Opinion
NO. 2015-CA-001316-MR
04-15-2016
MIGUEL SOTO APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Miguel Soto, pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky J. Hays Lawson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE KAREN A. CONRAD, JUDGE
ACTION NO. 99-CR-00041 OPINION
AFFIRMING
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BEFORE: DIXON, MAZE AND STUMBO, JUDGES. STUMBO, JUDGE: Miguel Soto appeals from the denial of his RCr 11.42 motion in which he alleged ineffective assistance of counsel. This motion was denied without a hearing. Soto argues that the trial court should have granted him a new sentencing hearing on the two murder charges due to ineffective assistance of counsel, or at the least, held a hearing on the RCr 11.42 motion. We find no error and affirm.
Kentucky Rule of Criminal Procedure. --------
In 2000, Soto was convicted by a jury of a number of crimes, including two counts of murder. He was sentenced to death on each of the murder convictions. His conviction and sentence of death was affirmed by the Kentucky Supreme Court in 2004. Soto v. Commonwealth, 139 S.W.3d 827 (Ky. 2004). In 2006, Soto filed an RCr 11.42 motion. In January of 2011, the trial court granted the motion in part. The trial court vacated Soto's death sentences and found that he was entitled to a new sentencing hearing as to the two murder convictions. On November 5, 2012, Soto and the Commonwealth informed the trial court that they had entered into a sentencing agreement. The agreement stated that Soto would serve life without the possibility of parole for the two counts of murder. In addition, Soto agreed to waive all further state litigation, but reserved his right to proceed in federal court. Soto was then sentenced in accordance with the sentencing agreement.
In June of 2013, Soto filed an RCr 11.42 motion in which he raised multiple allegations of ineffective assistance of counsel in regard to the sentencing agreement. This motion was denied without a hearing one month later. In August of 2013, Soto filed a motion for leave to proceed in forma pauperis and filed a notice of appeal. The trial court denied Soto's motion to proceed in forma pauperis and ordered that he pay the filing fee before his appeal could be perfected. Soto did not pay the filing fee and on October 16, 2013, the trial court entered an order dismissing the appeal.
On October 24, 2014, Soto filed the instant RCr 11.42 motion. This motion alleged that his trial counsel was ineffective for allowing him to waive any further state claims in his sentencing agreement. His argument was based around the recent Kentucky Supreme Court opinion of U.S., ex rel. U.S. Attorneys ex rel. E., W. Districts of Kentucky v. Kentucky Bar Ass'n, 439 S.W.3d 136 (Ky. 2014). This argument had not been previously raised in the 2013 RCr 11.42 motion. On May 14, 2015, the trial court denied this motion without a hearing. This appeal followed.
While we could simply affirm on the grounds that a successive RCr 11.42 is prohibited, in the case at bar, the importance of the issue presented merits discussion.
In U.S. v. Kentucky Bar Ass'n, the United States Attorneys for the Eastern and Western Districts of Kentucky moved for the Kentucky Supreme Court to review an ethics opinion released by the Kentucky Bar Association (KBA). KBA Ethics Opinion E-435 found that "use of ineffective-assistance-of-counsel (IAC) waivers in plea agreements violates our Rules of Professional Conduct." Id. at 140. The Kentucky Supreme Court agreed with the KBA and found that
use of IAC waivers in plea bargain agreements (1) creates a nonwaivable conflict of interest between the defendant and his attorney, (2) operates effectively to limit the attorney's liability for malpractice, and (3)
induces, by the prosecutor's insertion of the waiver into plea agreements, an ethical breach by defense counsel.Id. Soto argues that by allowing him to enter into a sentencing agreement which waived future state claims, his trial counsel was ineffective. He claims that had he known it is unethical for an attorney to counsel his client to waive ineffective assistance of counsel claims, he would not have entered into the sentencing agreement and would have insisted a jury fix his sentence for the two murders. We disagree.
Soto was sentenced pursuant to a sentencing agreement; therefore, we will utilize the standard of review for ineffective assistance of counsel as it relates to plea agreements.
A showing that counsel's assistance was ineffective in enabling a defendant to intelligently weigh his legal alternatives in deciding to plead guilty has two components: (1) that counsel made errors so serious that counsel's performance fell outside the wide range of professionally competent assistance; and (2) that the deficient performance so seriously affected the outcome of the plea process that, but for the errors of counsel, there is a reasonable probability that the defendant would not have pleaded guilty, but would have insisted on going to trial.
Evaluating the totality of the circumstances surrounding the guilty plea is an inherently factual inquiry which requires consideration of "the accused's demeanor, background and experience, and whether the record reveals that the plea was voluntarily made." While "[s]olemn declarations in open court carry a strong presumption of verity," "the validity of a guilty plea is not determined by reference to some magic incantation recited at the time it is taken [.]" The trial court's inquiry into allegations of ineffective assistance of counsel
requires the court to determine whether counsel's performance was below professional standards and "caused the defendant to lose what he otherwise would probably have won" and "whether counsel was so thoroughly ineffective that defeat was snatched from the hands of probable victory." Because "[a] multitude of events occur in the course of a criminal proceeding which might influence a defendant to plead guilty or stand trial," the trial court must evaluate whether errors by trial counsel significantly influenced the defendant's decision to plead guilty in a manner which gives the trial court reason to doubt the voluntariness and validity of the plea.Bronk v. Commonwealth, 58 S.W.3d 482, 486-487 (Ky. 2001) (citations omitted).
We do not believe trial counsel made any error in allowing Soto to enter into this agreement and do not believe Soto would have insisted on having a jury sentence him. First, there is no evidence that Soto waived his ineffective assistance of counsel claims. The sentencing agreement did state that he was waiving further state claims; however, this Court believes that only applied to direct appeals of his sentence. In fact, after entering into the sentencing agreement, Soto filed two motions alleging ineffective assistance of counsel and both were considered by the trial court.
In addition, we do not believe there is a reasonable probability Soto would have insisted on a jury sentencing. Soto had already been sentenced to death before. The agreement prevented new death sentences. Also, the trial court discussed the sentencing agreement with Soto and his counsel for over thirty minutes and specifically mentioned the waiver of state claims multiple times. Soto was aware of the terms, benefits, and consequences of the agreement.
For the foregoing reasons, we affirm the trial court's judgment.
ALL CONCUR. BRIEF FOR APPELLANT: Miguel Soto, pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky J. Hays Lawson
Assistant Attorney General
Frankfort, Kentucky