TODD EDWARD EDMONDS V. COMMONWEALTH OF KENTUCKY
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2004-SC-1003-MR
TODD EDWARD EDMONDS
V
~
L-5-04
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN K. MERSHON, JUDGE
01-C R-2382
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING
Pursuant to RCr 8 .08, 8.09, and North Carolina v. Alford , 400 U .S . 25, 91 S .Ct.
160, 27 L.Ed .2d 162 (1970), Appellant, Todd Edward Edmonds, pled guilty in the
Jefferson Circuit Court to two counts of rape in the first-degree, KRS 510.040(1)(a), two
counts of sodomy in the first-degree, KRS 510.070(1)(a), two counts of burglary in the
first-degree, KRS 511 .020, one count of kidnapping, KRS 509.040, one count of robbery
in the first-degree, KRS 515 .020, one count of unlawful imprisonment, KRS 509 .020,
two counts of wanton endangerment, KRS 508.060, one count of failure to notify the
Division of Probation and Parole of a change of address, KRS 17.510, and to being a
persistent felony offender in the first degree, KRS 532.080(3) . Under the plea
agreement, the sentence for each count was enhanced to twenty years because of the
.l.i .
persistent felony offender status, and all sentences were to run concurrently for a total
of twenty years .
He now appeals the final judgment entered pursuant to his guilty plea as a matter
of right, Ky. Const. ยง 110(2)(b), charging the trial court with reversible error for
overruling (1) his motion to sever the counts with respect to each victim; (2) his motion
to continue his jury trial indefinitely pending completion of his treatment for hepatitis-C ;
and (3) his motion to withdraw his guilty plea prior to sentencing on the basis that it was
not voluntary and intelligent . Finding no error, we affirm.
I. FACTS.
Appellant was indicted on October 15, 2001, based on alleged offenses against
two women . The factual bases underlying all counts to which Appellant pled guilty are
as follows . On June 4, 2001, the first victim, D.P ., reported to Jefferson County police
that a man she identified as Appellant persuaded her to invite him into her home, at
which point he tied her to her bed and forcibly raped and sodomized her, then remained
in her home throughout the evening . On August 21, 2001, the second victim, D.M .,
reported to Jefferson County police that a man she identified as Appellant persuaded
her to invite him into her home, at which point he bound her and forcibly raped and
sodomized her. He then briefly tied D .M. to a clothes rack, then untied her and forced
her at knifepoint to drive him to an A.T.M . (automatic teller machine) and withdraw $300
from her bank account . After he took this money, he forced her to drive him to a
different location, at which point he exited her vehicle .
On both occasions, Appellant allegedly committed the sexual offenses without
using prophylactics despite knowledge that he was infected with hepatitis-C, a
communicable disease .' The Commonwealth stated that it would present evidence
from the rape kits of both victims to show that DNA evidence from each crime scene
matched Appellant's DNA. At the time of both offenses, Appellant was a convicted felon
and sex offender, and he had not registered the address of his residence as required by
KRS 17.510 .
After several delays and a change of defense counsel, a jury trial was scheduled
for February 23, 2004. Prior to trial, the Commonwealth offered Appellant a plea
agreement under which he would enter a conditional Alford plea to all counts and would
be sentenced to twenty years in prison. On the morning of trial, after the trial court ruled
on twenty-three pro se motions filed by Appellant the previous day, Appellant accepted
the Commonwealth's plea offer, maintaining his innocence but pleading guilty and
reserving the right to appeal all adverse rulings .
11. SEVERANCE.
Appellant moved the trial court to sever all counts in the indictment relating to the
two different victims on grounds that the two alleged offenses occurred eleven weeks
apart and that the evidence of both offenses together would have a cumulative effect
that would amount to undue prejudice . The Commonwealth responded that no unfair
prejudice would result and further explained that the "prejudicial" evidence regarding the
separate offenses would be introduced into each trial under KRE 404(b) even if
Appellant's motion to sever was granted, thus the joinder of offenses was not
prejudicial . After hearing argument from both sides, the trial court overruled the motion.
' This fact formed the basis for the two counts of wanton endangerment .
2 The trial court did sever the count for failure of a convicted sex offender to notify the
Division of Probation and Parole of a change of address, KRS 17 .510, from the
remaining counts because of the likelihood of undue prejudice.
