Opinion
NO. 2013-CA-001203-MR
01-16-2015
EDDIE A. CLAY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Katie L. Benward Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky John Paul Varo Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FLOYD CIRCUIT COURT
HONORABLE JOHNNY RAY HARRIS, JUDGE
ACTION NO. 10-CR-00125
OPINION
AFFIRMING
BEFORE: DIXON, NICKELL, AND TAYLOR, JUDGES. NICKELL, JUDGE: Eddie A. Clay appeals the Floyd Circuit Court's acceptance and entry of his guilty plea to two sex crimes and subsequent denial of his motion to withdraw that plea. Following an evidentiary hearing, the trial court found the guilty plea had been entered "knowingly, truthfully, voluntarily, without any threats of force or promises" and with full awareness of the plea and the charges to which Clay was pleading guilty. The trial court went on to say, Clay
was aware of the direct consequences [of his guilty plea] and further that his eligibility or non-eligibility for parole does not render his guilty plea invalid. Further, the Court notes that until [Clay] completes his sentence and/or the Sexual Offender Treatment Program his contact or non-contact with his children cannot be ascertained and thereby has no affect upon his entry of a plea of guilty.On June 20, 2013, Clay was ultimately sentenced on one count of second-degree sodomy and one count of first-degree sexual abuse for which he received two concurrent five-year terms, to be followed by a five-year period of conditional discharge upon release from incarceration or parole. Upon review of the record, the briefs and the law, we affirm.
Kentucky Revised Statutes (KRS) 510.080, a Class C felony. Clay was originally charged with first-degree sodomy, KRS 510.070, a Class A felony, due to the victim being less than twelve years old. The plea deal represented a significant reduction in the severity of penalty.
KRS 510.110, a Class C felony due to the victim being less than twelve years of age.
FACTS
On August 18, 2010, Clay and his wife, Rhonda Clay, were separately indicted for sex offenses involving Clay's seven-year-old step-granddaughter. Clay was indicted on one count of first-degree sodomy and one count of first-degree sexual abuse.
In exchange for Clay's guilty plea, the Commonwealth agreed to recommend reduction of the first-degree sodomy charge to sodomy in the second degree with a sentence of five years on each count to be served concurrently. While the case was on track for trial on August 7, 2012, on August 2, 2012, Clay filed papers with the Floyd Circuit Court seeking to change his plea of not guilty to a plea of guilty.
During a colloquy with the trial court, Clay stated he understood the Commonwealth's offer to be as it was read aloud; was satisfied with the advice of appointed counsel and needed no additional time to confer with counsel; identified his signature on both the Commonwealth's offer and his motion to enter a guilty plea; understood his change in plea would waive constitutional rights; realized the court was not bound by the Commonwealth's recommendation; agreed a guilty plea was his best course of action; and, confirmed he had told his attorney all the facts. Defense counsel acknowledged representing Clay and expressed her belief that Clay was competent and pleading guilty was consistent with her advice and in his best interest. When asked whether he was pleading guilty to both offenses, Clay immediately responded, "Yes." When asked whether he was pleading guilty because he was in fact guilty, he hesitated a few seconds before answering, "Yes." Thereafter, the trial court accepted Clay's guilty plea, set sentencing for September 20, 2012, and ordered a pre-sentence investigation report and a sex offender report.
Immediately after Clay pled guilty, Rhonda pled guilty to a charge of complicity to commit second-degree sodomy. During her colloquy, she, too, quickly answered, "Yes," when asked if she was guilty, but hesitated briefly before answering, "Yes," when asked if she was pleading guilty because she was in fact guilty.
On August 17, 2012, Clay mailed a handwritten letter to the trial court seeking help and advice. He claimed his "lawyer and her boss" had talked him into accepting the Commonwealth's offer, and for the first time mentioned hearing loss in his left ear had caused him to miss some "stuff" during the plea colloquy. Clay said persistent subsequent attempts to reach his attorney had been unsuccessful and he would like to withdraw his guilty plea. Sentencing was delayed.
On November 19, 2012, a different attorney filed a motion for an evidentiary hearing and moved the trial court to allow Clay to withdraw his guilty plea because Clay
had not been made aware of certain severe collateral consequences to his guilty plea. Had he been made aware of these severe collateral consequences, he would not have entered his guilty plea.The "collateral consequences" were not identified in the pleading.
An evidentiary hearing was convened on December 5, 2012. Clay testified on his own behalf. He stated that since entering the plea, he had learned there were several "side effects" of doing so. During the sex offender evaluation, he had learned from the psychological evaluator, Sheri Lyn Rose Haas, he would have no unsupervised contact with his grandchildren who are very dear to him. He understood Ms. Haas to say he would have no contact with his grandchildren unless a psychiatrist or someone from her office gave permission. On cross-examination, Clay stated, "without the grandchildren, none of it matters to me." Clay further testified that had he known access to his grandchildren would be restricted, he would not have pled guilty. As a result, he asked to be allowed to withdraw his plea and stand trial. Clay acknowledged being told before accepting the plea agreement that he would be unable to hunt with his grandchildren using a gun, but understood bow hunting would be allowed.
