Opinion
NO. 2017-CA-000658-MR
05-18-2018
BRIAN READENOUR APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Robert C. Yang Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jesse L. Robbins Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GRAVES CIRCUIT COURT
HONORABLE TIMOTHY C. STARK, JUDGE
ACTION NO. 16-CR-00064 OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, JONES AND THOMPSON, JUDGES. COMBS, JUDGE: Appellant, Brian Wayne Readenour, appeals from an Order of the Graves Circuit Court denying his motion to withdraw his guilty plea. Finding no error, we affirm.
A grand jury indicted Readenour on four counts of selling controlled substance to a minor, one count of third-degree rape, four counts of third-degree sodomy, four counts of first-degree sexual abuse, four counts of third-degree unlawful transaction with a minor, and one count of being a first-degree persistent felony offender (PFO) -- eighteen counts in all.
On November 14, 2016, Readenour filed a Motion to Enter Guilty Plea/Form AOC-491.2, which reflects that he signed it in open court and in the presence of his attorney, affirming that his "judgment is not now impaired by drugs, alcohol or medication." He also affirmed that his guilty plea was "freely, knowingly, intelligently and voluntarily made..." as required by Boykin v. Alabama, 395 U.S. 238, 241-42, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969). At the November 14, 2016, hearing, Readenour pled guilty to seven counts pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The other counts, including the PFO charge, were dismissed. The court engaged in a Boykin colloquy with Readenour and accepted his pleas, having determined that they were "made willingly, freely and voluntarily and that Defendant had made a knowing and intelligent waiver of his rights."
When Readenour appeared for sentencing on February 14, 2017, his counsel made a motion to withdraw his plea. The court conducted a hearing on his motion. Readenour testified that he was not thinking clearly at that time because his wife of sixteen years had died on October 9, and he was overcome with grief. If that had not been the case, he would have asked for a trial because he was not guilty. Readenour also testified that although he had used some drugs - marijuana and meth - which could have affected his thinking at the previous time, his mind was clear today (February 14, 2017). The court announced that it was going to deny the motion. Stating that "we went through a Boykin colloquy," the court proceeded with sentencing.
In his Brief, Readenour states that he appeared with "new" defense counsel. The record reflects that counsel from the Paducah public defender's office appeared on Readenour's behalf for the limited purpose of making the motion to withdraw the plea at the request of the Murray public defender's office, which represented Readenour.
The Court's Order Denying Motion To Withdraw Guilty Plea, entered February 15, 2017, provides as follows:
On February 14, 2017 the Defendant appeared in open court with counsel, Hon. Robert Irvin, for sentencing. Defendant, by counsel, made a motion to withdraw his guilty plea. The Court allowed the Defendant to testify and counsel to provide argument in support of said motion.
After hearing testimony and argument of counsel, and being sufficiently advised from the record, the Court finds that on November 14, 2016 the Defendant appeared in open court, with counsel, to enter a plea of guilty, pursuant to the Commonwealth's recommendations and pursuant to North Carolina v. Alford [sic]. The Court asked the Defendant if his thinking was clear, and the Defendant responded "yes Sir." The Court asked the Defendant if he was under the influence of any drugs or alcohol, the Defendant responded, "no Sir." The Court determined the Defendant was mentally competent to enter his plea. After determining the Defendant had entered his plea willingly, freely and voluntarily, and had made a knowing and intelligent waiver of his rights, the Court accepted his plea. Therefore,
IT IS HEREBY ORDERED that Defendant's motion to withdraw his guilty plea is DENIED.(Emphasis original).
On February 15, 2017, the trial court entered Judgment and Sentence sentencing Readenour to the terms of his plea agreement with the Commonwealth for a total of five years to be served consecutively to the other felony convictions.
