Opinion
NO. 2018-CA-000204-MR
05-24-2019
MARK WHITAKER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Andrea Reed Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM UNION CIRCUIT COURT
HONORABLE C. RENE WILLIAMS, JUDGE
INDICTMENT NO. 15-CR-00127 OPINION
AFFIRMING
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BEFORE: GOODWINE, LAMBERT, AND MAZE, JUDGES. LAMBERT, JUDGE: Mark Whitaker pleaded guilty to one count of flagrant nonsupport in the Union Circuit Court pursuant to a plea agreement. The trial court approved the agreement and sentenced Whitaker to five years' imprisonment with a recommendation of shock probation upon proof of employment. After the period for shock probation ran, Whitaker filed a motion to withdraw the plea, which the trial court denied. We affirm.
I. BACKGROUND
A Union County grand jury indicted Whitaker on one count of flagrant nonsupport on October 6, 2015. Whitaker worked with the Commonwealth and made child support payments until approximately September 2016. Although the Commonwealth and Whitaker negotiated a plea agreement, Whitaker failed to appear to enter the plea in October 2016. When Whitaker appeared before the trial court again, he was incarcerated on other charges in Hopkins County. Because of Whitaker's previous failure to appear, the trial court did not accept the Commonwealth's offer of five years of probation conditioned on payment of child support. However, the trial court later accepted a renegotiated plea bargain. The Commonwealth agreed to recommend a sentence of five years and shock probation "upon proof of employment and signing of a wage assignment" in exchange for Whitaker's plea of guilty. Whitaker waived separate sentencing, and a final judgment and a commitment order were entered on May 3, 2017.
The trial court set Whitaker's case for review on June 12, 2017, based on his representation that the Hopkins County case would be resolved by that date. However, Whitaker was still incarcerated on the Hopkins County charges, so his review was reset for June 14, 2017. Whitaker appeared before the trial court and reiterated his belief that the Hopkins County charges would soon be resolved in his favor, so the trial court set another review date and instructed Whitaker to return with proof of a job and wage assignment.
Whitaker's Hopkins County case was not resolved until a judgment and final sentence of probation was entered on October 6, 2017. Whitaker did not file a motion for shock probation upon resolution of those charges.
On November 7, 2017, after the time for shock probation ran, Whitaker filed a motion to withdraw his guilty plea. Whitaker argued he had not received the benefit of his bargain with the Commonwealth because the trial court did not grant shock probation. On January 4, 2018, the trial court entered an order denying the motion. Whitaker filed a timely notice of appeal on February 1, 2018. On July 31, 2018, he was released on parole for the flagrant nonsupport conviction at issue here. This appeal followed.
II. STANDARD OF REVIEW
"Generally, our standard of review in an appeal from the denial of a motion to withdraw a guilty plea is whether the trial court abused its discretion." Blanton v. Commonwealth, 516 S.W.3d 352, 356 (Ky. App. 2017) (citing Prater v. Commonwealth, 421 S.W.3d 380, 387 (Ky. 2014)). "The test for an abuse of discretion 'is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.'" Anderson v. Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007) (quoting Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000)).
III. ANALYSIS
The sole issue on appeal is whether the trial court abused its discretion by denying Whitaker's motion to withdraw his guilty plea. Whitaker argues his plea was involuntary because he misunderstood the plea bargain as implemented by the trial court. Generally, a defendant may move to withdraw a guilty plea "[a]t any time before judgment[.]" Kentucky Rules of Criminal Procedure (RCr) Rule 8.10 (emphasis added). When a defendant moves to withdraw his guilty plea after sentencing, such a motion may only be granted if "it appears that the accused's consent to plead guilty was unwillingly given and made under circumstances of fear, deceit, or coercion." Kidd v. Commonwealth, 255 Ky. 498, 74 S.W.2d 944, 946 (1934). Whitaker never argued, nor is there any proof in the record, that his plea resulted from "fear, deceit, or coercion." Id. He merely asserts the trial court should allow him to withdraw his plea because the resolution of his Hopkins County case did not occur as soon as he anticipated. Whitaker entered into a plea agreement with the hope that certain events, outside the trial court's control, would occur. Entering a plea based on a false hope cannot amount to "fear, deceit, or coercion." Id. Therefore, the trial court properly denied Whitaker's motion.
IV. CONCLUSION
For the foregoing reasons, we affirm the judgment of the Union Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Andrea Reed
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky