RODNEY A. ERVIN 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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
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RENDERED : FEBRUARY]. 2008
NOT TO BE PUBLISHED
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2007-SC-000959-MR
RODNEY A. ERVIN
V
APPELLANT
ON APPEAL FROM FULTON CIRCUIT COURT
HONORABLE TIMOTHY A. LANGFORD, JUDGE
NO . 07-CR-00061 8, 07-CR-00083
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Rodney A . Ervin, appeals his Fulton Circuit Court
conviction of three (3) counts of trafficking in a controlled substance in
the first degree, second or subsequent offense, a single count of
trafficking in marijuana, less than eight ounces, and two (2) counts of
being a persistent felony offender in the second degree, as a matter of
right, Ky . Const. ยง 110(2)(b) . By way of this appeal, he asserts a single
allegation of error: the trial court abused its discretion by refusing to
allow Appellant to withdraw his guilty pleas . RCr 8.10.
Facts
Appellant was indicted, in separate indictments, in April and June
of 2007, for three (3) counts of trafficking in a controlled substance in the
first degree, second or subsequent offense, trafficking in marijuana (less
than eight (8) ounces, and two (2) counts of being a persistent felony
offender in the second degree .
On October 17, 2007, Appellant entered guilty pleas on both
indictments. However, the jury had already been summoned, so the trial
court allowed the jury to hear the penalty phase evidence and
recommend a sentence . During the voir dire of the jury, the trial court
set out all the charges and the dates they occurred. Appellant
acknowledged signing forms asking to be allowed to enter a guilty plea
and said he understood them and fully discussed them with his attorney.
The trial judge asked Appellant if he understood the charges against him .
Appellant said that he did. The trial court explained the consequences of
a guilty plea, that Appellant was saying he was guilty of the charged
offenses . Appellant said he understood that and, further, no promises,
threats, or coercion were used to make him plead guilty. The trial court
explained that Appellant could be facing as many as 100 years in prison
on the six charges . I Appellant said he understood and still wanted to
plead guilty to each count. He told the court that he had no questions
concerning the plea and had no objection to using the jury to assess the
penalty.
On November 1, 2007, Appellant filed a motion to withdraw his
guilty plea, alleging that he was forced or coerced into pleading guilty as
a result of the makeup of the jury pool and the result of the jury selection
1 We note that, pursuant to KRS 532 .110(1)(c), Appellant would serve a
maximum of seventy (70) years incarceration for his offenses .
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process, thus making his guilty plea involuntary. Prior to final
sentencing, the trial court heard and denied the involuntariness motion .
On November 13, 2007, Appellant was sentenced to fifteen (15)
years imprisonment for each count of trafficking in a controlled
substance in the first degree, second or subsequent offender, and twelve
(12) months for trafficking in marijuana. Two (2) of the trafficking in a
controlled substance counts, one in each indictment, were enhanced to
twenty (20) years imprisonment by the convictions for being a persistent
felony offender in the second degree . The count from indictment 07-CR083 was run consecutive to the two counts from indictment 07-CR-061,
for a total sentence of 40 years. This appeal followed.
Analysis
Appellant argues the trial court abused its discretion by denying
his motion to withdraw his guilty plea and by failing to establish a
factual basis for Appellant's guilty plea. We note that, at trial, Appellant,
an African-American man, only objected to the racial make-up of the
jury, arguing the make-up pressured him into making a guilty plea. He
did not allege his guilty plea was involuntary nor did he argue the lack of
a factual basis vitiates his plea . Thus, his arguments in the instant
appeal are not properly preserved.
By first raising the lack of factual basis at the appellate level, it
denied the trial court an opportunity to respond to, and possibly rectify,
Appellant's complaint. We have long maintained that an Appellant may
not raise an issue on appeal that was not first presented to the trial
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court . RCr 9 .22 ; Salisbury v. Commonwealth , 556 S .W.2d 922, 926 (Ky.
