TERRENCE L. FINCH V. COMMONWEALTH OF KENTUCKY
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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
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RENDERED : FEBRUARY 21, 2007
NOT TO BE PUBLISHED
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2007-SC-000082-MR
TERRANCE FINCH
V.
_
APPELLANT
ON APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE JOHN L. ATKINS, JUDGE
05-CR-000412
COMMONWEALTH OF KENTUCKY
APPELLEE
AND
2007-SC-000083-MR
TERRANCE L . FINCH
APPELLANT
ON APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE JOHN L. ATKINS, JUDGE
05-CR-000687
APPELLEE
COMMONWEALTH OF KENTUCKY
AND
2007-SC-000084-MR
TERRANCE L. FINCH
APPELLANT
ON APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE JOHN L. ATKINS, JUDGE
06-CR-000060
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
This case is on direct appeal from the denial of Appellant's, Terrance Finch's,
motion to withdraw his guilty plea and the subsequent final judgment of the Christian
Circuit Court sentencing him to a total of twenty (20) years imprisonment on convictions
for first degree trafficking in a controlled substance (first offense), first degree trafficking
in a controlled substance (second offense), and second degree persistent felony
offender (PFO). Appellant argues two grounds on appeal. He first alleges that the trial
court abused its discretion and denied him due process of law by refusing to permit him
to withdraw his guilty plea prior to sentencing, or in the alternative, by failing to hold an
evidentiary hearing on his request to withdraw his guilty plea. Appellant's second claim
is that he was denied his Sixth Amendment right to counsel during a critical stage of the
criminal proceeding . Having considered the record, the parties' briefs, and the
applicable case law, we affirm the final judgment and sentence of the Christian Circuit
Court.
Appellant was indicted on July 15, 2005, for first degree trafficking in a controlled
substance (cocaine), first offense, a crime that took place in March 2005. On December
16, 2005, he was indicted for first degree trafficking in a controlled substance (cocaine),
second offense, a crime that took place in May 2005. Finally, on February 2, 2006,
Appellant was indicted for being a first degree persistent felony offender .
In exchange for a guilty plea to the crimes charged, the Commonwealth agreed
to recommend that Appellant's first degree PFO charge be amended to second degree
PFO, that Appellant be sentenced to a total of ten (10) years, and that he be released
on his own recognizance pending final sentencing . The prosecutor's written plea offer
also included a provision stating that failure to appear at sentencing would result in the
Commonwealth's recommendation that the maximum sentence allowed by law be
imposed on all charges . Appellant agreed and signed the Commonwealth's plea offer.
Pursuant to the plea agreement, on May 17, 2006, Appellant appeared in court
with counsel and entered a guilty plea to one count of trafficking in a controlled
substance, first offense, one count of trafficking in a controlled substance, second
offense, and to being a persistent felony offender in the second degree . During this
hearing, Appellant was duly sworn and informed the court that he understood the offer.
Appellant stated that he had ten (10) years of education, was not under the influence of
any medication or alcohol, did not have mental or emotional problems affecting his
ability to understand, was satisfied with the performance of his attorney, and understood
the rights he was waiving by pleading guilty . He also stated that his signature appeared
on the motion to enter a guilty plea along with his attorney's signature . The trial court
then informed Appellant that he was to receive a ten (10) year sentence on the
aforementioned charges unless he failed to appear at final sentencing . The judge
explicitly warned,
Judge: You are not going to make the mistake of running off are you?
Appellant : No sir.
Judge : Okay, because if you do, you are going to get the maximum on
these sentences, they are going to run consecutively, and you are going to
get whatever additional time you get for bond jumping . So please don't
make the foolish mistake of not coming back to court for final sentencing .