On March 14, 2017, Readenour filed a Notice of Appeal to this Court. On appeal, he contends that the trial court abused its discretion in denying his motion to withdraw his plea. RCr 8.10 provides in relevant part that "[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." Our Supreme Court elaborated on this issue in Williams v. Commonwealth, 229 S.W.3d 49, 50-51 (Ky. 2007), as follows:
Kentucky Rules of Criminal Procedure. --------
To be valid, a plea must be knowing, intelligent and voluntary, Haight v. Commonwealth, 760 S.W.2d 84, 88 (Ky. 1988), and a trial court shall not accept a plea without first determining that it is made voluntarily with understanding of the nature of the charge. RCr 8.08. RCr 8.10 provides that a guilty plea may be withdrawn with permission of the court before judgment. A motion to withdraw a plea of guilty under RCr 8.10 is generally addressed to the sound discretion of the court; however, where it is alleged that the plea was entered involuntarily the defendant is entitled to a hearing on the motion. Edmonds v. Commonwealth, 189 S.W.3d 558, 566 (Ky. 2006). If the plea was involuntary, the motion to
withdraw it must be granted; if it was voluntary, the trial court may, within its discretion, either grant or deny the motion. Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky.App. 2004). A trial court abuses its discretion when it renders a decision which is arbitrary, unreasonable, unfair or unsupported by legal principles. Edmonds, 189 S.W.3d at 570. The inquiry into the circumstances of the plea as it concerns voluntariness is inherently fact-sensitive. Id. at 566. Accordingly, the trial court's determination as to whether the plea was voluntarily entered is reviewed under the clearly erroneous standard. Id.
In seeking to persuade us that he should have been allowed to withdraw his plea, Readenour asserts that "numerous sister states ... agree that motions to withdraw guilty pleas made before sentencing should be liberally construed in favor of the accused and should be granted freely." He also notes that federal courts permit withdrawal of a guilty plea for any "fair and just reason" under Fed. R. Crim P. 11(d)(2)(B).
This Court recently declined to follow the federal rule in Blanton v. Commonwealth, 516 S.W.3d 352, 357 (Ky. App. 2017). In Blanton, the defendant appealed the denial of his motion to withdraw his guilty plea, which he claimed had been made involuntarily due to stress caused by his mother's illness. The Commonwealth observed that "[t]he precise terms of [Federal] Rule 11 are not constitutionally applicable to the state courts." Roddy v. Black, 516 F.2d 1380, 1383 (6th Cir. 1975). The Commonwealth urged this Court to follow the precedent set forth by the Supreme Court of Kentucky rather than the federal rule, and we did so. Blanton, supra at 357.
We find no abuse of discretion in the case before us. Readenour was represented by counsel. The trial court conducted a hearing and engaged him in a proper Boykin colloquy. The court made findings that Readenour was mentally competent to enter his plea; that his plea was made willingly, freely and voluntarily; and that he had made a knowing and intelligent waiver of his rights. Those findings are supported by substantial evidence. "[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)).
We affirm the Graves Circuit Court's Order Denying Motion To Withdraw Guilty Plea entered on February 15, 2017.
JONES, JUDGE, CONCURS.
THOMPSON, JUDGE, DISSENTS BY SEPARATE OPINION
THOMPSON, JUDGE, DISSENTING: Respectfully, I dissent. I believe the trial court's decision to deny Brian Readenour's motion to withdraw his guilty plea made prior to his sentencing was an abuse of discretion.
Kentucky Rules of Criminal Procedure (RCr) 8.10 states: "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." Although the word "may" suggests that the decision to permit a plea to be withdrawn is discretionary, if the plea was involuntary the trial court is without discretion to deny a motion to withdraw a guilty plea. In that instance, the motion "must be granted." Rodriguez v. Commonwealth, 87 S.W.3d 8, 10 (Ky. 2002). Therefore, if the word "may" is to mean anything, it must, and does, apply to circumstances other than when a plea is involuntary.
Under RCr 8.10, even a voluntary plea may be withdrawn but it is discretionary with the trial court. Rigdon Commonwealth, 144 S.W.3d 283 (Ky. App. 2004). As explained in Rigdon:
Once a criminal defendant has pleaded guilty, he may move the trial court to withdraw the guilty plea, pursuant to RCr 8.10. If the plea was involuntary, the motion to withdraw it must be granted. However, if it was voluntary, the trial court may, within its discretion, either grant or deny the motion. Whether to deny a motion to withdraw a guilty plea based on a claim of ineffective assistance of counsel first requires a factual inquiry into the circumstances surrounding the plea, primarily to ascertain whether it was voluntarily entered. 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.Id. at 288 (internal footnotes and quotations omitted).
