Opinion
NO. 2012-CA-000042-MR
06-14-2013
NATHAN JASPER NORMAN, JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Julia K. Pearson Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Christian K. R. Miller Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CASEY CIRCUIT COURT
HONORABLE DOUGHLAS M. GEORGE, JUDGE
ACTION NO. 11-CR-00082
OPINION
AFFIRMING
BEFORE: KELLER, STUMBO AND THOMPSON, JUDGES. STUMBO, JUDGE: Nathan Jasper Norman, Jr. appeals from an Order of the Casey Circuit Court denying his motion to withdraw his guilty plea. He contends that the court erred by failing to hold a substantive hearing on the motion. We find no error, and affirm the Order and Judgment on appeal.
Judge Michelle M. Keller concurred in this opinion prior to her appointment to the Kentucky Supreme Court. Release of this opinion was delayed by administrative handling.
On June 17, 2011, the Casey County grand jury indicted Norman on various drug possession charges. On October 17, 2011, he filed a motion to enter a guilty plea pursuant to the terms of the Commonwealth's plea offer. Norman agreed to plead guilty to all charges in exchange for combined sentence of 10 years in prison.
Norman entered the plea, which was accepted by the court, and he was released on bond pending sentencing. Norman later failed to appear for sentencing, which resulted in his arrest. He then moved to withdraw his guilty plea based on his claim that he was light-headed during the plea colloquy and did not remember much of what happened. The matter was continued to allow the trial court to view the videotape of Norman's plea.
The trial court passed the case for a week and reviewed the entirety of the guilty plea video. At a subsequent hearing and sentencing, the court noted that at one point during the guilty plea phase, Norman "appeared to be a little light on his feet" and had to have a seat. The court went on to determine, though, that there "was nothing out of the ordinary to make the Court believe that it was not a knowing and intelligent plea and that he did not comprehend what was going on during the proceedings." The court then denied Norman's motion to withdraw his plea, and sentenced him in accordance with the plea agreement. This appeal followed.
Norman now argues that the trial court abused its discretion in denying his motion to withdraw his guilty plea. The focus of his claim of error is that the case law interpreting RCr 8.10 (withdrawal of plea) provides that while the adjudication of a motion to withdraw a guilty plea lies within the sound discretion of the trial court, a defendant is entitled to a hearing when it is alleged that the plea was not voluntary. Edmonds v. Commonwealth, 189 S.W.3d 558, 566 (Ky. 2006). Norman contends that such a hearing must be substantive and look beyond the plea colloquy to determine whether the plea was voluntarily entered under the totality of the circumstances surrounding the plea. Rigdon v. Commonwealth, 144 S.W.3d 283, 289 (Ky. App. 2004). He argues that while he did receive a hearing on his motion to withdraw the guilty plea, the hearing was brief and not substantive in conformity with Rigdon. Additionally, Norman notes that the Judge who sentenced him was not the Judge who heard the plea colloquy and accepted the guilty plea, making it even more important that the hearing on his motion was full and substantive. Ultimately, Norman maintains that the limited discussion of his motion is not properly characterized as a full and substantive hearing as required by Rigdon and Edmonds, and thus constituted an abuse of discretion entitling him to a reversal and remand of the Order and Judgment on appeal.
RCr 8.10 provides that "[a]t any time before judgment the court may permit the plea of guilty . . . to be withdrawn and a plea of not guilty substituted." As noted above, although an RCr 8.10 motion generally falls within the sound discretion of the trial court, a defendant is entitled to a hearing on the motion if it is alleged that the plea was entered involuntarily. Edmonds, 189 S.W.3d at 566. Additionally, Edmonds holds that the question of voluntariness is inherently fact-sensitive. Id.
In the matter at bar, it is uncontroverted that the Casey Circuit Court did hold a hearing on Norman's motion to withdraw his plea. At issue is whether the hearing was sufficient to satisfy Edmonds, et al. We conclude that it was. The trial court stated on the record that it reviewed in its entirety the video of Norman's guilty plea and the plea colloquy. Though the court's discussion was brief, it noted that Norman was at one point "a little light on his feet" and had to be seated. It went on to determine, however, that this brief episode did not persuade the court that Norman's plea was involuntarily made. Rather, the court noted that Norman "was very coherent throughout" and "responded appropriately . . . [to] each request by Judge McGinnis." The court went on to find that there "was nothing out of the ordinary to make the Court believe that it was not a knowing and intelligent plea and that he did not comprehend what was going on during the proceedings."
Norman, through counsel, maintains that the court improperly failed to examine if he had a heart condition, whether he was suffering from an abnormally fast or slow heart beat, if he had an abnormality with one or more heart valves, whether medication was available to assist him so he would not feel faint, and if these factors affected his ability to enter a knowing, voluntary and intelligent plea. We cannot go so far as to conclude that the court's failure to conduct this level of inquiry rendered the hearing insufficient. Rather, the circuit court properly examined Norman's plea entry and guilty plea colloquy and found no basis for concluding that the plea was not knowingly, voluntarily and intelligently made. This conclusion is supported by the record and comports with Edmonds, and we find no error.
For the foregoing reasons, we affirm the Order and Judgment of the Casey Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Julia K. Pearson
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Christian K. R. Miller
Assistant Attorney General
Frankfort, Kentucky