Opinion
NO. 2018-CA-001704-MR
05-22-2020
AHLIJIA MARQUISE GAILES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Brandon Neil Jewell Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Frankfort, Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE KELLY MARK EASTON, JUDGE
ACTION NO. 17-CR-00132 OPINION
AFFIRMING
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BEFORE: CALDWELL, JONES, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Ahlijia Marquise Gailes brings this appeal from a Hardin Circuit Court judgment and sentence of imprisonment entered November 5, 2018, imposing twelve-years' imprisonment. We affirm.
Appellant was indicted in 2017 by the Hardin County grand jury on one count of first-degree robbery and on one count of first-degree sexual abuse. The Commonwealth and appellant eventually negotiated a plea agreement. Under its terms, appellant would plead guilty to an amended charge of second-degree robbery and first-degree sexual abuse, and the Commonwealth would recommend a total of twelve-years' imprisonment. During a thorough plea colloquy, appellant twice said "no" when the circuit court asked if the facts asserted by the Commonwealth were true. Appellant's counsel told him that, to enter a guilty plea, he had to acknowledge the facts were accurate, stating "that is just how it works." September 10, 2018, Order at 5. The circuit court carefully explained that it would not allow appellant to plead guilty unless he was, in fact, guilty of the charges. The circuit court then asked if appellant agreed that he committed the criminal charges. Appellant stated, "yes, sir." The circuit court found the guilty plea was knowingly, intelligently, and voluntarily given. A few days later, the circuit court accepted appellant's guilty plea by written order entered October 30, 2017.
While awaiting sentencing, on November 22, 2017, appellant filed a pro se motion to withdraw his guilty plea pursuant to Kentucky Rules of Criminal Procedure (RCr) 8.10. In the motion, appellant claimed he only pleaded guilty because his counsel told him to do so and he "felt like [counsel] was not going to fight for his life." Appellant also claimed counsel only spent one hour with him reviewing the case, and appellant did not want to plead guilty because the charges were not true. Appellant indicated in his motion that he had terminated counsel and would be retaining a private attorney.
After a series of continuances, the circuit court conducted an extensive hearing upon the motion to withdraw the plea on August 14, 2018. In the course of this hearing, the circuit court heard from appellant, appellant's former counsel, and Dr. Eric Drogin, a psychologist hired by appellant. Dr. Drogin testified first and asserted appellant's intelligence quotient (IQ) tested at 72, and appellant effectively functioned at the level of a nine or ten-year-old child. Dr. Drogin also asserted appellant had passed a test designed to test for malingering. In contrast, appellant's former counsel, Mike Rice, testified appellant had a known reading problem, but he did not suffer from comprehension problems. Counsel testified he reviewed the consequences of the guilty plea with appellant, including SOTP (sex offender treatment program) and SOCD (sex offender conditional discharge). At no point did appellant's former counsel believe it necessary to raise a question regarding appellant's competence. Counsel asserted appellant did not misunderstand the evidence against him, insomuch as he disagreed with it. Finally, appellant testified on his own behalf. When asked what various terms meant, including SOTP and SOCD, appellant claimed a lack of understanding. Appellant also claimed he felt "threatened" when he previously entered his guilty plea.
The circuit court issued initial findings of fact and conclusions of law in an order entered September 10, 2018. The circuit court then conducted a second hearing on October 9, 2018, before denying appellant's motion to withdraw his guilty plea in an order entered October 23, 2018. In its orders, the circuit court viewed the testimony of appellant's former counsel as more credible and determined appellant entered the guilty plea voluntarily and intelligently. Subsequently, the circuit court sentenced appellant to a total of twelve-years' imprisonment. This appeal follows.
Appellant contends that the circuit court erroneously denied his motion to withdraw guilty plea. In support thereof, appellant particularly argues Dr. Drogin's psychological assessment indicated doubt as to whether there was a knowing, intelligent, and voluntary waiver of his constitutional rights. Further, appellant asserts he twice stated he was not guilty of the charges during the plea colloquy, and he only acknowledged guilt afterward because his counsel told him he was required to do so. Appellant's Brief at 7.