App. 1977) (holding that RCr 9 .22 requires contemporaneous objection
because it gives the trial court the opportunity to correct any errors in
the proceedings) ; Commonwealth v . Pace, 82 S.W.3d 894, 895 (Ky. 2002)
("The general rule is that a party must make a. proper objection to the
trial court and request a ruling on that objection, or the issue is
waived .") .
However, even were we inclined to address the merits, it is clear
from the record that the guilty plea entered was voluntarily, knowingly,
and intelligently made, with Appellant's complete understanding of the
charges . RCr 8 .08 ; Bo kin v. Alabama, 395 U .S . 238 (1969); North
Carolina v. Alford, 400 U .S. 25 (1970) ; Haight v. Commonwealth , 760
S .W.3d 84, 88 (Ky. 1988) ; Sparks v. Commonwealth , 721 S .W.2d 726
(1986) ; Williams v. Commonwealth, 229 S.W.3d 49 (Ky. 2007) ; Kotas v.
Commonwealth, 565 S .W .2d 445, 447 (1978) (citing Brady v. United
States, 397 U.S . 742 (1970)) .
"To be valid, a plea must be knowing, intelligent and voluntary,
and a trial court shall not accept a plea without first determining that it
is made voluntarily with understanding of the nature of the charge ."
Williams v. Commonwealth, 229 S .W.3d 49, 50-51 (Ky. 2007) (citin
Haight, 760 S.W.3d at 88 and RCr 8 .08) . Pursuant to RCr 8 .10, a guilty
plea may be withdrawn with the permission of the court before judgment.
Such a motion is usually within the discretion of the court, although if
the defendant alleges the plea was involuntarily made, he is entitled to a
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hearing on the motion . Edmonds v . Commonwealth, 189 S .W.3d 558,
566 (Ky. 2006) . If the plea was voluntarily made, the trial court may,
within its discretion, either grant or deny the motion to withdraw the
guilty plea. Rigdon v. Commonwealth , 144 S .W.3d 283, 288 (Ky. App.
2004) . The inquiry into the voluntariness of the plea is inherently factspecific ; accordingly, the trial court's determination as to whether the
plea was voluntarily entered is reviewed under the clearly erroneous
standard. Edwards, 189 S . W.3d at 566 .
Appellant first argues the trial court committed clear error because
it never asked him whether he actually committed the acts charged in
the indictment . We note that there is no constitutional requirement for a
factual basis to a guilty plea. See Roddy v. Black, 516 F.2d 1380, 1385
(6th Cir. 1975) ("Alford held that there is no constitutional bar to
accepting a guilty plea in the face of an assertion of innocence, so long as
a defendant voluntarily, knowingly, and understandingly consents to be
sentenced on a charge . This being the rule, there is no constitutional
requirement that a trial judge inquire into the factual basis of a plea.") .
Cf. United States v. Tunnin , 69 F.3d 107, 111 (6th Cir . 1995) ("The
requirement that a sentencing court must satisfy itself that a sufficient
factual basis supports the guilty plea is not a requirement of the
constitution, but rather a requirement created by riles and statutes .") ;
United States v. Van Buren, 804 F.2d 888, 892 (6th Cir. 1986) ("Where
the crime is easily understood, several courts have held that a reading of
the indictment, or even a summary of the charges in the indictment and
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an admission by the defendant, is sufficient to establish a factual basis
under Rule 1 l .") ; Chapman v. Commonwealth, 265 S .W.3d 156, 182-183
(Ky. 2007) ("[I]t has been held that the requirement for a factual basis is
satisfied in cases that do not involve unduly complicated crimes if a
summary of the charges is read to the defendant and the defendant
admits to having committed the offense .") . Notably, Kentucky Rules of
Criminal Procedure (RCr) 8 .08, which governs pleas, does not expressly
contain the requirement that a trial court ascertain a factual basis before
accepting a guilty plea, unlike Federal Rules of Criminal Procedure
11(b)(3) . Id . at 183 n.72 . Thus, there was no clear error in accepting
Appellant's guilty plea without establishing a factual basis for the plea.