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We review a trial court's ruling on a motion to sever for an abuse of discretion . Foster v.
Commonwealth, 827 S .W .2d 670, 679-80 (Ky. 1991) ; Boggs v. Commonwealth , 424
S.W.2d 806, 808 (Ky. 1966) ; Smith v. Commonwealth , 375 S.W .2d 819, 820 (Ky. 1964) .
Criminal Rule (RCr) 9.16 states that a trial court shall order separate trials for
counts in an indictment "[i]f it appears that a defendant . . . will be prejudiced by a
joinder of offenses ." A criminal defendant is entitled to a severance only upon a
showing, prior to trial, that joinder would be unduly prejudicial. Humphrey v.
Commonwealth , 836 S.W.2d 865, 868 (Ky. 1992) ; Ware v. Commonwealth , 537 S.W.2d
174,176-77 (Ky. 1976); Edwards v. Commonwealth , 500 S .W.2d 396, 397-98 (Ky.
1973). "A significant factor in identifying such prejudice is the extent to which evidence
of one offense would be admissible in a trial of the other offense ." Rearick v.
Commonwealth , 858 S.W.2d 185,187 (Ky. 1993) ; see also Spencer v. Commonwealth ,
554 S .W.2d 355, 357 (Ky. 1977) .
The Commonwealth correctly noted that any potentially prejudicial evidence of
the acts committed against the separate victims would be admissible in each
prosecution, if severed, under KRE 404(b). Kentucky Rule of Evidence 404(b) states
that evidence of other crimes, wrongs, or acts committed by a defendant is admissible
to prove, inter alia, the intent or identity of the perpetrator . Noel v. Commonwealth , 76
S.W.3d 923, 931 (Ky. 2002) ; Funk v. Commonwealth , 842 S.W.2d 476, 481 (Ky. 1992) .
Evidence of other bad acts to prove intent or identity by modus operandi must generally
be so similar as to constitute a "signature crime." See Commonwealth v. Maddox , 955
S .W .2d 718, 722 (Ky. 1997) ; Rearick, 858 S.W .2d at 187-88. However, "a number of
common features of lesser uniqueness, although insufficient to generate a strong
inference of identity if considered separately, may be of significant probative value when
considered together ." United States v.
Mme, 550 F.2d 1036,
1045 (5th Cir. 1977) ; see
also Dickerson v. Commonwealth , 174 S.W.3d 451, 468-71 (Ky. 2005).
Whether Appellant's defense to the charges was identity (i .e . , that someone else
committed the alleged offenses) or intent (i.e. , the intercourse was consensual),
evidence of the acts committed against each victim would be admissible in a separate
trial for the offenses committed against the other. The facts of each offense in the case
sub judice are strikingly similar: Appellant, who identified himself to each victim as
"Todd," approached each victim outside her home and elicited an invitation into her
home through the guile of his feigned friendship ; once inside, with the victim's back
turned, Appellant attacked . Appellant bound each victim with articles of her own
clothing ; Appellant first vaginally raped, then anally sodomized each victim; Appellant
threatened the life of each victim if she reported the crime to the police ; and each victim
described similar tattoos on her assailant and identified Appellant from a police
photopack following the attack . "[I]t is not the commonality of the crimes but the
commonality of the facts constituting the crimes that demonstrates a modus operandi ."
Dickerson v. Commonwealth , 174 S .W.3d at 469. The commonality of the facts of the
offenses committed against each victim, though not exceedingly unique when
considered independently, "indicate a reasonable probability that the crimes were
committed by the same person." Lear v. Commonwealth , 884 S .W.2d 657, 659 (Ky.
1994).