RCr 8.10 provides that a court may permit a defendant to withdraw a guilty plea before final judgment. If the guilty plea was entered involuntarily, the court must grant the motion to withdraw. Rodriguez v. Commonwealth, 87 S.W.3d 8, 10 (Ky. 2002). Conversely, if the guilty plea was entered voluntarily, the circuit court may utilize its discretion to grant or deny the motion. Id. A plea is considered valid if it "represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." Sparks v. Commonwealth, 721 S.W.2d 726, 727 (Ky. App. 1986). Additionally, we review the circuit court's findings of voluntariness under the clearly erroneous standard. Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky. App. 2004).
In the court's September 10, 2018, order on appellant's motion to withdraw, the circuit court entered exhaustive findings of fact and conclusions of law regarding the voluntariness of the plea. First, the circuit court considered appellant's plea colloquy, in which appellant initially stated "no" in response to the circuit court's questions regarding guilt. The circuit court found these comments were "taken out of context in support of the withdrawal motion." Following appellant's answer, the circuit court explained how the court routinely would not accept a guilty plea just by a defendant saying he's guilty. After reviewing all of the facts of the case on the plea offer with appellant, the judge clearly asked appellant if he committed the crimes, to which he voluntarily responded in the affirmative.
The circuit court also considered the question of appellant's intellectual abilities and made the following observations:
The Court makes several observations from the final hearing on August 14, 2018. Dr. Drogin is correct in his conclusion [appellant] has intellectual limitations. [Appellant] had an individual education plan while in
school, but he did graduate from high school. The Court has no doubt [appellant] has a below average I.Q., although whether it is correctly measured at 72 gives the Court some pause, as does the approximation of [appellant] essentially functioning at a nine or ten-year-old level. [Appellant] also has some reading disability, yet his comprehension is better than testing may have indicated.September 10, 2018, Order at 5-7.
At no point did any of [appellant's] attorneys (he has had three - Lee Davis, Rice, and Rogalinski) seek a competency evaluation under KRS [Kentucky Revised Statutes] 504.100. Dr. Drogin is not opining on this issue. He is rather opining on the voluntariness of [the] plea itself. This record would not require any further consideration of competency.
One example of the interaction between Dr. Drogin and [appellant] is significant. Dr. Drogin notes [appellant] "maintained he has not been sentenced." Dr. Drogin apparently believed this could not be correct and talks to [appellant] further to correct this. But [appellant] was correct. He had not been sentenced.
Rice testified he also recognized [appellant's] reading limitations, but Rice did not observe the same with comprehension. According to Rice, [appellant's] comprehension was not noticeably different from most other defendants he represented. Again, the Court can see a clear difference in prior court appearances and the testimony by [appellant] at the final hearing. Eventually, [appellant] loses credibility when all his statements during the hearing are evaluated.
The circuit court concluded appellant's plea was voluntary, and thus declined to allow the withdrawal of his plea. In its second order, entered October 23, 2018, following a second hearing on October 9, 2018, the circuit court considered additional questions regarding whether a trial would be feasible for appellant. The Commonwealth informed the circuit court that there was no desire to try the case. Furthermore, when brought before the circuit court at the October 9 hearing, appellant's co-defendant in this case declined to answer questions, invoking his rights under the Fifth Amendment of the United States Constitution. Despite the appellant's arguments urging the circuit court to consider the co-defendant's silence as an "insinuation of [appellant's] innocence[,]" the circuit court found the co-defendant's silence did not overcome the evidence establishing appellant's involvement in the crimes for which he pleaded guilty.
Based upon the evidence summarized above in the circuit court's thoroughly written orders, we cannot conclude that the circuit court's finding of voluntariness was clearly erroneous. There was more than substantial evidence of a probative value to support this finding. Additionally, the circuit court did not abuse its discretion by denying appellant's motion to withdraw his guilty plea. The court's decision was thorough, reasoned, supported by the facts, and legally sound. Accordingly, we hold that the circuit court did not commit error by denying appellant's motion to withdraw his guilty plea.
For the foregoing reasons, the judgment of the Hardin Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Brandon Neil Jewell
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky
Frankfort, Kentucky Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky