THOMPSON, JUDGE

NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MARY M. SHAW, JUDGE
ACTION NO. 12-CR-002567
OPINION
REVERSING AND REMANDING
BEFORE: CLAYTON, J. LAMBERT AND THOMPSON, JUDGES. THOMPSON, JUDGE: Sean O. Huddleston appeals from an order of the Jefferson Circuit Court denying his motion to withdraw his guilty plea pursuant to Kentucky Rules of Criminal Procedure (RCr) 8.10. He argues the trial court erred when it denied his motion to withdraw his guilty plea because his court appointed counsel rendered ineffective assistance and that even if voluntarily entered, the trial court abused its discretion when it denied his motion. Alternatively, he argues the trial court erred by denying his motion for a court order granting him access to, and the right to copy, the personnel file of his appointed counsel in the possession of the Louisville Metro Public Defender Office. We conclude the trial court abused its discretion when it denied Huddleston's motion to withdraw his guilty plea.

Huddleston and Mortina Campbell were involved in a romantic relationship and lived together. On July 16, 2012, Campbell reported to police that Huddleston sexually and physically assaulted her in their home. Huddleston was arrested and charged with one count of first degree sodomy; one count of first degree wanton endangerment; assault in the fourth degree; domestic violence, minor injury; and unlawful imprisonment in the first degree.

Huddleston was arraigned on July 17, 2012, and appointed a public defender from the Louisville Metro Public Defender Office. A preliminary hearing was scheduled for July 27, 2010. Sean and his appointed counsel, Ashley Michael, appeared. After Huddleston waived the time requirement for a preliminary hearing under RCr 3.10, a preliminary hearing was scheduled for July 30, 2012.

On July 30, 2012, the Commonwealth made a "rocket docket" plea offer requiring that Huddleston enter a guilty plea to sexual abuse in the first degree, wanton endangerment in the first degree, assault in the fourth degree, and domestic violence, minor injury. In exchange, the Commonwealth agreed to recommend nine-years' imprisonment. Represented by Michael, Huddleston filed a motion to enter a guilty plea and a waiver of rights.

In accordance with the rocket docket plea agreement, on August 17, 2012, the Commonwealth issued an Information charging Huddleston with the three offenses in the plea offer. Huddleston appeared for arraignment in the Jefferson Circuit Court and entered a plea of guilty to the charged offenses. Sentencing was scheduled for November 5, 2012.

On October 22, 2012, Michael was terminated by the Louisville Metro Public Defender Office. An affidavit of Amy Hannah, employed by that same office, accompanied Huddleston's motion to withdraw his guilty pleas.

The affidavit stated that on October, 24, 2012, Hannah received a telephone call from Campbell. Campbell informed Hannah that Michael talked with her about Huddleston's case and conveyed information about the case. Campbell also told Hannah that Michael threatened if she recanted her allegations against Huddleston, she could be prosecuted for perjury. Hannah sent Angela Rea, also an attorney in the Louisville Metro Public Defender Office, an e-mail regarding her conversation with Campbell.

Rea was assigned to Huddleston's case. Rea's affidavit was also submitted with Huddleston's motion to withdraw his guilty plea. She stated that she spoke with Campbell who told Rea that Michael inappropriately discussed Huddleston's case with her and Michael told Campbell she "was going to get [Huddleston]" for the crimes he allegedly committed.

Rea appeared at the sentencing hearing and made a motion for appointment of counsel for Huddleston from the Assigned Counsel Panel Plan. The motion was based on a "potential conflict of interest which precludes representation of Huddleston by the Office of the Public Defender." The motion was granted and an attorney in private practice was appointed. Huddleston's sentencing was scheduled for February 4, 2013.

Huddleston's newly appointed counsel moved to withdraw Huddleston's guilty plea on January 31, 2013. At an evidentiary hearing, Huddleston called four witnesses: Campbell, Hannah, Rea and Michael. No witnesses were called by the Commonwealth.

Campbell testified that she met Michael prior to her representation of Huddleston when Michael was representing a friend, Angela Leonard, in a separate criminal matter. On July 27, 2013, when Huddleston's case was scheduled for a preliminary hearing, Michael approached her outside the courtroom and asked to see any injuries caused by Huddleston. Upon seeing her injuries, Michael stated that she (Michael) was "going to get" Huddleston and that nobody should have done what Huddleston had to Campbell.

Campbell testified that later, at Huddleston's request, she called Michael and told her that Huddleston had suffered enough. Michael told Campbell that if she did not want to pursue the charges against Huddleston, she could be prosecuted for perjury. Campbell further testified that Michael instructed her not to talk to Huddleston and stay distant from him.

Campbell recalled telephoning the Louisville Metro Public Defender Office but was unable to reach anyone, left a message, and Rea returned her call. Campbell informed Rea about her conversation with Michael, including her statement regarding possible perjury charges. Campbell denied she told Michael she was going to recant her testimony and insisted she was still going forward with her allegations.

Hannah testified that Campbell contacted her because of Campbell's concern about Michael. She recalled that Campbell was concerned about threatened perjury and Michael's sharing of information regarding the case.

Rea testified that she received an e-mail from Hannah and telephoned Campbell. During the conversation, Campbell told her about Michael's statement that she would "get" Huddleston.

Michael testified that she spoke to Campbell on two occasions: once prior to Huddleston's guilty plea and again after he entered his guilty plea. The first time was after Huddleston appeared in district court. Her conversation with Campbell confirmed to Michael the facts leading to the charges against Huddleston.

The second time she spoke with Campbell was after the guilty plea when Campbell telephoned her and informed her Huddleston had suffered enough and she did not want him to be imprisoned. After confirming with Campbell that Huddleston committed the crimes alleged, Michael recalled that Campbell stated she wanted to tell the prosecutor that Huddleston did not commit the alleged crimes. Michael then advised Campbell that if she lied to the prosecutor, she could be prosecuted for perjury. Michael was asked: "Why did you find it necessary to tell her [Campbell] that the prosecution might go after her for perjury if she recanted her testimony.?" Michael responded: "Because I consider myself a decent human being .... and I was telling her as a person[.]"

Michael also testified that she spoke with her supervisor, Patricia Eschner, regarding Campbell's reluctance to see Huddleston punished. Michael testified that Eschner told her to do nothing with the information and not share it with Huddleston.

Subsequent to the hearing, Eschner submitted an affidavit to the court. She stated that she spoke to Michael regarding rocket docket pleas generally, and cautioned about such pleas prior to any discovery. She stated she never told Michael to tell Huddleston to accept the plea agreement. Eschner instructed Michael to confirm that Huddleston clearly understood his rights before agreeing and the possibility of any defense. She further stated: "Contrary to what [Michael] said at the aforementioned hearing, I suggested that [Michael] could inform Ms. Campbell that she could either: (1) talk to the prosecutor about her wishes or (2) agree to give a statement at the sentencing hearing in support of leniency or probation." The trial court denied Huddleston's request to reopen the hearing based on Eschner's affidavit but ruled it would consider her affidavit in making its decision.

The trial court issued an opinion and order denying Huddleston's motion to withdraw his guilty plea. The trial court found Campbell's testimony was not credible and motivated by her love for Huddleston and his ability to persuade and manipulate her. The trial court concluded Huddleston voluntarily entered his guilty plea and denied the motion.

RCr 8.10 provides: "At 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." If a plea was involuntarily entered, the motion to withdraw must be granted. Even a guilty plea entered voluntarily may, within the trial court's discretion, be withdrawn. Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky.App. 2004).

The trial court's determination on whether the plea was voluntarily entered is reviewed under the clearly erroneous standard. A decision which is supported by substantial evidence is not clearly erroneous. If, however, the trial court determines that the guilty plea was entered voluntarily, then it may grant or deny the motion to withdraw the plea at its discretion. This decision is reviewed under the abuse of discretion standard. A trial court abuses its discretion when it renders a decision which is arbitrary, unreasonable, unfair, or unsupported by legal principles.

Huddleston contends his plea was involuntarily entered because he was deprived effective assistance of counsel. The Sixth Amendment, applicable to the states through the Fourteenth Amendment, guarantees a criminal defendant the right to assistance of counsel. "[I]t has long been recognized that the right to counsel is the right to the effective assistance of counsel." U.S. v. Cronic, 466 U.S. 648, 654, 104 S.Ct. 2039, 2044, 80 L.Ed.2d 657 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771, n. 14, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970)). Effective counsel means conflict-free counsel. Bartley v. Commonwealth, 400 S.W.3d 714, 719 (Ky. 2013).

As a general rule, where a defendant argues his plea was involuntary due to ineffective assistance of counsel, a defendant must meet the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must 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.

Huddleston first argues he does not need to establish the second prong of the Strickland test. He contends that Michael's communications with Campbell created a conflict of interest and, therefore, he is not required to demonstrate that there is a reasonable probability he would not have pleaded guilty.

Huddleston is correct that the United State Supreme Court has carved out an exception to this general rule and has "spared the defendant the need of showing probable effect upon the outcome, and have simply presumed such effect, where assistance of counsel has been denied entirely or during a critical stage of the proceeding." Mickens v. Taylor, 535 U.S. 162, 166, 122 S.Ct. 1237, 1240-41, 152 L.Ed.2d 291 (2002). '"[C]ircumstances of that magnitude' may . . . arise when the defendant's attorney actively represented conflicting interests." Id. A defendant is entitled to a presumption of prejudice on showing an actual conflict of interest by the representation of multiple clients. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Huddleston argues that any conflict of interest is sufficient to warrant application of the presumption of prejudice.

