MARCUS JABAR PENMAN V. COMMONWEALTH OF KENTUCKY
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2005-SC-000533-MR
AND
2005-SC-000534-MR
MARCUS JABAR PENMAN
APPELLANT
APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE EDWIN M . WHITE, JUDGE
INDICTMENT NOS . 04-CR-00313 AND 04-CR-00569
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
VACATING AND REMANDING
These cases ask us to decide whether a trial court erred in failing to
hold an evidentiary hearing on a motion to withdraw a guilty plea by a defendant
who inexplicably pleaded guilty to a felony even though he had been indicted for
a misdemeanor and whose attorney stated at the time of the plea that he was
uninformed about the underlying facts of the case . We hold that the failure to
hold the hearing was error . So we vacate the judgment and remand the case to
the trial court.
I. FACTS AND PROCEDURAL HISTORY.
Based on a confidential informant's statement that he had bought
marijuana at Marcus Penman's home, detectives got a warrant to search
Penman's home and vehicle . In the vehicle, they found Penman with a Loritab in
his back pocket; in the home, they found three small children alone, a large
baggie of rock cocaine, and several baggies of marijuana . As a result, Penman
was indicted on the following charges :
"
Trafficking in a Controlled Substance, First Degree, Second
Offense, Cocaine ;
"
Trafficking in a Controlled Substance Within 1000 Yards of a
School ;
"
Three counts of Wanton Endangerment, First Degree ;
"
Possession of a Controlled Substance, Second Degree, First
Offense, Loritab ; and
"
Possession of Drug Paraphernalia .
A few months later, Penman was separately indicted for being a Persistent
Felony Offender in the First Degree (PFO I).'
Although the record does not pinpoint when this took place,
Christian Woodall was appointed as counsel for Penman to replace his first
court-appointed lawyer. Ultimately, Penman reached a plea bargain with the
Commonwealth in which he agreed to plead guilty to:
"
Trafficking in a Controlled Substance, First Degree, Second
Offense;
Penman's PFO indictment had a separate circuit court case number, and both
indictment numbers appear on the same judgment. Penman filed a separate notice
of appeal for each indictment so there are two appeals. These two appeals present
identical issues of law and fact so we have consolidated them.
"
Trafficking in a Controlled Substance Within 1000 Yards of a
School;
"
Three counts of Wanton Endangerment, First Degree;
"
Possession of Drug Paraphernalia ;
An amended charge of Persistent Felony Offender in the
Second Degree (PFO II); and
"
Possession of a Controlled Substance, Second Offense, Loritab
(a charge that did not appear in the indictment) .
Under the terms of the written plea agreement, the Commonwealth
recommended:
"
A twenty-year sentence on the PFO II charge, to be served in
lieu of ten years' imprisonment on the Trafficking in a Controlled
Substance in the First Degree charge ;
"
Twelve months' incarceration on the Possession of Drug
Paraphernalia charge ; and
"
Five years each on all other charges, including the new
Possession of a Controlled Substance charge.
During the Boykin2 colloquy with Penman at the guilty plea hearing,
the trial court did not mention that there was a new felony charge. Instead, the
trial court asked Penman if he was pleading guilty to Possession of a Controlled
Substance, First Offense, which was the misdemeanor charge as it appeared in
the indictment. Penman responded affirmatively to the trial court's question .
And, in response to the trial court's other Boykin-related questions, Penman
stated under oath that he had voluntarily agreed to the pleas and that he was
satisfied with his attorney's services . Woodall stated at this same hearing that he
had "grave reservations" about permitting Penman to plead guilty because that
Boykin v. Alabama, 395 U.S . 238 (1969) .
-3-
was the first day he had met Penman, and he knew nothing about Penman's
case other than an allegation regarding crack cocaine . But Woodall assured the
trial court that he believed that Penman was aware of the charges against him .
So the trial court accepted Penman's guilty plea and set a sentencing date .