I cannot disagree with the majority that the trial court's finding that the plea was voluntary is supported by substantial evidence. A plea is involuntary if the facts alleged, if true, "would render the plea involuntary under the Fourteenth Amendment's Due Process Clause, would render the plea so tainted by counsel's ineffective assistance as to violate the Sixth Amendment, or would otherwise clearly render the plea invalid." Commonwealth. v. Pridham, 394 S.W.3d 867, 874 (Ky. 2012). Here, there was a valid Boykin colloquy. I also note that Readenour did not claim his counsel was ineffective. Therefore, I cannot differ with the majority's analysis on the narrow issue of whether Readenour's plea was voluntary as defined by our Supreme Court.
My disagreement with the trial court and the majority is that both have ignored a voluntary plea may be withdrawn. Unfortunately, this second basis for permitting a guilty plea to be withdrawn has not been clearly set forth causing inconsistent results in the trial courts.
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" including "the effect withdrawal of a guilty plea will have on the court, the prosecution, and victims[.]" Id. 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. Yet, the argument has been made that without guidance to the trial court, meaningful review is illusive.
In Blanton v. Commonwealth, 516 S.W.3d 352 (Ky. App. 2017), the appellant urged this Court to apply the test for withdrawing a guilty plea under Federal Rules of Criminal Procedure 11(d)(2)(B), which permits withdrawal of a guilty plea prior to sentencing if a defendant "can show a fair and just reason for requesting the withdrawal." We noted the rule that the "precise" terms of Rule 11 are not constitutionally applicable to state courts and declined to apply the fair and just standard. Id. at 357. However, the fair and just standard has been approved by our Supreme Court in determining whether a trial court abused its discretion in denying a motion to withdraw a guilty plea prior to sentencing.
The Blanton decision followed our Supreme Court's decision in Britton v. Commonwealth, 2013-CA-001732-MR, 2015 WL 3637486 (Ky. 2015) (unpublished), where our Supreme Court indicated that it would not adopt the federal rule into our criminal rules. There are two important parts of that decision relevant to the current issue.
First, the Court engaged in an analysis as to whether the trial court abused its discretion in denying a motion to withdraw a voluntary plea in accordance with Rigdon. Id. at 3-4. Therefore, when properly presented as an issue to the trial court, our Supreme Court reaffirmed that the trial court is required to consider circumstances other than the constitutional voluntariness of the plea as a basis to permit the plea to be withdrawn.
Second, while it did not adopt the federal rule, the Court nevertheless held that "our abuse of discretion standard takes into account the fairness and reasonableness of the trial court's decision making." Id. at 3. So, while the federal rule has not been expressly adopted, even a voluntary plea may be withdrawn if, under the totality of the circumstances, it would not be fair and just to deny the defendant's motion. Indeed, regardless of the precise wording of RCr 8.10, it is the duty of any court to ensure that a guilty plea is a fair and just result.
The trial court focused on only whether the plea was voluntary and knowingly entered relying solely on the Boykin colloquy. It ignored that it had discretion to permit Readenour's guilty plea to be withdrawn based on the totality of the circumstances. On this basis alone, it abused its discretion.
The facts in this case compel me to conclude that under the totality of the circumstances, the only fair and just result is to grant Readenour's motion. Readenour's motion to withdraw his guilty plea was promptly made so there could be no prejudice to the Commonwealth. Although the promptness of the motion alone would not be grounds to grant the motion, there are other compelling facts.
Readenour's plea was an Alford plea indicating his reluctance to admit the facts alleged as true. The Commonwealth's offer to dismiss many of the charges, including one count of first-degree persistent felony offender, and its recommendation of a total of five years on the remaining charges, indicates its case was fraught with evidentiary weaknesses. There was also testimony from Readenour at the hearing on the motion to withdraw that one month before entering his guilty plea, his wife of sixteen years died from cancer and he was overcome with grief. Under emotional duress, he entered his plea to quickly resolve the case and not because he was guilty.
Under totality of the circumstances, I cannot say that Readenour's guilty plea is fair and just. I would reverse and permit him his constitutional right to a jury trial. BRIEF FOR APPELLANT: Robert C. Yang
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Jesse L. Robbins
Assistant Attorney General
Frankfort, Kentucky