IRVIN THOMAS JENKINS, JR . V. COMMONWEALTH OF KENTUCKY
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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINIONIS DESIGNA TED "NOT TO BE
PUBLISHED." PURSUANT TO THE RULES OF
CIVIL PROCED URE PROMUL GATED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS A UTHORITY IN ANY OTHER
CASE IN ANY CO UR T OF THIS STA TE.
RENDERED : APRIL 24, 2003
NOT TO BE PUBLIS
~1I~.1XEI1tE l'LIIIIYf
of `
2002-SC-0185-MR
IRVIN THOMAS JENKINS, JR.
V.
U
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE THOMAS STEVEN BLAND, JUDGE
95-CR-00018
APPELLEE
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Irvin Thomas Jenkins, Jr. pled guilty in Hardin Circuit Court to
ten counts of first degree rape and five counts of first degree sodomy for acts
committed against his fifteen year old stepdaughter . He was sentenced to 270 years
imprisonment. He appeals as a matter of right .'
On May 4, 2001, he pled guilty to fifteen felony counts . Thereafter,
Appellant wanted to withdraw his pleas, and a motion to withdraw the pleas was filed by
his new counsel . On June 21, 2001, the trial court held a hearing on the motion and
subsequently overruled the motion . At a penalty phase hearing on July 9, 2001, held by
the trial court without a jury as agreed by the parties, Appellant stated that he had not
wanted to plead guilty, but had done so only at the insistence of his former counsel .
1 Ky. Const . ยง110(2)(b).
Appellant stated that he had not raped the fifteen year old victim, but had engaged in
consensual sexual intercourse with her. The trial court then sentenced Appellant to
eighteen years on each of the counts, to run consecutively for a total of 270 years .
Appellant's first claim of error is that the trial court improperly refused to
let him withdraw his guilty pleas. He maintains that the voluntariness of the pleas is
suspect because they were entered `blind,' i .e ., without any sentencing
recommendation from the prosecution . He contends that "there was no perceived
benefit" for him to enter such pleas, that a "reasonable defendant, acting knowingly and
intelligently" would have had a jury trial, "especially considering the sentence decided
upon at the penalty phase ." He thus concludes that the guilty plea "was not the act of a
rational defendant."
Appellant's contention is not persuasive. There was a reasonable benefit
to the guilty pleas, i.e., that Appellant would not have to face jury recommended
sentencing on strong evidence of offensive crimes committed against a minor. At the
time of the plea, Appellant was faced with compelling testimony against him not only by
his accuser but also by his co-defendant who was present during several of the
offenses . Appellant also admitted repeatedly that he had committed the acts.
Appellant also stated that he pled guilty to save the families from having to go through a
trial . Thus, there is no merit in Appellant's contention that he was not rational in
entering the plea .
Moreover, the severity of the ultimate sentence does not determine the
prior rationality of the decision to plead guilty. If we adopted Appellant's logic, guilty
pleas would have to be vacated in every guilty plea in which a long sentence was
imposed, upon the reasoning that the decision to plead guilty was not rational . The
voluntariness of a plea is determined at the time of the plea, not when the penalty is
determined . Appellant was advised by his counsel at the time, prior to the pleas, that
the penalty could be well over 100 years. Thus, Appellant was aware that he faced a
long term of imprisonment .
Appellant further argues that one of the trial court's comments during the
penalty phase indicates that Appellant was confused when he pled guilty . The trial
court's comment was: "I'm not sure that [Appellant] is able to understand the
truthfulness of these acts and what really occurred ." Appellant has taken this statement
out of context, however . The statement was made after Appellant acknowledged
having had sex with his fifteen year old stepdaughter, but then stated his belief that it
was not rape . The trial court's comment refers to Appellant's belief that the acts
inflicted upon the minor were consensual, and his resulting belief that the acts were not
rape .
A guilty plea is valid when it is entered intelligently and voluntarily .2 The
validity of a guilty plea is not determined by incantation of specific phrases, but from the
totality of the circumstances surrounding the plea .3 This is an inherently factual inquiry
requiring consideration of the accused's demeanor, background, experience, and
whether the record reveals the plea was voluntary. Pursuant to RCr 8 .10, the trial
court may permit the plea to be withdrawn . The language of the rule is permissive .
2 Bronk v. Commonwealth, Ky., 58 S.W.3d 482, 486 (2001).
3 Kotas v. Commonwealth, Ky., 565 S .W.2d 445, 447(1978)(citing Brady v. United
States, 397 U.S . 742 (1970)).
onk at 487;D .R. v. Commonwealth , Ky.App., 64 S.W.3d 292, 294 (2001)(citing
B
Sparks v. Commonwealth , Ky.App ., 721 S.W .2d 726 (1986)) .
3
Thus this decision is within the trial court's discretion . 5 Here, Appellant failed to make a
sufficient showing that his pleas were not voluntary. Accordingly, the trial court's refusal
to permit the pleas to be withdrawn was no abuse of discretion.
Appellant's next claim of error is that the trial court incorrectly sentenced
him to 270 years . He argues that KRS 532.110(1)(c) limits a term of years to the
longest aggregate consecutive sentence authorized by KRS 532.080(6)(a) for the
highest class of crime for which any of the sentences is imposed, i .e ., fifty years .
However, the Commonwealth points out that KRS 532.110 was not adopted until 1998,
and Appellant was indicted for offenses occurring from 1992 to 1994 . The
Commonwealth observes that KRS 446 .110 allows the application of newly authorized
penalties when they are mitigating, and when the defendant's consent is given ; but that
no such consent was given here, and thus that the claim was unpreserved .
In Commonwealth v. Phon6, this court construed KRS 446 .110 and
recognized that if new law mitigates punishment, upon consent, a party may have
benefit of the new law. Appellant's case appears to fall within this provision, but he did
not inform the court nor assert any claim under KRS 446 .110. No conceivable trial
strategy would have suggested foregoing the clearly ameliorative effect of KRS 446.110
on Appellant's sentence . Nevertheless, as the issue was not presented and is thus not
preserved, the final judgment will be affirmed .'
All concur, except Cooper, J ., not sitting .
5
Bronk at 486; Anderson v. Commonwealth , Ky., 507 S .W .2d 187, 188 (1974)(citing
Hurt v. Commonwealth, Ky., 333 S.W .2d 951 (1960)) .
Ky., 17 S .W.3d 106 (2000).
7 See Lawson v. Commonwealth , Ky ., 53 S.W .3d 534, 550-51(2001) .
4
COUNSEL FOR APPELLANT :
Robert C. Bishop
Robert C . Bishop & Associates, PLLC
165 West Lincoln Trail Blvd .
Radcliff, KY 40160
COUNSEL FOR APPELLEE :
A. B . Chandler III
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
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