Our courts have held comparable evidence admissible under KRE 404(b). See,
e.g_, Furnish v. Commonwealth, 95 S.W.3d 34, 47 (Ky. 2002) (evidence of previous
burglary where employment as carpet cleaner provided guise for entry into home held
admissible in murder prosecution where entry into victim's home allegedly achieved
through same) ; Violett v. Commonwealth , 907 S .W.2d 773, 775-76 (Ky. 1995) (denying
severance) ("He began improperly touching the daughter when she was eleven years
old and he improperly touched the stepdaughter when she was twelve years old. In
both situations, the touching escalated into improper sexual rubbing of the victims'
bodies and digital penetration . Both victims testified that he ultimately raped them. The
method of gaining access to both children was very similar. Each victim was a member
of the household at the time the misconduct occurred . The defendant would get each
child alone in the bedroom, or gain access to the victims by approaching them in the
bathroom when they were getting ready or taking a shower. He also warned each
victim not to tell anyone about the incidents."); Berry v. Commonwealth , 84 S.W.3d 82,
88 (Ky. App. 2001) (denying severance) ("[T]he earliest offense charged in the 1998
indictment occurred in December 1977, and the latest offense in that indictment
occurred in 1980 . The ten counts in the 1998 indictment were committed on five
different victims . The 2000 indictment charged that Berry committed the same criminal
act as in the first indictment-third-degree sodomy-on another victim in 1982, and
again in 1986. In every instance, the crime involved a boy under the age of sixteen who
was participating in Micro City Government. All twelve instances of third-degree
sodomy occurred in Berry's home while he was there alone with each boy.") (footnote
omitted) . Thus, evidence of the acts committed against each victim would have been
admissible in Appellant's separate prosecutions for offenses committed against the
other had the trial court granted his motion to sever . Nor does the lapse of eleven
weeks between the separate offenses warrant severance . Violett , 907 S .W.2d at 77576 (four years) ; Berry, 84 S .W .3d at 88 (multiple offenses against multiple victims
committed over nine-year period) . As such, Appellant was not unduly prejudiced by the
denial of his motion . Humphrey , 836 S.W.2d at 868.
III. CONTINUANCE .
During pretrial motions, Appellant moved the trial court to continue his
prosecution indefinitely pending his treatment for hepatitis-C on grounds that the
medications prescribed for treatment impaired his ability to participate meaningfully in
his own defense . Criminal Rule (RCr) 9 .04 provides that "[t]he court, upon motion and
sufficient cause shown by either party, may grant a postponement of the hearing or
trial ." Whether to grant a continuance under RCr 9.04 "rests solely within the court's
discretion ." Snodgrass v. Commonwealth , 814 S .W .2d 579, 581 (Ky. 1991), overruled
on other grounds by Lawson v. Commonwealth , 53 S.W.3d 534 (Ky. 2001) ; see also
Williams v. Commonwealth , 644 S.W.2d 335, 336 (Ky. 1982) . When ruling on an RCr
9.04 motion, a trial court should consider the facts of each case, especially, inter alia,
"length of delay; previous continuances; inconvenience to litigants, witnesses, counsel
and the court ; whether the delay is purposeful or is caused by the accused ; . . .
complexity of the case; and whether denying the continuance will lead to identifiable
prejudice ." Snod qrass, 814 S.W.2d at 581 .
Appellant argues that the side effects from his medication constituted identifiable
prejudice that necessitated an additional continuance . During a pretrial motion to
continue the trial indefinitely pending Appellant's treatment, Dr. Bennett Cecil, the
prescribing physician, testified under oath to the potential side effects a patient might
suffer. Although debilitating fatigue, memory lapses, and impaired concentration were
among them, Cecil testified that he was unaware of Appellant's having experienced any
of those side effects. In response to questioning by the trial court, Cecil also testified
that the court could take certain measures to accommodate Appellant if the side effects
became manifest, e.g_, recessing court more frequently and even adjourning court early
for the day. In overruling Appellant's motion, the trial court noted that, contrary to any
impairment in Appellant's mental acuity, it believed Appellant's numerous pro se
motions, some filed without aid of jailhouse counsel, reflected positively on his capacity
to stand trial.
Additionally, Appellant's trial had already experienced repeated delays: more
than two years elapsed between his October 2001 arraignment and his February 2004
trial date, when his motion to continue was denied . During that time he successfully
sought postponement of his trial for a competency evaluation, a continuance for further
investigation and to subpoena more witnesses, and a postponement pending the
assignment of replacement legal counsel after Appellant expressed dissatisfaction with
his previously-appointed counsel. Appellant's subsequent motion to continue for an
indefinite period, possibly more than a year pending his medical treatment, would have
added to the already substantial delay in trial . In addition to the increased burden on
the trial court, a continuance would have been even more stressful to both victims in the
case, who would likely be called to recount before the jury the details surrounding the
indignities they suffered .
The trial court's decision to deny Appellant's motion for an additional continuance
was not "arbitrary, unreasonable, unfair, or unsupported by sound legal principles,"
Commonwealth v. English , 993 S .W .2d 941, 945 (Ky. 1999), thus no abuse of discretion
occurred .
