court.
BACKGROUND INFORMATION
On September 20, 2007, appellant April Mounce, pled guilty to one
count of Complicity to Trafficking in a Controlled Substance in the First Degree in
Pulaski Circuit Court. Mounce had entered into a plea agreement with the
Commonwealth which provided that in exchange for the recommendation by the
Commonwealth that she receive probation, she would cooperate with an
investigation, stay out of trouble and not obtain any new criminal charges.
The Commonwealth contends that, prior to sentencing, Mounce
violated the conditions of her plea agreement and, as a result, on January 17, 2008,
the Commonwealth informed the trial court that it was going to withdraw the
recommendation of probation based upon its allegation that Mounce had failed to
provide truthful information and that she had possibly been using illegal drugs
while awaiting sentencing. The Commonwealth requested a drug test on Mounce.
A hearing was conducted at which the drug test results were presented
to the court and the court determined that Mounce had violated the conditions of
her plea agreement. The court gave the Commonwealth leave to withdraw its
motion for probation and also denied Mounce’s motion to withdraw her guilty
plea. Mounce was then sentenced by the trial court to ten years’ imprisonment.
Mounce filed an appeal with this Court after her ten-year sentence
was imposed. She was represented by counsel and dismissed her appeal after
entering into an agreement with the Commonwealth as follows:
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I understand that the Commonwealth has offered to settle
my case. In exchange for my agreement to dismiss my
appeal, the Commonwealth has agreed to recommend
that the court amend my sentence to ten years in prison,
probated for five years, with the standard package of
probation conditions. I have discussed the pros and cons
of the Commonwealth’s offer with my attorney, Jamesa
J. Drake. I understand that if I accept the offer and
dismiss my appeal, and then violate any of the conditions
of my probation, I will serve ten years in prison (minus
the time that I have already served). I understand the
risks that are involved in accepting the Commonwealth’s
offer.
I will agree to dismiss my appeal in exchange for the
Commonwealth’s agreement to ask the trial court to
amend my sentence to ten years in prison, probated to
five years.
Mounce then brought this appeal. She also filed several Kentucky
Rules of Civil Procedure (CR) 60.02 motions with the trial court, all of which were
denied.
STANDARD OF REVIEW
Whether a criminal defendant has knowingly and intelligently waived
his or her fundamental rights by pleading guilty is a question of law as such is a
fundamental constitutionally protected right. Brewer v. Williams, 430 U.S. 387,
403, 97 S. Ct. 1232, 1242, 51 L. Ed. 2d 424 (1977). Questions of law are subject
to de novo review. Western Kentucky Coca-Cola Bottling Co., Inc. v. Revenue
Cabinet, 80 S.W.3d 787, 790 (Ky. App. 2001).
DISCUSSION
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Mounce argues that she did not knowingly and intelligently waive any
of her fundamental constitutional rights. While she agrees that she was acting
voluntarily, she argues that one can do so and still not enter a plea knowingly and
intelligently. Schneckloth v. Bustamonte, 412 U.S. 218, 238 n. 25, 93 S. Ct. 2041,
2053, 36 L. Ed 2d 854 (1973). The Commonwealth, however, points to the fact
that Mounce, with the assistance of counsel, agreed to refrain from filing an appeal
based upon her guilty plea and waiver of indictment. While Mounce now contends
that her original guilty plea was not entered into knowingly and intelligently (but
was voluntary), any such argument would clearly be a nullity given that she was
represented by counsel when she agreed to drop her appeal. Mounce cannot now
argue that her original plea was not knowingly and intelligently entered. Thus, we
affirm the entry of the sentence by the trial court and dismiss Mounce’s appeal.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Steven Jared Buck
Assistant Public Advocate
Frankfort, Kentucky
Joshua D. Farley
Frankfort, Kentucky
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