The court then informed Appellant that if he failed to appear for sentencing, he would be
sentenced to the maximum penalty, twenty (20) years. During the guilty plea colloquy,
Appellant stated that he was not under any pressure to enter a plea or under any
threats . He admitted that he had committed the aforementioned offenses set out in the
indictment . Appellant told the court that the plea was a sensible and reasonable way to
resolve his case . Appellant's attorney informed the court that he was satisfied that his
client was entering the plea voluntarily, understandingly, and knowingly. More
specifically, Appellant's attorney explicitly stated that he had discussed with Appellant
the consequences of failing to appear at final sentencing . The trial court accepted
Appellant's plea as knowing, voluntary, and intelligent and released Appellant on his
own recognizance pending sentencing .
At the scheduled sentencing hearing on June 21, 2006, Appellant failed to
appear . Defense counsel informed the court that he had been unsuccessful in
attempting to reach Appellant. The court subsequently issued a bench warrant for
Appellant's arrest.
After Appellant was taken into custody, sentencing was held on August 23, 2006.
In accordance with the provision in the plea agreement expressly stating that the
Commonwealth would recommend the maximum penalty if Appellant failed to appear at
the sentencing hearing, the Commonwealth so recommended and Appellant was
sentenced to twenty (20) years . Prior to the court's decision, Appellant stated that if the
prosecutor chose to pursue the higher sentence, he desired to withdraw his guilty plea
and proceed to trial. Appellant alleged that he had not understood the terms of the
agreement and there was new evidence available that had been unknown to him at the
time of his plea. The trial court responded, "In view of the fact that Mr. Finch failed to
appear for sentencing being aware of the consequences of that failure," Appellant's
motion to withdraw his guilty plea was denied .
In reviewing Appellant's first claim of error, we look to a similar factual scenario
appearing in Jones v. Commonwealth,' a case not cited by either party. The defendant
in Jones entered into a plea agreement in which the Commonwealth promised to
recommend a sentence of six (6) years upon the conditions that Jones give a statement
of his illegal activities ; meet with a member of the Attorney General's office and give a
full and complete statement ; and reappear in court for the final sentencing . If the
defendant complied with these provisions, the Commonwealth agreed not to oppose
parole in his case and to advise the parole board of his cooperation . As with the facts in
the case sub judice , if the defendant did not comply with these conditions, the
Commonwealth would recommend a maximum sentence of twenty (20) years instead of
the agreed upon six (6) years . The trial court accepted the defendant's guilty plea and
released him on bond pending his date of sentencing . The defendant in Jones did not
appear for sentencing and a bench warrant was issued for his arrest. Ultimately, he
was sentenced to twenty (20) years in prison in accordance with the provision in the
plea agreement that provided for the maximum penalty.
In Jones, we concluded that the circuit court did not err by imposing the twenty
(20) year sentence as recommended by the Commonwealth and reflected in the plea
agreement. We held,
[Defendant] pled guilty and agreed to abide by the terms of the plea
bargain including the requirement that he appear in court on the date
assigned for sentencing . He acknowledged his understanding of the
possible sentencing consequences should he fail to appear. Therefore,
because [defendant] failed to appear for sentencing the recommended
sentence was correctly imposed under the terms of the plea agreement .
' Jones v. Com. , 995 S.W.2d 363 (Ky. 1999) .
2 Id. at 365 .
3 Id. at 365.
We discovered no due process violation, no substantial or palpable error of any kind,
and therefore, no manifest injustice . Instead, "The plea condition providing for a sixyear sentence if the plea agreement was complied with, was a legitimate plea bargain
offer which was properly withdrawn by the Commonwealth after the breach by
[defendant] ." a
In the case sub,judice , the facts are comparable. Appellant pled guilty and
agreed to abide by the terms of the plea bargain, including the requirement that he
appear in court for sentencing . The court concluded that Appellant's guilty plea was
knowing, voluntary, and intelligent . Not only did the plea agreement discuss the penalty
for his failure to appear, his attorney reiterated the ramifications and the judge explicitly
warned Appellant on the record that he would receive the maximum sentence for the
"foolish mistake of not coming back to court for final sentencing ." With that knowledge,
Appellant subsequently failed to appear for sentencing . Upon Appellant's breach of the
plea bargain, the Commonwealth was no longer obligated to recommend the lower
sentence of ten (10) years .
Appellant next argues that the trial court abused its discretion and denied him
due process of law by refusing to allow him to withdraw his guilty plea prior to
sentencing . Aware that his failure to appear for the sentencing hearing would destroy
the Commonwealth's offer to recommend a ten (10) year sentence, he moved to
withdraw his guilty plea . Appellant expressed concern that his breach of the plea
agreement could result in a higher sentence recommendation by the Commonwealth .
4
Id . at 366 .
In fear of a higher penalty, he asked the court to withdraw his guilty plea and proceed to
trial.
In reviewing the trial court's decision to deny Appellant's motion to withdraw, we
must first analyze the trial court's finding that Appellant's guilty plea was voluntary . If a
guilty plea is made voluntarily, the trial court may, within its discretion, either grant or
deny the motion to withdraw. Conversely, if a guilty plea is made involuntarily, a motion
to withdraw shall be granted. 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. Appellant does not make any of those allegations
on appeal .
In evaluating the voluntariness of Appellant's guilty plea, we view the totality of
the circumstances surrounding the plea, and because the trial court is in the best
position to make this determination, we review the trial court's determination under the
clearly-erroneous standard .' In this case, the trial court conducted a guilty plea colloquy
on the record, questioning Appellant under oath regarding the contents of the plea and
of its consequences .$ Appellant said he understood the offer, had ten (10) years of
education, was not under the influence of medication or alcohol, did not have mental or
emotional problems affecting his ability to understand, was satisfied with the
performance of his attorney, and understood the rights he would be waiving by pleading
guilty . He was also informed about the recommended ten (10) year sentence in the
5 Rodriguez v. Com., 87 S.W .3d 8, 10 (Ky. 2002).,
s Edmonds v.
Com. , 189 S.W.3d 558, 566 (Ky. 2006).
Rigdon v. Com . , 144 S .W.3d 283, 288 (Ky.App . 2004) .
8 O'Neil v. Com. , 114 S.W.3d 860, 863 (Ky.App. 2003), citing Boykin v. Alabama ,
395 U .S. 238, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969).
plea agreement and the ramifications for failure to appear for the final sentencing. The
judge explicitly warned that if Appellant failed to appear at the sentencing hearing, he
would face the maximum sentence of twenty (20) years . Appellant still chose to enter
the plea and stated he was not under any pressure or threats to do so. The trial court
accepted the plea on the record as knowing, voluntary, and intelligent. Thus, the trial
court's determination that the plea was voluntarily made is supported by substantial
evidence in the record. As we have previously said, "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 ."9
Thus, "[a] decision which is
supported by substantial evidence is not clearly erroneous ."' ° Therefore, we conclude
that Appellant voluntarily entered the guilty plea, and because it was voluntary, the trial
court had the discretion to grant or deny his motion to withdraw.
Upon a determination that the guilty plea was voluntary, the trial court had
discretion to grant or deny the motion to withdraw the voluntary guilty plea. Our review
is for abuse of discretion ." We have previously held that a trial court abuses its
discretion when it renders a decision that is arbitrary, unreasonable, unfair, or
unsupported by sound legal principles . 12 Appellant does not allege that the court's
denial of his motion to withdraw fits in any of these categories . Instead, Appellant relies
on RCr 8 .10, which provides that "[a]nytime before judgment the court may permit the
9 Edmonds v. Com. , 189 S .W.3d at 568.
'° Rigdon v. Com . , 144 S.W .3d at 288 .
" Id . at 288.
. 12 Id . at 288, citing Goodyear Tire and Rubber Co. v. Thompson , 11 S .W.3d 575,
581 (Ky. 2000).
plea of guilty . . . to be withdrawn and a plea of not guilty substituted ." Appellant
contends that because his motion to withdraw the guilty plea took place "before
judgment," he is entitled to withdraw the plea . The language of the Rule does not
support this view. Rather, RCr 8.10 merely provides the trial court with discretion to
"permit the plea of guilty . . . to be withdrawn." The trial court applied its discretion, and
we see nothing even close to an abuse of discretion in denying Appellant's motion to
withdraw .