IV. GUILTY PLEA.
Appellant appeals from the trial court's denial of his motion to withdraw his guilty
plea on the grounds that his plea was involuntary and the trial court's ruling was,
therefore, an abuse of discretion . A trial court may accept a criminal defendant's
conditional guilty plea to any criminal charge, but must first ascertain that the plea is
made voluntarily and with an understanding of the nature of the charge . RCr 8.08- .09 .
Due process requires a trial court to make an affirmative showing, on the record, that a
guilty plea is voluntary and intelligent before it may be accepted . Boykin v. Alabama,
395 U .S. 238, 241-42, 89 S .Ct. 1709, 1711, 23 L.Ed .2d 274 (1969) .
In the case sub judice , the trial court conducted a facially satisfactory Boykin
colloquy : after Appellant announced his intent to accept the Commonwealth's plea deal,
the trial court addressed each constitutional right Appellant was waiving by entering a
conditional guilty plea, i.e. , the right to a trial by jury, to confront adverse witnesses, to
an attorney (though Appellant was represented by counsel throughout), and to remain
silent and not to have the jury use his silence against him . The trial judge further
.
explained the consequences of Appellant's Alford plea, i .e . , that he would have each
felony on his permanent record, that he would retain the right to appeal adverse rulings,
and that he would have to register as a sex offender upon his release . Furthermore, in
response to questioning by the trial court, Appellant affirmed the following under oath :
that he had legal counsel who reviewed the written offer of plea agreement with him and
explained his rights and the consequences of the plea; that he had a general education
3 The purpose of this showing is "to make sure he has a full understanding of what the
plea connotes and of its consequence," including the constitutional rights that are
waived by a guilty plea . Id . at 243-44, 89 S .Ct. at 1712: Failure to conduct a Boykin
hearing on the record constitutes reversible error, and an aggrieved defendant may
withdraw his plea and enter a new pleading without prejudice . Id . at 244, 89 S .Ct. at
1713.
degree and could read and write ; that he was satisfied with the advice of his legal
counsel; that he was not under the influence of any drugs or alcohol at the time, except
the prescribed medications discussed earlier in the day, see infra; and that he
"definitely" felt like he knew what he was doing in entering the plea. The trial court then
reviewed a brief summary of the evidence the Commonwealth intended to present if the
case went to trial and explained each count for which Appellant would be tried .
After the trial court accepted Appellant's plea, but prior to the sentencing and final
judgment, Appellant moved the court to withdraw his guilty plea pursuant to RCr 8 .10.
Criminal Rule (RCr) 8 .10 provides that, "[a]t any time before judgment the court may
permit the plea of guilty . . . to be withdrawn and a plea of not guilty substituted ."
Though an RCr 8 .10 motion is generally within the sound discretion of the trial court, a
defendant is entitled to a hearing on such a motion whenever it is alleged that the plea
was entered involuntarily . Rodriguez v. Commonwealth , 87 S.W.3d 8, 10 (Ky. 2002) ;
Bronk v. Commonwealth , 58 S .W.3d 482, 486 (Ky. 2001) ; see also Brady v. United
States, 397 U.S. 742, 749, 90 S.Ct. 1463, 1469, 25 L.Ed .2d 747 (1970). If a guilty plea
is found to have been entered involuntarily, considering the totality of the
circumstances, a trial court must grant a defendant's motion to withdraw the plea.
Rodri g uez, 87 S.W.3d at 10; Haight v. Commonwealth , 760 S.W.2d 84, 88 (Ky. 1988) ;
Wood v. Commonwealth , 469 S .W .2d 765, 766 (Ky. 1971) . This inquiry is inherently
fact-sensitive, thus this Court reviews such a determination for clear error, i .e . , whether
the determination was supported by substantial evidence . Rodriguez, 87 S.W.3d at 1011 ; Rigdon v . Commonwealth , 144 S.W.3d 283, 288 (Ky. App . 2004) .
4 Due to treatment Appellant was receiving for hepatitis-C, there was an abnormally
long interim between the entrance of Appellant's plea and his sentencing .
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In the case sub judice , the trial court, having already conducted the Boykin
hearing when the plea was entered, denied the motion and simply referred to its
previous Boykin colloquy in finding that Appellant's plea had been voluntarily entered .