Ms. Haas did not testify at the hearing. Clay mistakenly referred to her as a "psychiatrist."
After telling the trial court he was guilty during the plea colloquy, according to the comprehensive sex offender presentence evaluation, Clay told Haas he had not "engaged in inappropriate sexual behaviors and did not voice a willingness to engage in sex offender treatment." Clay's words were fatal to his acceptance into the sex offender treatment program (SOTP)—since admitting guilt is a requirement. Being a "non-admitter" in turn made him ineligible for parole because completion of SOTP is a precursor to parole eligibility. Seymour v. Colebank, 179 S.W.3d 886 (Ky. App. 2005). As a result of her interview with Clay, Haas recommended Clay:
• Enter and complete SOTP.On cross-examination, Clay testified his first attorney had told him he could do the SOTP outside prison. He also said he did not know he had to complete SOTP to become parole eligible. The prosecutor pointed out that Haas's recommendations were just that—recommendations that had not been imposed and Clay's statement to Haas that he wanted to withdraw his plea halted much of Haas's interview.
• Pay for treatment - both his and his victim's.
• Have no contact with his victim (his seven-year-old step-granddaughter) or any female child or adolescent without "express prior approval of his therapist and community supervision agent."
• Not reside with female children or adolescents.
• Not be employed in a position having contact with or control over female children or adolescents.
• Not date, live with or align with anyone having contact with or control over female children or adolescents without prior approval.
• Not supervise, instruct, lead or participate in organizations having contact with or control over female children or adolescents.
• Complete substance abuse/dependence evaluation and follow recommendations.
Although not argued to the trial court, the bearing of Haas's comments on Clay's decision appears to have been suspect due to the timing of events. Clay pled guilty on August 2, 2012. He mailed his handwritten letter to the trial court asking to withdraw his plea on August 17, 2012. That letter was filed in the court record on August 23, 2012, the same day Haas evaluated Clay. Thus, something other than a conversation with Haas—which did not occur until August 23, 2012, prompted Clay's request to withdraw his guilty plea.
The only other witness during the hearing was Hon. Emma Jones, the attorney who represented Clay during his guilty plea. Jones testified Clay asked her whether he would be able to hunt with his grandchildren; she stated while she and Clay discussed hunting, the issue was not addressed. Jones also stated she discussed SOTP with Clay, telling him it requires an admission of guilt; his entry date into SOTP was unknown; and, he would have to complete SOTP to become parole eligible. Jones went on to say while in prison, Clay has unrestricted access to his grandchildren, and it is unclear what access he will have to them upon his release. On cross-examination, Jones stated she had no documentation or recollection of advising Clay about potential restrictions on access to his family.
At the conclusion of the proof, the Commonwealth argued, "there's only so much we can control," prompting the trial court to express difficulty in assessing something that has yet to occur or be imposed. Defense counsel stated the trial court had discretion to allow withdrawal of the guilty plea and allow Clay to stand trial.
On March 5, 2013, the trial court entered an order denying the motion to withdraw the guilty plea and scheduling a sentencing date. Sentence was finally imposed June 27, 2013. This appeal followed.
ANALYSIS
RCr 8.10 authorizes a trial court to permit withdrawal of a guilty plea any time before imposition of judgment. Whether to allow withdrawal of a voluntary plea is left to the trial court's discretion, but the defendant is entitled to a hearing upon alleging his plea was involuntarily entered. Edmonds v. Commonwealth, 189 S.W.3d 558, 566-67 (Ky. 2006) (internal citations omitted).
Kentucky Rules of Criminal Procedure.
We review a trial court's determination of voluntariness for clear error. If the trial court's ruling is "supported by substantial evidence" we will not disturb it. Rodriguez v. Commonwealth, 87 S.W.3d 8, 10 (Ky. 2002); Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky. App. 2004). We review the trial court's denial of the motion to withdraw the guilty plea for an abuse of discretion. Bronk v. Commonwealth, 58 S.W.3d 482, 486 (Ky. 2001). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (internal citations omitted).
An intelligent plea is one entered by a competent defendant after consulting with competent counsel about "the consequences of entering a guilty plea, including the constitutional rights that are waived thereby," with full knowledge of the nature of the charges he is facing. Brady v. United States , 397 U.S. 742, 756, 90 S.Ct. 1463, 1473, 25 L.Ed.2d 747 (1970). His victim reported Clay had digitally penetrated her anus and later that evening had performed oral sex on her. Pleading guilty was a "voluntary and intelligent choice" among Clay's slim alternatives. Sparks v. Commonwealth, 721 S.W.2d 726, 727 (Ky. App. 1986) (citing North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970).
Counsel was preparing for trial until Clay chose to plead guilty just five days before the scheduled trial date. While Clay could have maintained his innocence and stood trial, he freely chose to forego trial and told the trial court as much when he executed the motion to enter a guilty plea, accepted the Commonwealth's offer, and responded to the trial court during the guilty plea colloquy. Whether the result of a jury's finding of guilt or a guilty plea, Clay would be in the same predicament he now faces—so long as he continues claiming innocence. Without an admission of guilt he remains ineligible for both SOTP and parole.