At sentencing, Woodall orally moved the trial court to allow Penman
to withdraw his guilty pleas because Woodall knew nothing about the case when
Penman entered them. Consequently, Woodall stated that he was unable to
advise Penman whether the proposed plea agreement was a "good deal ." The
trial court continued the sentencing so that Woodall could follow-up with a written
motion.
The written motion argued for withdrawal of the plea because when
Penman pleaded guilty, (1) he pleaded guilty too hastily hoping to be released
from jail on bond to attend to his ailing wife while awaiting sentencing ; and
(2) Woodall "had no advice to give [him] as to whether a 20[-]year sentence was
in his best interests or not, as [Woodall] had not thoroughly reviewed the
discovery. Essentially, [ ] Penman entered this plea without the guiding hand of
counsel ."
At the hearing on the motion, Woodall added another reason to
allow withdrawal of the guilty plea : he had recently discovered a basis to
suppress the evidence against Penman. In light of this, the trial court directed
Woodall and the Commonwealth to file additional briefs. Woodall responded by
filing a terse brief arguing that Penman's plea was not knowingly made because
Penman "did not fully understand the nature of the charges against him ." The
Commonwealth responded that Penman's plea was voluntary and knowingly
made because Penman, who was a savvy defendant because of significant court
contact in the past, had actively participated in negotiating his own deal with the
Commonwealth .
When the parties appeared to reargue Penman's motion to
withdraw his guilty plea, Woodall argued that the late-discovered suppression
issue was a basis to allow withdrawal of the plea. The trial court denied the
motion noting (1) its policy against allowing disgruntled defendants to withdraw
their pleas; and (2) that Penman's plea met the Boykin requirements .
As the hearing continued, Penman himself spoke up, arguing that
the plea agreement stated that he was guilty of possession of Loritab, second
offense, although he had never been convicted of possession of Loritab, first
offense . The Commonwealth responded that the substance possessed need not
be the same illegal substance for a subsequent offense charge to lie. The trial
court agreed. Penman's counsel stood mute during this brief exchange about
the possession of Loritab charge . The trial court then sentenced Penman in
accordance with the plea agreement's recommendation, after which Penman
filed these appeals.
There is nothing in the record to explain how the offense named in
the indictment as "Possession of a Controlled Substance, Second-degree, First
Offense, Loritab" (a Class A Misdemeanor) morphed into "Possession of a
Controlled Substance, Second Offense" (a Class D Felony) appearing first in the
plea agreement and, ultimately, in the judgment .
Ky. Const. §110( 2)(b) .
11. ANALYSIS.
A. Standard of Review.
Kentucky Rules of Criminal Procedure (RCr) 8 .10 provides in
relevant 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 ." Because "[a] guilty plea is valid only when it is entered intelligently
and voluntarily[,] ,,4 a trial court should determine on the record whether the plea
was made voluntarily before ruling on a motion to withdraw a guilty plea .5 If the
trial court finds that the plea was involuntary, it must permit the defendant to
withdraw his pleas But if the trial court determines that the plea was voluntary, it
then has the discretion to either grant or deny the motion to withdraw the plea .'
In order to determine if a guilty plea was made voluntarily, a court
must "consider the totality of the circumstances surrounding the guilty plea[.]"8
When the motion to withdraw the plea is based upon a claim of ineffective
assistance of counsel, a trial court must undertake "an inherently factual
inquiry[.]"9 "Generally, an evaluation of the circumstances supporting or refuting
claims of coercion and ineffective assistance of counsel requires an inquiry into
Bronk v. Commonwealth , 58 S.W.3d 482, 486 (Ky. 2001).
Rigdon v. Commonwealth , 144 S.W.3d 283, 287-288 (Ky.App . 2004).
Rodriouez v. Commonwealth , 87 S.W.3d 8, 10 (Ky. 2002).
/d.
Bronk, 58 S.W .3d at 486.