Appellant now appeals that decision, alleging that his plea was rendered involuntary or
unknowing because: (1) he had been misinformed by defense counsel regarding when
he would be released from prison ; (2) he had been under the influence of medications
that interfered with his ability to fully comprehend and participate in the proceedings ;
and (3) he had been misinformed by his attorney regarding the probable composition of
the jury, which led him to conclude that he would be unable to get a fair trial and thus
should accept the plea offer.
A guilty plea is involuntary if the defendant lacked full awareness of the direct
consequences of the plea or relied on a misrepresentation by the Commonwealth or the
trial court. Brady, 397 U .S . at 755, 90 S .Ct. at 1472. A guilty plea is intelligent if a
defendant is advised by competent counsel regarding the consequences of entering a
guilty plea, including the constitutional rights that are waived thereby, is informed of the
nature of the charge against him, and is competent at the time the plea is entered . Id.
at 756, 90 S.Ct. at 1473; Boykin , 395 U .S . at 243, 89 S.Ct. at 1712.
A. Lenqth of Sentence.
Appellant argues that he was misinformed by defense counsel regarding when
he would be released from the penitentiary and that this misinformation rendered his
conditional guilty plea involuntary . Despite the trial court's explanation to Appellant
during the colloquy that, inter alia, he would be sentenced to twenty years, be required
to serve 85% of that sentence prior to eligibility for parole, and be credited with time
served prior to sentencing, Appellant now asserts that a statement in a letter from his
attorney sent prior to the colloquy (and absent from the record) assured him that he
would be released , rather than merely eligible for parole, at the expiration of 85% of his
sentence, and that he relied on this assurance in pleading guilty . Thus, he argues, the
trial court was required to accept his motion to withdraw .
A defendant's eligibility for parole is not a "direct consequence" of a guilty plea
the ignorance of which would render the plea involuntary .5 Armstrong v. Egeler, 563
F.2d 796, 799-800 (6th Cir. 1977) ; see also Ex parte Evans , 690 S.W.2d 274, 279 (Tex.
Crim . App. 1985) ("We think, then, that the speculative nature of parole attainment is
such as to discount its legal importance on the subject of voluntariness of a guilty
plea.").
Neither in the quoted language nor elsewhere in Boykin does it
appear that a precise knowledge of all of the penal ramifications rises to
the quality of a constitutional requirement . . . .
The requirement that a plea be intelligently and 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.
. . . The district court was not bound to accept [defendant's]
testimony years later in the face of the colloquy which took place at the
time of the plea.
Armstrong , 563 F.2d at 799-800 (footnote omitted) . As did the defendant in Armstrong ,
Appellant asserts that the trial court should give more weight to his subsequent
testimony regarding his mistaken belief than to statements he made to the contrary
during the plea colloquy . We disagree .
The following exchange occurred between Appellant and the trial judge regarding
the terms of his sentence under the plea agreement .
5 The full range of penalties for the charge to which a defendant pleads guilty is a "direct
consequence" of the plea of which a defendant must be aware. Armstrong , 563 F.2d at
800 .
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Counsel :
We would like the judge to entertain a colloquy for an Alford
guilty plea .
Judge :
The one you settled on was the 20-years straight; 85%
[parole eligibilityl on twenty years?
Counsel :
85%, less credit for time served. He's been in for two-and-ahalf years .
Judge:
[to Appellant] And you understand the commonwealth is
recommending 18 years on each of those felonies that you
faced ten- to twenty-[years] on . They're recommending 18
years on the rape, 18 on the sodomy, the burglary, the
kidnapping, and the robbery? And each one of those 18,
year sentences would be enhanced to twenty years because
of you being a persistent felon.
App'ant :
Right.
Judge:
They're also recommending 5 years on the unlawful
imprisonment, 5 years on each count of wanton
endangerment, and 5 years on the failure to notify the
change of address. And every single one of these would run
concurrently, so you're looking at a total of twenty years on
everything.
App'ant :
Yes sir, I understand .
Judge :
All right. . . . Is there anything about this plea agreement
that you do not understand?
App'ant:
No sir, there's not.
Judge:
Do you have any questions that you want to ask the court or
ask your attorneys before the court accepts your pleas?
App'ant :
No sir.
Judge:
And Mr. Edmonds, the court will make a finding that your
pleas are knowingly and voluntarily entered, and that there's
a factual basis for it.
Counsel :
We'd ask that probation and parole compute credit-time
served, which we believe to be in excess of two-and-a-half
- 1 3-
years, and obviously several months from now at sentencing
the appropriate time to be appropriated or given credit at that
time .
Judge :
He'll automatically get credit for time served .
(Emphasis added .) In addition to the above colloquy in which Appellant's own attorney
and the judge described his parole eligibility, the Motion to Enter a Plea of Guilty, signed
by Appellant, and the Commonwealth's Offer on a Plea of Guilty both clearly set forth
the sentences that would accompany Appellant's guilty plea.
Although a defendant should be able to rely on representations by his attorney,
reliance on a statement that is flatly contradicted by subsequent statements made by
that same attorney, the trial court, and the Commonwealth during the plea negotiations
and the Boykin colloquy is not reasonable and does not render the plea involuntary . "[I]f
the information given by the court at the [plea] hearing corrects or clarifies the earlier
erroneous information given by the defendant's attorney and the defendant admits to
understanding the court's advice, the criminal justice system must be able to rely on the
subsequent dialogue between the court and defendant." United States v. Lambey , 974
F .2d 1389, 1395 (4th Cir. 1992) ; see also United States v. D'Angelo , 172 F.3d 1046,
1047-48 (8th Cir. 1999) (holding that defendant's reliance on incorrect legal advice did
not automatically warrant withdrawal of guilty plea) ; United States v. Mahler, 984 F.2d
899, 902 (8th Cir. 1993) (holding defendant not entitled to withdraw guilty plea because
he was under a misapprehension regarding sentence range) ; United States v. Todaro ,
982 F .2d 1025, 1030 (6th Cir. 1993) (holding misunderstanding regarding whether
defendant would be probated did not require withdrawal of guilty plea). "Like the
Supreme Court in Fontaine v. United Statesf, 411 U .S. 213, 215, 93 S.Ct. 1461, 1462,
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36 L .Ed.2d 169 (1973)], we recognize that a defendant who expressly represents in
open court that his guilty plea is voluntary may not ordinarily repudiate his statements to
the sentencing judge ." Todaro, 982 F.2d at 1030 (citations and quotations omitted) .
There is substantial evidence to support the trial court's determination that the
plea was voluntary and intelligent . The extensive exchange on the record, recounted
above, between the trial court and Appellant prior to his plea constitutes substantial
evidence that Appellant was aware of the sentencing implications and was making a
voluntary and intelligent plea . Ri don, 144 S.W.3d at 288 . Therefore, we find no error.
B . Ingestion of Medications .
Appellant next asserts that his guilty plea was involuntary because he was under
the influence of two medications prescribed for treatment of his hepatitis-C, Infergen
and Ribavirin, which caused severe fatigue and lapses of concentration. According to
Appellant, faced with the "Hobson's choice" of going to trial while experiencing these
negative side effects or pleading guilty, he was forced to plead guilty and was thereby
deprived of his right to a fair trial guaranteed by the due process clause of the
Fourteenth Amendment to the United States Constitution .
During the plea colloquy, the following exchange took place :
Judge :
[to Appellant] Sir, this afternoon, are you under the influence
of any drugs, alcohol, medications, anything that would cloud
the way you're thinking?
App'ant:
No.
Judge :
And I know you're on medications, but it's not stuff that
would effect you mentally?
App'ant :
No.
(Emphasis added .) Appellant now argues that, despite these sworn statements, the
side effects from his medications were so pervasive that he was unable to enter a
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voluntary guilty plea . However, the record contains substantial evidence to support the
trial court's ruling on the plea's voluntariness . "Solemn declarations in open court carry
a strong presumption of verity . The subsequent presentation of conclusory allegations
unsupported by specifics is subject to summary dismissal, as are contentions that in the
face of the record are wholly incredible." Blackledae v. Allison, 431 U .S. 63, 74, 97
S .Ct. 1621, 1629, 52 L.Ed.2d 136 (1977) ; see also Bandy v. State , 847 S.W.2d 93, 96
(Mo. Ct. App. 1992) (holding guilty plea not rendered involuntary by ingestion of
medications where defendant acknowledged drugs did not impair faculties prior to plea) .