In the alternative, upon his request to withdraw the plea, Appellant alleges that
the court should have held an evidentiary hearing pursuant to RCr 8.10. In this regard,
we said in Edmonds v. Commonwealth, "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
motion whenever it is alleged that the plea was entered involuntarily." (Emphasis
added) . 13 Only when the guilty plea is alleged to have been entered involuntarily,
considering the totality of the circumstances, must a trial court grant a defendant's
motion to withdraw the plea or provide the defendant with an evidentiary hearing . A
hearing on Appellant's motion to withdraw was not required .
The final issue is that Appellant was denied his Sixth Amendment right to counsel
during a critical stage of his criminal proceeding . At issue are statements by Appellant's
attorney to the court when questioned about whether Appellant had understood the plea
agreement at the time he pled guilty. Appellant's attorney told the court he had read
over the plea agreement with Appellant and had believed that Appellant understood the
13
Edmonds v. Com . , 189 S .W.3d at 566, citing Rodriquez v. Com, 87 S.W.3d 8,
10 (Ky. 2002) ; Bronk v. Com . , 58 S.W.3d 482, 486 (Ky. 2002); see also Brady v. United
States , 397 U.S . 742, 749, 90 S .Ct. 1463, 1469, 25 L.Ed.2d 747 (1970).
agreement . Otherwise, Appellant's attorney said he would not have signed the plea
agreement . Appellant now contends that those statements by his attorney were "clearly
advocating against Mr. Finch's cause at that point ." This is nonsense as Appellant's
attorney had a duty of candor with the tribunal . 14
Appellant further argues that his attorney's conduct fell below an objective
standard of reasonableness and prejudiced him, violating Strickland .15 Thus, Appellant
seems to be alleging ineffective assistance of counsel . This is not before us here . As
we held in Humphrey v. Commonwealth , "As a general rule, a claim of ineffective
assistance of counsel will not be reviewed on direct appeal from the trial court's
judgment, because there is usually no record or trial court ruling on which such a claim
can be properly considered . "16 In this case, no trial court claim of ineffective assistance
of counsel has been made . We have said, "[C]laims of ineffective assistance of counsel
are best suited to collateral attack proceedings, after the direct appeal is over, and in
the trial court where a proper record can be made ."" We therefore decline to review
any issue in this regard in this proceeding and hold that an ineffective assistance of
14
SCR 3.130(3 .3) ["Candor toward the tribunal. (a) A lawyer shall not knowingly:
(1) Make false statements of material fact or law to a tribunal; (2) Fail to disclose a
material fact to the tribunal when disclosure is necessary to avoid a fraud being
perpetrated upon the tribunal; (3) Offer evidence that the lawyer knows to be false. If a
lawyer has offered material evidence and comes to know of its falsity, the lawyer shall
take reasonable remedial measures ."] .
15
Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
1984).
16 Humghrev v. Com, 962 S.W.2d 870, 872 (Ky. 1998) (The Court continued,
"This is not to say, however, that a claim of ineffective assistance of counsel is
precluded from review on direct appeal, provided there is a trial record, or an evidentiary
hearing is held on motion for a new trial, and the trial court rules on that issue." Citing
Hopewell v. Com . , 641 S .W.2d 744 (Ky. 1982) ; Wilson v. Com . , 601 S.W.2d 280,284
(Ky . 1980) .] .
" Humphrey v. Com. , 962 S.W.2d at 872.
10
counsel claim must await another day after having been raised in a post-conviction RCr
11 .42 motion . 18
For the foregoing reasons, the final judgment and sentence of the Christian
Circuit Court is affirmed .
All sitting . All concur.
18 See Humr)hrev v. Com . , 962 S.W.2d at 872 .
COUNSEL FOR APPELLANT :
Donna L. Boyce
Appellate Branch Manager
Department of Public Advocacy
Suite 302, 100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentucky
Courtney J . Hightower
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
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