In Mitchell v. Commonwealth, 323 S.W.3d 755, 759-60 (Ky.App. 2010), our Supreme Court addressed the exception to Strickland's prejudice standard:

[P]rejudice is presumed when counsel is burdened by an actual conflict of interest. In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel's duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. Given the obligation of counsel to avoid conflicts of interest and the ability of trial courts to make early inquiry in certain situations likely to give rise to conflicts ... it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest. Even so, the rule is not quite the per se rule of prejudice that exists for the Sixth Amendment claims mentioned above. Prejudice is presumed only if the defendant demonstrates that counsel "actively represented conflicting interests" and that "an actual conflict of interest adversely affected his lawyer's performance."

In Mickens, the Supreme Court indicated its disapproval of a broad interpretation of its holding in Culyer. Although arguably dicta, the Court nevertheless made clear its criticism of lower federal courts that have applied the exception to conflicts other than those involving dual representation of defendants with opposing interest. Mickens, 535 U.S. at 175, 122 S.Ct. at 1245. In Mitchell, our Supreme Court expressed the same view stating that an actual conflict of interest occurs when an attorney represents two clients with incompatible interests. Mitchell, 323 S.W.3d at 760.

In this case, Michael communicated with Campbell on two occasions: The first, when Michael allegedly told Campbell she would "get" Huddleston, which was denied by Michael, and the second when she advised Campbell that she could be prosecuted for perjury. Michael admitted to the second communication. However, we are unwilling to say that Michael's suggestion to Campbell that she could be prosecuted for perjury if she changed her version of events amounted to a conflict of interest sufficient to warrant the application of the exception to Strickland's prejudice requirement.

Pursuant to RCr 8.10, even a voluntary guilty plea may be withdrawn prior to final sentencing. In Williams v. Commonwealth, 229 S.W.3d 49, 52 (Ky. 2007), the defendant pointed out that some courts in this Commonwealth "routinely grant motions to withdraw guilty pleas, and others apply a presumption against granting RCr 8.10 motions[.]" Despite the claim of inherent arbitrariness, the Court was not inclined to adopt specific criteria for withdrawal of a guilty plea. Instead, the Court held each case must be decided on its own facts and that the trial court "is in the best position to discern the totality of the circumstances surrounding a guilty plea." Id. at 53. Those circumstances include "the effect withdrawal of a guilty plea will have on the court, the prosecution, and victims[.]" Id. at 52. It pointed out that "defendants have a protection against arbitrary action in that they have a remedy by appeal if they believe that discretion has been abused in the denial of an RCr 8.10 motion." Id. at 53.

Although the trial court has discretion to allow withdrawal of a guilty plea, it cannot be unfettered discretion or the right to appeal would be meaningless. If the trial court's decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles" it must be reversed. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Here, we believe it was unfair and unjust to deny Huddleston's motion to withdraw his guilty plea.

Even if we discount Campbell's testimony that, prior to advising Huddleston to take the plea offer, Michael told Campbell she would "get" Huddleston for his alleged criminal acts, we are troubled by the legal representation afforded to Huddleston. Counsel's interaction with the victim in this case is not our only concern. The guilty plea in this case was entered after a hastily accepted rocket docket plea offer made by the Commonwealth in a case involving violent sex offenses. Here, the stakes for Huddleston were high. Lured by the Commonwealth's offer of a lesser sentence and accepting the plea offer just thirteen days after his initial arraignment, Huddleston entered a plea of guilty without the benefit of any discovery, investigation, or meaningful exploration of possible defenses. Michael testified that she knew consent could be a defense available to Huddleston but, with the offer on the table for only a brief time, advised him to plead guilty.

Additionally, after being informed by Campbell that she did not want Huddleston to be punished, Michael did not approach the prosecutor to negotiate another plea offer and did nothing further with the information. Contrary to Michael's decision to ignore Campbell's request for leniency, the victim's wishes are highly relevant in the plea process. KRS 421.500(6) expressly states: "The victim shall be consulted by the attorney for the Commonwealth on the disposition of the case including . . . a negotiated plea[.]" As noted by the Court in Williams, the impact on the victim of allowing a defendant to withdraw a guilty plea is to be considered by the trial court. Williams, 229 S.W.3d at 52.

After the Louisville Public Defender's Office discovered it had a conflict of interest, Huddleston was appointed a private attorney who immediately moved to withdraw Huddleston's guilty plea. We conclude that under the totality of the circumstances, the trial court abused its discretion when it denied Huddleston's motion to withdraw his guilty plea and either negotiate another plea or proceed to trial.

Based on the forgoing, the order of the Jefferson Circuit Court is reversed and remanded to permit Huddleston to withdraw his guilty plea.

ALL CONCUR. BRIEFS FOR APPELLANT: J. Vincent Aprile, II
Louisville, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
J. Hays Lawson
Assistant Attorney General
Frankfort, Kentucky