Therefore, Appellant's primary assertion of error is without merit.
Appellant, however, asserts that the underlying factual deficiency, which
resulted from Appellant's guilty plea before trial, serves to invalidate the
voluntariness of his guilty plea. We disagree again for reasons that a
factual basis for a guilty plea is not constitutionally required. Moreover,
the circumstances surrounding entry of the guilty plea clearly
demonstrate the voluntariness of the plea.
Here, before Appellant pled guilty to all charges, he 1) engaged in a
several minute long discussion about each of the charges and the
consequences of pleading guilty2 and 2) signed a motion to enter a guilty
plea which contained, inter alia, the following statements:
3 . 1 have reviewed a copy of the indictment and told my attorney all the
facts known to me concerning my charges . I believe he/she is fully
informed about my case. We have fully discussed, and I understand, the
charges and any possible defenses to them .
4 . I understand I may plead "not guilty" or "guilty" to any charge against
me .
5 . I further understand the Constitution guarantees to me the following
rights:
(a) the right not to testify against myself;
(b) the right to a speedy and public trial by jury at which I would
be represented by counsel and the Commonwealth would have to
prove my guilt beyond a reasonable doubt;
(c) the right to confront and cross-examine all witnesses called to
testify against me;
(d) the right to produce any evidence, including attendance of
witnesses, in my favor;
(e) the right to appeal my case to a higher court.
I understand that if Iplead "GUILTY," I waive these rights .
9 . I declare my plea of "GUILTY" is freely, knowingly, intelligently, and
voluntarily made; that I have been represented by counsel ; that my
attorney has fully explained my constitutional rights to me, as well as the
charges against me and any defenses to them; and that I understand the
nature of this proceeding and all matters contained in this document .
Given the Appellant's colloquy with the trial court as he entered his
guilty plea taken in conjunction with his statements made in his motion
to enter a guilty plea, it is clear that Appellant was fully aware of the
2 Judge: Alright Sir . So you're pleading guilty essentially to six offenses .
Four underlying offenses and two PFO's . Is that right? Pleading guilty to three
trafficking in cocaine Ervin : Yes, yeah.
Judge : counts
Ervin : Trafficking in marijuana .
Judge: Two of those . One trafficking in marijuana . And two PFO
seconds .
Ervin: Yes Sir.
Judge: You understand all of that: You want to plead guilty to
each and every one of those counts :
Ervin : Yes.
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charges against him, aware that by pleading guilty he was, in effect,
saying he was guilty of the crimes with which he was charged, and aware
of the potential consequences he was facing. Thus, it is clear that
Appellant entered a voluntary, knowing, and intelligent guilty plea.
Therefore, because the guilty plea was voluntarily made and
Appellant's motion to withdraw his plea was made between the trial and
final sentencing, pursuant to RCr 8 .10, the trial court could have, within
its discretion, either denied or permitted Appellant to withdraw his guilty
plea. See Rigdon, 144 S .W.3d at 288. "A trial court abuses its discretion
when it renders a decision which is arbitrary, unreasonable, unfair, or
unsupported by legal principles ." Edwards , 189 S .W.3d at 570 .
In the instant case, the trial court's decision was not arbitrary,
unreasonable or unfair and was supported by the legal principles
discussed above. Therefore, the trial court did not abuse its discretion
by denying Appellant's motion to withdraw his guilty plea. Thus, no
error occurred . Appellant's conviction is affirmed .
All sitting. All concur.
COUNSEL FOR APPELLANT :
Thomas More Ransdell
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentuc
Todd Dryden Ferguson
Assistant Attorney General
Office of the Attorney General
Office of the Criminal Appeals
1024 Capital Center Drive
Frankfort, KY 40601
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