/d. at 489 (Cooper, J., concurring) .
what transpired between attorney and client that led to the entry of the plea, i.e.,
an evidentiary hearing."'°
We review a trial court's decision regarding the voluntariness of a
guilty plea under a clearly erroneous standard ." And we review a trial court's
decision to deny a motion to withdraw a plea, which it has determined was
voluntarily made, under an abuse of discretion standard . 12 A ruling that is
supported by substantial evidence is not clearly erroneous.'3 A trial court abuses
its discretion only when it acts arbitrarily, unreasonably, unfairly, or outside of
sound legal principles. 14
So our task is first to determine if the trial court decided that
Penman's plea was made voluntarily. If so, we review that decision under the
clearly erroneous standard . If we determine that the trial court did not clearly err
in determining that Penman's plea was voluntarily entered, we then determine
whether the trial court's decision to deny Penman's motion to withdraw his guilty
plea was so unfair as to constitute an abuse of discretion .
10
Rodriguez, 87 S.W.3d at 11 .
Ri don, 144 S.W.3d at 288 (citing Bronk, 58 S.W .3d at 489 (Cooper, J., concurring)) .
12
/d. (citing Bronk, 58 S.W.3d at 487) .
13
Id
14
Id
B. Was Penman's Plea Voluntary? 15
The record does not reflect an express finding by the trial court
regarding the voluntariness of Penman's plea . But before denying Penman's
motion to withdraw his guilty plea, the trial court commented that Penman met all
of the Boykin requirements. Boykin 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. "6 We will construe the trial court's comment that Penman met the
Boykin requirements as the functional equivalent of a finding that Penman's plea
was voluntarily made. So we must next attempt to determine whether the trial
court clearly erred when it concluded that Penman's plea was voluntary .
At the time he entered his plea, Penman stated under oath that he
had freely and voluntarily decided to accept the Commonwealth's plea offer.
Although we recognize that the question of whether a plea was voluntary does
not depend upon "reference to some magic incantation recited at the time it is
taken[,]"" we also are aware that "[s]olemn declarations in open court carry a
strong presumption of verity ." 18 The purportedly voluntary nature of Penman's
plea is supported not only by his own statements under oath, but also by the
15
Before discussing the merits of Penman's arguments, we reject the Commonwealth's
argument that Penman failed to preserve the issue of his counsel's ineffectiveness.
Although Penman and his counsel also discussed other reasons they believed
supported Penman's motion to withdraw his guilty plea, the issue of counsel's
alleged ineffectiveness was also brought to the trial court's attention .
16
Edmonds v. Commonwealth , 189 S.W.3d 558, 565 (Ky. 2006) (citing Boykin ,
395 U .S. at 241-242) .
17
Kotas v. Commonwealth , 565 S.W.2d 445, 447 (Ky. 1978).
18
Centers v. Commonwealth , 799 S.W. 2d 51, 54 (Ky.App. 1990).
statements of his counsel, who, at the time the plea was entered, stated that
Penman was aware of the charges against him and the general nature of the
plea proceedings. And because the Commonwealth agreed to amend the PFO I
charge to a PFO II charge, Penman received a considerable benefit from his
decision to plead guilty.
But there are significant factors that could lead us to conclude that
Penman's plea was involuntary due to his counsel's ineffectiveness . "A criminal
defendant may demonstrate that his guilty plea was involuntary by showing that it
was the result of ineffective assistance of counsel ." 19 Furthermore, a guilty plea
may be attacked on the grounds that the defendant's attorney was ineffective .2°
In order to show ineffective assistance of counsel, Penman was required to
demonstrate: "(1) that counsel made errors so serious that counsel's
performance fell outside the wide range of professionally competent assistance;
and (2) that the deficient performance so seriously affected the outcome of the
plea process that, but for the errors of counsel, there is a reasonable probability
that the defendant would not have pleaded guilty, but would have insisted on
going to trial ."2'
Our review of whether Penman has satisfied those two
requirements is severely hampered by the fact that the trial court did not hold an
evidentiary hearing on Penman's motion. As previously noted, since a trial court
must consider the totality of the circumstances in assessing a motion to withdraw
19
Ri don, 144 S.W.3d at 288.