Appellant's sworn statements during the plea colloquy, coupled with the sworn
testimony by Dr. Cecil during Appellant's pretrial motion for continuance, see supra,
amounted to substantial evidence that Appellant enjoyed the capacity to comprehend
the proceedings . Additionally, Appellant was alert and responsive during the
proceedings prior to and throughout the guilty pleas As such, the trial court's finding
that the medications did not render the plea involuntary or unintelligent was not clearly
erroneous. Ri don, 144 S .W.3d at 288 .
C. Composition of the Prospective Venire Panel .
Appellant's final challenge to the denial of his RCr 8 .10 motion is that his plea
was involuntary and unintelligent because his attorney told him in a letter that he would
be tried by an all white, female jury, and that such a jury would inevitably convict him.
Faced with such an alternative, Appellant argues, he was forced to enter the guilty plea .
The letter was never included in the record . However, in support of his motion,
s
Although Appellant emphasizes that he had his head down on the table during
portions of the proceedings as evidence of his fatigue, during one such instance
Appellant was specifically asked whether he felt alright, and he responded affirmatively .
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Appellant produced the letter in court and read from it. Thereafter, his attorney stated
the following:
Counsel :
And at great peril, I do tell clients, . . . I try a lot of cases and
it has been my experience based on . . . the demographics
of the racial population of this jurisdiction, pretty much is
similar with the veniremen we receive . I did tell my client he
would be . . . fortunate to get six to eight people of color and
the balance being Caucasian, out of forty-two . . . . It has
also been my experience that the vast majority of my cases
with black defendants have been with an all white jury. I
have had occasions when one or two or three blacks [are on
the panel] . . . . But many times blacks are stricken, even
after Batson challenges, and I told my client he would be
tried by a predominantly white jury.
Judge :
Would be predominantly . . . .
Counsel :
Which is true. Well, it's my experience . May not always be
true. . . . I projected that white female jurors will be
uncomfortable talking about rape and anal intercourse . I
don't know that men will be more than women, but my sense
was that women would be . And those are the remarks I
made, and if they are false or misleading, I take full
responsibility for it.
Though discrimination in jury selection on the basis of race is prohibited by the equal
protection clause, "a defendant has no right to a petit jury composed in whole or in part
of persons of his own race." Batson v. Kentucky , 476 U .S. 79, 85, 106 S.Ct. 1712,
1717, 90 L.Ed .2d 69 (1986). As such, statements by a defense attorney, based on his
own prior experience, that a criminal defendant faces the prospect of being tried by a
jury devoid of members of that defendant's race are not misleading or inaccurate .
Reasonable forecasts by defense counsel regarding a defendant's fate or likelihood of
success at trial do not render a plea involuntary simply because the prediction is
unwelcome or undesirable . See , etc . , United States v. Cothran, 302 F.3d 279, 284 (5th
Cir. 2002) ("[A] defense lawyer's stern warnings about the client's chances of success at
trial . . . do[es] not compromise voluntariness ."); Uresti v. Lynaugh , 821 F.2d 1099,
-17-
1101-02 (5th Cir. 1987) (finding plea voluntary where attorney warned client that he
would be lucky to get ninety-nine years if he went to trial and threatened to withdraw if
defendant did not plead guilty) . Concern over the prospect of being tried by a jury with
a racial composition permitted by the Constitution cannot render a subsequent guilty
plea constitutionally invalid for want of voluntariness .
After finding that Appellant's plea was voluntary (which is reviewed for clear
error), a trial court's denial of a defendant's motion to withdraw a guilty plea is reviewed
for abuse of discretion . Rodriguez v. Commonwealth , 87 S.W.3d 8, 10 (Ky. 2002) ;
Elkins v. Commonwealth , 154 S .W.3d 298, 300 (Ky. App . 2004). For the reasons set
forth above, the denial of Appellant's motion to withdraw his guilty plea was not
"arbitrary, unreasonable, unfair, or unsupported by sound legal principles,"
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999), thus no abuse of discretion
occurred .
Accordingly, the judgment and sentence imposed by the Jefferson Circuit Court
pursuant to Appellant's guilty plea is AFFIRMED.
All concur.
.
COUNSEL FOR APPELLANT :
Shannon Dupree
Assistant Public Advocate
Department of Public Advocacy
Suite 301
100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE :
Gregory D. Stumbo
Attorney General
State Capitol
Frankfort, KY 40601
Bryan D . Morrow
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
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