Opinion
NO. 2014-CA-000360-MR
06-19-2015
ALFONSO J. COWAN, JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Emily Holt Rhorer Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Tom Van De Rostyne Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 12-CR-001246
OPINION
AFFIRMING
BEFORE: JONES, STUMBO, AND VANMETER , JUDGES. VANMETER, JUDGE: Alfonso J. Cowan, Jr. appeals from the January 31, 2014, judgment of conviction and sentence of the Jefferson Circuit Court. That judgment found Cowan guilty of first-degree assault; possession of a handgun by a convicted felon, two counts; first-degree wanton endangerment, four counts; and violating a pretrial order of release, two counts, and sentenced him to a total of nineteen years' incarceration. We affirm.
In 2012, Cowan was indicted for first-degree assault; possession of a handgun by a convicted felon, two counts; first-degree wanton endangerment, five counts; violation of a pretrial order of release, two counts; and first-degree persistent felony offender (PFO). Trial commenced on September 9, 2013; the jury was selected, opening statements were made, and two witnesses for the Commonwealth were called. The trial continued on September 10, 2013, at which time it was placed on the record that plea negotiations had been taking place between Cowan and the Commonwealth. Cowan's trial attorney stated that the Commonwealth had offered Cowan eighteen years' incarceration at 85% parole eligibility and Cowan had rejected the offer. Cowan's trial attorney voiced that Cowan's rejection of the offer was against her advice because the offer was lower than the minimum he could receive if convicted by the jury. The trial court conversed with Cowan to clarify that he understood the potential sentence he would face if convicted by the jury, and Cowan was resolute in his decision to reject the Commonwealth's offer. The trial continued.
After two more witnesses for the Commonwealth had been called, the court went off the record while Cowan was given an opportunity, per his request, to speak with his father. Shortly thereafter, the parties went back on the record and Cowan's trial attorney indicated that Cowan had asked her to speak with the Commonwealth about the eighteen-year offer that had been made that morning. Trial counsel indicated that the Commonwealth was now offering twenty years, with the first-degree PFO charge being dismissed. Trial counsel then informed the court that Cowan had requested to speak with the court about Cowan's attorney's representation. Cowan informed the court that he did not feel as though his trial attorney was doing a good job representing him at trial. After the trial court informed Cowan that it disagreed and would not stop the trial in order to appoint new trial counsel, Cowan inquired as to whether the court could retrieve the Commonwealth's original offer of eighteen years. The trial court responded that it did not get involved with the negotiation of offers, but didn't mind mediating between the parties. The trial court then offered to speak with the Commonwealth and informed Cowan "you have to be sure you want to do that." Cowan agreed and requested that his trial counsel be present for the mediation between the court and the Commonwealth. For reasons unknown, a plea agreement was not reached between Cowan and the Commonwealth at that time.
Cowan's trial continued. The Commonwealth presented two more witnesses and then recessed for lunch. Upon reconvening, Cowan's trial counsel indicated that Cowan was very strongly considering taking an offer from the Commonwealth, but wished to speak to his father one final time. After having a chance to speak with his father, Cowan moved to withdraw his plea of not guilty and enter a guilty plea to assault in the first degree; possession of handgun by a convicted felon, two counts; wanton endangerment in the first degree, four counts; and violating a pretrial order of release, two counts. In exchange for this plea, the Commonwealth recommended a sentence of nineteen years' incarceration. Cowan and the trial court engaged in a plea colloquy in which he agreed that he had read and understood the plea, was entering into the plea voluntarily and of his own free will, had not been threatened, understood he did not have to enter into the plea, had received adequate time to discuss his decision with his attorney and his family, was guilty of the charges for which he was being charged, had committed the acts that served as the basis for the charges, and was not on medication. The plea was accepted by the trial court and Cowan was found guilty of the charges to which he pleaded guilty. Per the agreement, the first-degree PFO charge and one of the wanton endangerment charges were dismissed. Final sentencing was scheduled for October 21, 2013.
On October 8, 2013, Cowan filed a motion to withdraw his guilty plea. Therein, Cowan alleged that his guilty plea was not made knowingly and voluntarily. On the morning of October 21, Cowan informed the trial court that he was not in his right state of mind at the time of the plea. Cowan opined that his trial counsel was insufficient and explained that he had taken Elavil and Trazadone on the day of the plea. He claimed that he realized he had been coerced after he returned to the jail and slept off the medication. Cowan requested that his plea be withdrawn and he be appointed new counsel. The trial court indicated that it would review the plea and make a decision. On October 25, 2013, an order was entered in which the trial court denied Cowan's motion to withdraw his guilty plea. Therein, the trial court referenced the events at trial and subsequent plea colloquy and found that the plea was entered into voluntary, knowingly, and intelligently.