20
Rodriguez, 87 S.W.3d at 10.
21
Bronk, 58 S .W.3d at 486-487.
a guilty plea based on ineffective assistance of counsel, an evidentiary hearing is
generally necessary to determine "what transpired between attorney and client
that led to the entry of the plea," 22 although the lack of a hearing may not be
grounds for reversal if a defendant makes no allegation that the lack of a hearing
caused him to suffer prejudice . However, in the case at hand, Penman
specifically argues in his reply brief that the trial court erred to his prejudice by
failing to hold an evidentiary hearing before denying his motion to withdraw the
guilty plea .
We are at a loss to understand how Penman pleaded guilty to a
felony charge of Possession of a Controlled Substance, Second Offense, when
he was indicted for the misdemeanor charge of Possession of a Controlled
Substance in the Second Degree, First Offense . This is a question of practical
significance because the possession charge for which Penman was indicted
carries a maximum possible sentence of twelve months, whereas the charge to
which he pleaded guilty carries a maximum possible sentence of five years . 24
This is also a question of legal significance as to whether the circuit court had
jurisdiction to find Penman guilty of the felony possession charge that appears to
have been added in the plea agreement. We can locate no waiver of
22
Rodriguez , 87 S.W.3d at 11 .
23
Ri don, 144 S.W .3d at 290.
24
See Kentucky Revised Statutes (KRS) 218A.1416(2).
25
Malone v. Commonwealth , 30 S.W.3d 180,183 (Ky. 2000) ("[a] criminal prosecution
requires the existence of an accusation charging the commission of an offense.
Such an accusation[,] either in the form of an indictment or an information, is an
essential requisite of jurisdiction . In Kentucky, subject matter jurisdiction over a
felony offense may be invoked either by a grand jury indictment or by information in
- 1 0-
indictment, which could have permitted Penman to be charged with the felony
possession charge without going back to the grand jury. The confusion over
the felony possession charge is magnified by the fact that the trial court referred
only to the misdemeanor possession charge in its Boykin colloquy with Penman,
yet, the judgment of conviction found Penman guilty of felony possession and
ordered him to serve five years' imprisonment for that charge .
There may be benign reasons for the seemingly inexplicable
enhancement of Penman's possession charge, such as a simple clerical error
originating in the plea agreement and perpetuated in the final judgment 27 But
because this issue was not raised at all by Penman's counsel and was,
consequently, given minimal attention by the trial court, we cannot definitively
conclude what legal justification, if any, exists for the enhancement of Penman's
second-degree possession charge. We conclude that the trial court should have
held a hearing on this issue, especially in light of the fact that an effective
attorney surely would not permit his client to plead guilty and be sentenced to five
cases where the individual consents . Information is an agreement between the state
and the individual to proceed without the formalities of a grand jury indictment . . . .
Every accused person still enjoys an absolute procedural due process right to be
prosecuted by indictment . However, he can be prosecuted by information if he
knowingly waives that right.").
26
See RCr 6 .02(1) ("[a]ll offenses required to be prosecuted by indictment pursuant to
Section 12 of the Kentucky Constitution shall be prosecuted by indictment unless the
defendant waives indictment by notice in writing to the circuit court, in which event
the offense may be prosecuted forthwith by information .") . Section 12 of the
Kentucky Constitution provides that "[n]o person, for an indictable offense, shall be
proceeded against criminally by information, except in cases arising in the land or
naval forces, or in the militia, when in actual service in time of war or public danger,
or by leave of court for oppression or misdemeanor in office ."
27
Notably, even the Commonwealth admits that Penman's agreement to plead guilty to
a markedly more serious offense than that contained in the indictment "may have
been out of the ordinary[.]"
years' imprisonment for a charge over which the court arguably lacked
jurisdiction .
