TERRY ROACH V. COMMONWEALTH OF KENTUCKY
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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNA TED "NOT TO BE
PUBLISHED. " PURSUANT TO THE RULES OF
CIVI_L PR OCED URE PR OMUL GA TED B Y THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOTBE
CITED OR USED AS A UTHORITYIN ANY OTHER
CASE INANY COURT OF THIS STATE.
RENDERED : DECEMBER 18, 2003
NOT TO BE PUBLISHED
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2003-SC-0013-TG
APPELLANT
TERRY ROACH
V.
APPEAL FROM McCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
2001-CR-0037
APPELLEE
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Terry Roach, pled guilty to murder and first-degree robbery. Pursuant
to the plea, he was sentenced to two concurrent sentences of twenty-five years'
imprisonment. His appeal comes before this Court as a matter of right. Ky. Const. ยง
110(2)(b) . Appellant argues that his due process rights were violated as a result of the
trial court's refusal to allow him to withdraw his guilty plea. Secondly, Appellant argues
that there was an invalid waiver of his right to be sentenced by a jury. We disagree and
affirm .
On January 30, 2001, Appellant robbed and murdered Clifford Donald Robinson .
Appellant pled not guilty to both charges and later the Commonwealth gave notice that it
would seek the death penalty. The trial was to begin on June 3, 2002, when defense
counsel informed the court that a plea agreement had been reached . After a lengthy
colloquy between the judge, defense counsel, and Appellant, the court accepted
Appellant's guilty plea and set a date for sentencing . On August 8, 2002, without
apparent notice to anyone, Appellant moved to withdraw his guilty plea based on an
unspecified claim of coercion . The trial court denied Appellant's motion and imposed
the Commonwealth's recommended sentence . This appeal followed .
Appellant argues that his due process rights were violated by the trial court's
refusal to allow him to withdraw his guilty plea . Specifically, Appellant argues that the
trial court abused its discretion under RCr 8.10 by refusing to inquire further into the
circumstances surrounding the voluntariness of his guilty plea .
RCr 8.10 states in pertinent part that "[a]t 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may permit the plea of guilty or guilty but mentally ill, to be withdrawn and a plea of not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 ." (Emphasis added) . However, a trial court does not have complete
discretion under this rule to deny the withdrawal of a guilty plea. Rodriguez v.
Commonwealth , Ky., 87 S.W .3d 8, 10 (2002). The trial court must first determine that
the plea was voluntary before it can deny the withdrawal of a plea. Id. When
determining the voluntariness of a plea, the trial court must look at the totality of the
circumstances surrounding the guilty plea . Bronk v. Commonwealth , Ky., 58 S .W .3d
482 (2001) .
Upon review of the record, we are convinced that the trial court correctly
determined that Appellant's guilty plea was voluntary . During the lengthy plea colloquy,
Appellant acknowledged that he understood his constitutional rights and the charges
against him . Moreover, Appellant acknowledged the waiver of those rights and
specifically admitted to the murder and robbery of Clifford Robinson . The trial court
specifically questioned Appellant and counsel as to the voluntariness of the plea . The
trial court gave Appellant ample opportunity to withdraw his plea or to express
dissatisfaction with counsel during the plea colloquy . Appellant stated that he was as
pleased with the plea agreement as he could be under the circumstances . We are
convinced that the trial court adequately determined the voluntariness of Appellant's
plea. There was no abuse of discretion .
In his final assignment of error, Appellant asserts that his waiver of jury
sentencing was invalid . While conceding that this alleged "error" is unpreserved for
appellate review, Appellant contends that he is entitled to relief under the palpable error
rule. RCr 10.26. Under RCr 10 .26, a palpable error which affects the substantial rights
of a party may be reviewed even if not preserved if it is determined that a manifest
injustice has occurred . Cash v. Commonwealth , Ky., 892 S .W .2d 292, 295 (1995).
There is no merit to Appellant's request for relief under RCr 10.26 .
Appellant argues that there was no written waiver of jury sentencing included on
the motion to enter guilty plea . In addition, Appellant argues that the trial court was
obligated to specifically question him regarding the waiver of jury sentencing during the
plea colloquy . Neither argument has any merit.
Regarding the written waiver of jury sentencing, clause five of the motion to enter
guilty plea specifically states "I understand that if I plead "GUILTY," the Court may
impose any punishment within the range provided by law . . . ." (Emphasis added) . As
for the obligation of the trial court to question Appellant regarding the waiver of jury
sentencing, a trial judge is not required to read a defendant his rights that have already
been waived by a written waiver and the defendant has acknowledged that he signed
and understood the waiver. Commonwealth v. Crawford , Ky., 789 S .W .2d 779 (1990).
There was no error.
Accordingly, the judgment of the McCracken Circuit Court is affirmed .
Lambert, C .J.; Cooper, Graves, Johnstone, Stumbo, and Wintersheimer, JJ.,
concur. Keller, J ., dissents and would vacate the McCracken Circuit Court's judgment
and remand the case to the trial court with directions for it to proceed in accordance with
Rodriquez v. Commonwealth , Ky., 87 S .W .3d 8 (2002), because Appellant's motion to
withdraw his plea of guilty on the grounds that he was "forced into this," required an
evidentiary hearing followed by the entry of findings of fact as to the voluntariness of
Appellant's plea before the trial court could exercise its discretion to deny Appellant's
RCr 8 .10 motion to withdraw his guilty plea. Rodriquez, 87 S .W .3d at 10; Bronk v.
Commonwealth, Ky., 58 S.W.3d 482 (2001) .
COUNSEL FOR APPELLANT :
Donna L . Boyce
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE :
A. B. Chandler III
Attorney General of Kentucky
Louis F. Mathias, Jr.
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
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