Cowan next filed a motion for a new trial, in which he alleged he had been coerced into a guilty plea by his trial attorney. At the next court date, December 18, 2013, Cowan's motion was denied and the trial court made another finding that Cowan's plea was knowing, voluntary, and well-informed. Final sentencing was scheduled and on January 31, 2014, the final judgment of conviction and sentence, which reflected the agreement between Cowan and the Commonwealth, was entered. This appeal followed.
Cowan's first argument to this Court is that the trial court abused its discretion when it denied Cowan's motion to withdraw his guilty plea. In particular, he maintains that his plea was involuntary and therefore invalid for two reasons: he was under the influence of drugs when he entered into the plea; and he was coerced by his attorney into taking the plea deal rather than continuing with trial. We disagree.
The withdrawal of pleas is governed by Kentucky Rules of Criminal Procedure (RCr) 8.10, which states, in pertinent part, "[a]t 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." In order to succeed on a motion to withdraw a plea, "the movant must allege with particularity specific facts which, if true, would render the plea involuntary." Commonwealth v. Pridham, 394 S.W.3d 867, 874 (Ky. 2012). If a trial court determines that a plea is invalid, then it must allow a defendant to withdraw the invalid plea. Id. at 885. Otherwise, the decision to permit the withdrawal of a valid plea is left to the trial court's discretion. Id. There, we review a trial court's decision to grant or deny a motion to withdraw a guilty plea under the abuse of discretion standard. Prater v. Commonwealth, 421 S.W.3d 380, 387 (Ky. 2014) (citing Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky.App. 2004)). "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) (citing Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000)).
In support of its decision to deny Cowan's motion, the trial court herein found that Cowan had specifically denied, under oath, that any threats, duress, or coercive acts had been perpetrated on him in order to effectuate the guilty plea. The trial court further found that Cowan was well educated, understood the implications of his guilty plea, and had adequately discussed the plea with counsel. The trial court concluded "[Cowan's] plea was made with clear and concise responses and without any indicia of confusion, duress, intoxication[,] or exhaustion." "Findings of fact, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." CR 52.01. It is our holding that the trial court's findings are supported by substantial evidence from the record. In particular, our review of the record reveals sworn testimony from Cowan that he fully understood the implications and consequences of the plea agreement, that he was entering into the plea voluntarily and of his own free will, that he understood he was not required to enter into the plea, that he had been provided adequate time to discuss his decision with both his attorney and his family, and that he was not on any medications. "[A] defendant who expressly represents in open court that his guilty plea is voluntary may not ordinarily repudiate his statements to the sentencing judge." Edmonds v. Commonwealth, 189 S.W.3d 558, 568 (Ky. 2006) (quoting U.S. v. Todaro, 982 F.2d 1025, 1030 (6th Cir. 1993)). Because the record clearly refutes the allegations of involuntariness by Cowan, it is our holding that the trial court's denial of Cowan's motion to withdraw his plea was not an abuse of discretion.
Cowan maintains that the trial court abused its discretion by relying solely on the plea colloquy when it denied the motion to withdraw. We disagree. The trial court is clear that it considered the record as a whole when deciding on Cowan's motion to withdraw. In its order denying Cowan's motion to withdraw the trial court states:
[f]urther review of prior recorded events (particularly from the beginning of trial on September 9, 2013[,] up to the plea) shows Defendant had consistent, appropriate interaction with his attorney, ample time to confer with his family, familiarity with credit time towards his sentence, parole eligibility[,] and serve out.Accordingly, Cowan's argument that the trial court relied solely on the plea colloquy is directly refuted by the trial court's order. As relayed in the facts above, Cowan conferenced with his attorney and family multiple times during the trial and continued to consider a plea offer during the pendency of the trial. Indeed, it was Cowan who asked the trial court if it could secure a previously offered, and rejected, deal at one point during the trial. Thus, these findings are also supported by substantial evidence and we find no abuse of discretion.
Cowan's final argument on appeal is that this Court should remand for an evidentiary hearing with newly appointed counsel. Again, we disagree. "Motions which fail adequately to specify grounds for relief may be summarily denied, as may be motions asserting claims refuted or otherwise resolved by the record." Pridham, 394 S.W.3d at 874 (emphasis added). The record is replete with evidence indicating that Cowan was thoughtful and deliberate and that he voluntarily and knowingly entered into his plea. Cowan has not made any specific allegations of involuntariness which were not resolved by the record or would otherwise warrant an evidentiary hearing. See id. Accordingly, we hold that the trial court did not err when it chose not to hold one.
For the foregoing reasons, the January 31, 2014, judgment of conviction and sentence of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Emily Holt Rhorer
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Tom Van De Rostyne
Assistant Attorney General
Frankfort, Kentucky