And we are troubled by the fact that Penman's attorney allowed him
to plead guilty despite the attorney's admission that he had just met Penman and
knew nothing about the facts underlying the charges . We realize that the fact
that counsel may have only briefly met with a client is only one factor to be
considered . It does not, in and of itself, conclusively constitute ineffective
assistance of counsel .2$ However, we question whether Penman's counsel's
admitted utter lack of knowledge of Penman's case at the time Penman pleaded
guilty constitutes ineffective assistance of counsel . The potential problem of an
attorney letting a client plead guilty without first gaining a fundamental knowledge
of the client's case is amply highlighted by the fact that Penman's counsel
discovered a basis for a motion to suppress only after Penman had already
pleaded guilty . But as with the morphed possession charge, we cannot make a
definitive conclusion as to the adequacy of Penman's counsel's performance on
this point because the trial court held no evidentiary hearing on the matter. Thus,
the record does not contain a sufficient explanation as to why Penman's counsel
believed that his client properly pleaded guilty despite his counsel's being
admittedly ignorant of the underlying facts and any possible defenses .
We also believe an evidentiary hearing is required so that Penman
may attempt to demonstrate any possible prejudice stemming from his counsel's
allegedly deficient performance .
28
Rigdon, 144 S.W.3d at 290; Bowling v. Parker, 344 F .3d 487, 505-506 (6t" Cir.
2003) .
- 1 2-
Although we do not definitively decide whether the trial court lacked
jurisdiction over Penman's felony possession charge, as a general rule, we
believe that it is self-evident that a criminal defendant suffers prejudice when he
is sentenced for a charge over which the trial court lacks jurisdiction. Furthermore, although it ultimately may have made no difference on the amount of time
Penman actually served in prison due to the overriding effect of the PFO II
sentence, the fact that Penman received a five-year sentence for possession
when the possession charge contained in his indictment carried a maximum
penalty of twelve months, is, at least on the surface, compelling evidence of
prejudice . As with the deficient performance prong, however, we cannot
definitively decide whether Penman suffered demonstrable prejudice until such
time as an evidentiary hearing is held, when all parties and counsel can explain
why they took the unusual actions we have discussed. The trial court can then
consider the ramifications of those actions .
In short, given the uncertainty surrounding many aspects of this
case, it clearly does not fall outside the general rule we have set forth requiring a
trial court to hold a hearing on a motion to withdraw a guilty plea based on
alleged ineffective assistance of counsel. This case must be remanded with
instructions to hold an evidentiary hearing on Penman's motion to withdraw his
guilty plea .
C. Did the Trial Court Abuse Its Discretion When It Denied
Penman's Motion to Withdraw His Guilty Plea?
If the trial court concludes on remand that Penman's plea was
involuntary, it must permit Penman to withdraw his plea. If the trial court
- 1 3-
concludes that Penman's plea was voluntary, it must then exercise its discretion
to determine whether Penman should be permitted to withdraw his plea. In other
words, the trial court possibly could conclude that Penman's counsel was not
constitutionally ineffective but that fundamental fairness dictates that Penman
should, nevertheless, be permitted to withdraw his guilty plea due to the
markedly unusual circumstances surrounding it. Since that decision depends on
the facts adduced at the hearing on remand, we cannot speculate as to the
outcome .
111. CONCLUSION.
For the foregoing reasons, the judgment of the Christian Circuit
Court is vacated; and these matters are remanded with directions to hold an
evidentiary hearing on Penman's motion; to make a determination based on the
"totality of the circumstances" whether Penman's guilty plea was involuntary ;
and, if so, to permit Penman to withdraw his plea and reinstate his previous plea
of not guilty. If the trial court determines that Penman's plea was voluntary, it
must then decide in its discretion whether Penman's motion to withdraw his guilty
plea should be granted or denied.
Lambert, C.J .; Graves, McAnulty, Minton, Roach, and Scott, JJ .,
concur . Wintersheimer, J ., concurs in result only.
COUNSEL FOR APPELLANT :
Shannon Dupree
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Gregory D. Stumbo
Attorney General of Kentucky
Jeffrey A. Cross
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601
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