A plea made with "full awareness of the direct consequences of the plea" is voluntary. Brady, 397 U.S. at 755, 90 S.Ct. at 1472. Crucial to this appeal is the fact that parole eligibility "is not a 'direct consequence' of a guilty plea the ignorance of which would render the plea involuntary." Armstrong v. Egeler, 563 F.2d 796, 799-800 (6th Cir. 1977). As the Commonwealth argued during the evidentiary hearing, at this point, Clay is concerned only about an evaluator's recommendation. Until he is released from prison, if, how often and when he sees his grandchildren remains an unanswered question. How severe the restrictions on visits with his grandchildren will likely turn on whether he completes SOTP and that depends entirely on his willingness to admit guilt and complete the program.
A "direct consequence" of a guilty plea is the range of allowable punishments that may be imposed. Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364, 1365-66 (4th Cir. 1973), cert. denied, 414 U.S. 1005, 94 S.Ct. 362, 38 L.Ed.2d 241 (1973). In contrast, collateral consequences are those that are unique to the defendant and largely discretionary rather than automatic. Id., 475 F.2d at 1366.
Clay claims he should have been allowed to withdraw his guilty plea due to something—completely within his control—that happened three weeks after he pled guilty. Standing before the trial court on August 2, 2012, Clay professed guilt, complete satisfaction with counsel, and full understanding of what he was doing and why. Then, three weeks later, while being interviewed by Haas, he changed his story, claimed innocence, and said he intended to withdraw his guilty plea. While admitting guilt to a sex crime may not be easy, it is the linchpin to recovery and parole eligibility—items counsel discussed with Clay prior to entry of his guilty plea. While Clay now says he did not understand the criteria for entering SOTP and becoming parole eligible—his protests have come too late and are wholly inconsistent with the answers he gave in the courtroom on August 2, 2012. For example, he now claims his attorney and her boss "talked" him into pleading guilty, yet he signed the motion to enter guilty plea form stating,
Clay has not alleged ineffective assistance of counsel.
[o]ther than [the Commonwealth's] recommendation, no one, including my attorney, has promised me any other benefit in return for my guilty plea nor has anyone forced or threatened me to plead "GUILTY."Based upon our review of the guilty plea colloquy and supporting documentation, as well as the evidentiary hearing, we conclude Clay's guilty plea was entered "knowingly, truthfully, voluntarily, [and] without any threats of force or promises[,]" just as the trial court stated in its order denying the motion to withdraw. Thus, his plea was voluntary and withdrawal was wholly discretionary.
Clay voices concern about an evaluator's recommendation that has not been imposed—and may never be imposed. As noted previously, this is not a matter within the trial court's sentencing authority and does not constitute a direct consequence of entry of a guilty plea. Commonwealth v. Pridham, 394 S.W.3d 867, 877 (Ky. 2012). As stated in Pridham,
[m]atters outside the trial court's sentencing authority, everything from parole eligibility to deportation to the loss of the rights to vote and to possess firearms, have been deemed "indirect" or "collateral" consequences of
the plea, and the trial court's failure to advise a defendant of a guilty plea's collateral consequences has widely been held not to affect the validity of the plea. See Roberts, Ignorance is Effectively Bliss: Collateral Consequences, Silence, and Misinformation in the Guilty-Plea Process, 95 Iowa L.Rev. 119 (2009).Id. 394 S.W.3d at 877. As a result, denial of the motion to withdraw was not an abuse of discretion and, therefore, will not be disturbed on appeal.
Finally, a defendant cannot switch gears and assert new arguments on appeal. We are a court of review. Unless a trial court has had the opportunity to review a claim, we have nothing to review. Commonwealth, Dept. of Highways v. Taylor County Bank, 394 S.W.2d 581, 583 (Ky. 1965) (internal citation omitted). Clay asserts on appeal—for the first time—that he should have been allowed to withdraw his plea because of his hearing loss and his lack of a significant prior criminal record. While the hearing loss was mentioned in Clay's handwritten letter to the trial court, it was not argued as a ground for declaring his plea involuntary. Lack of a lengthy criminal record was not urged as a ground either. Neither ground being properly before us, there is nothing for us to review. Clay may not "feed one can of worms to the trial judge and another to the appellate court." Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976), overruled on other grounds by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010) (internal citations omitted).
During the guilty plea colloquy, Clay responded promptly and appropriately and never indicated he could not hear. During the evidentiary hearing, Clay exhibited no difficulty in hearing. Furthermore, counsel mentioned no difficulty conversing with her client.
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For the foregoing reasons, we discern no abuse of discretion in the trial court's denial of a motion to withdraw a voluntarily entered guilty plea and, therefore, affirm the Floyd Circuit Court's decision in all respects.
ALL CONCUR. BRIEFS FOR APPELLANT: Katie L. Benward
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
John Paul Varo
Assistant Attorney General
Frankfort, Kentucky