Opinion
NO. 2017-CA-001872-MR
06-21-2019
ABOUBAKAR SOW APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Alexandria Lubans-Otto Florence, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James Havey Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 15-CR-00269-003 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES. TAYLOR, JUDGE: Aboubakar Sow brings this appeal from an October 18, 2017, Opinion and Order of the Fayette Circuit Court denying Sow's Kentucky Rules of Civil Procedure (CR) 60.02 motion to set aside his guilty plea. We affirm.
On March 23, 2015, Sow was indicted by a Fayette County Grand Jury upon the offenses of trafficking in financial information (Kentucky Revised Statutes (KRS) 434.874), false making of a credit card (KRS 434.630), and ten counts of second-degree criminal possession of forged instrument (KRS 516.060). The record indicates that Sow migrated from Sierra Leone and is a permanent resident of the United States. Eventually, Sow and the Commonwealth reached a plea agreement. Pursuant to its terms, Sow entered a guilty plea to four counts of second-degree criminal possession of forged instrument on November 7, 2016. The Commonwealth dismissed the remaining indicted offenses and agreed to recommend a total one-year sentence of imprisonment conditionally discharged for two years. On March 14, 2017, the circuit court sentenced Sow consistent with the terms of the plea agreement.
Subsequently, on July 14, 2017, Sow filed a CR 60.02 motion seeking to vacate his sentence of imprisonment. Sow alleged that his guilty plea was not competently and knowingly entered because he was unaware of the immigration consequences thereof. After being sentenced, Sow claimed that he was detained without bond by United States Immigration and Customs Enforcement (ICE) and placed in removal proceedings. By order entered October 18, 2017, the circuit court denied Sow's CR 60.02 motion. This appeal follows.
Sow contends that the circuit court erred by denying his CR 60.02 motion to vacate his sentence of imprisonment. Sow alleges that he did not understand "the ramifications of a guilty plea due to incorrect advice from his immigration attorney." Sow's Brief at 5. Sow maintains that after entering the guilty plea he "sought advice on his potential immigration consequences from an immigration attorney and was incorrectly advised that he was not subject to mandatory detention without bond or deportation without relief." Sow's Brief at 1. Due to the incorrect advice, Sow argues that he was unable to fully understand the consequences of his guilty plea; consequently, Sow believes his guilty plea was involuntary under Boykin v. Alabama, 395 U.S. 238 (1969). See Padilla v. Ky., 559 U.S. 356 (2010). Sow particularly seeks relief under CR 60.02(a) and (f).
CR 60.02 provides:
On motion a court may, upon such terms as are just, relieve a party or his legal representative from its final judgment, order, or proceeding upon the following grounds: (a) mistake, inadvertence, surprise or excusable neglect; (b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59.02; (c) perjury or falsified evidence; (d) fraud affecting the proceedings, other than perjury or falsified evidence; (e) the judgment is void, or has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (f) any other reason of an extraordinary nature justifying relief. The motion shall be made within a reasonable time, and on grounds (a), (b), and (c) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this rule does not affect the finality of a judgment or suspend its operation.
We review the circuit court's denial of a CR 60.02 motion for an abuse of discretion. See White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). An abuse of discretion occurs if the "decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Sexton v. Sexton, 125 S.W.3d 258, 272 (Ky. 2004) (quoting Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).
The Kentucky Supreme Court has held that CR 60.02 relief is only available to raise claims not within the purview of Kentucky Rules of Criminal Procedure (RCr) 11.42. Sanders v. Commonwealth, 339 S.W.3d 427, 437 (Ky. 2011); Gross v. Commonwealth, 648 S.W.2d 853, 855-57 (Ky. 1983). More specifically, the Supreme Court explained:
The structure provided in Kentucky for attacking the final judgment of a trial court in a criminal case is not haphazard and overlapping, but is organized and complete. That structure is set out in the rules related to direct appeals, in RCr 11.42, and thereafter in CR 60.02. CR 60.02 is not intended merely as an additional opportunity to raise Boykin [v. Alabama, 395 U.S. 238 (1969)] defenses. It is for relief that is not available by direct appeal and not available under RCr 11.42.Gross, 648 S.W.2d at 856.
In this case, Sow filed a CR 60.02 motion and alleges that his guilty plea was involuntary thereby violating due process per Boykin v. Alabama, 395 U.S. 238 (1969). The claim that Sow's guilty plea was involuntary thereby violating constitutional due process requirements must be raised in either a motion to withdraw guilty plea (RCr 8.10) or in an RCr 11.42 motion. See Gross, 648 S.W.2d at 856 (holding that "CR 60.02 is not intended merely as an additional opportunity to raise Boykin [v. Alabama, 395 U.S. 238] defenses"); Lynch v. Commonwealth, 610 S.W.2d 902, 904-05 (Ky. App. 1980); Bronk v. Commonwealth, 58 S.W.3d 482, 486-88 (Ky. 2001). The record reveals that Sow has filed neither motion. Thus, we cannot conclude that the circuit court abused its discretion by denying Sow's CR 60.02 motion.
For the foregoing reasons, the Opinion and Order of the Fayette Circuit Court is affirmed.
ACREE, JUDGE, CONCURS. CLAYTON, CHIEF JUDGE, CONCURS AND FILES SEPARATE OPINION. CLAYTON, CHIEF JUDGE, CONCURRING. I concur with the result reached by the majority but do not agree that CR 60.02 should be read so narrowly as always to preclude relief on the grounds of the withdrawal of an involuntary plea. The majority holds that Sow had two options. One option was a motion to withdraw his plea pursuant to RCr 8.10. However, this motion must be filed "[a]t any time before judgment." Sow had no reason to file such a motion before judgment. He had sought legal advice before judgment was entered regarding the immigration consequences of his plea. He misinterpreted the legal advice given to him and believed that he would not be detained without bond by the immigration authorities. Therefore, at the time of sentencing, he had no basis for withdrawing his plea.
The majority then states that his second option was filing an RCr 11.42 motion alleging ineffective assistance of counsel. But Sow could not avail himself of relief pursuant to RCr 11.42 either. The advice that Sow relied upon was not provided by trial counsel. Further, Sow was not in the custody of the Commonwealth when he filed his motion, an essential precondition of invoking RCr 11.42 relief. The Rule provides: "A prisoner in custody under sentence or a defendant on probation, parole or conditional discharge who claims a right to be released on the ground that the sentence is subject to collateral attack may at any time proceed directly by motion in the court that imposed the sentence to vacate, set aside or correct it." RCr 11.42(1). The Kentucky Supreme Court has explained the mandatory nature of this requirement:
The language of the rule is plain and unambiguous that relief is available only to "[a] prisoner in custody ... or on probation[.]" Our predecessor Court expressly rejected an identical argument in Sipple v. Commonwealth: "RCr 11.42 does not provide, expressly or by implication, for the review of any judgment other than the one or ones pursuant to which the movant is being held in custody." 384 S.W.2d 332 (Ky. 1964). Likewise, in Wilson v. Commonwealth, our predecessor Court again explained: "RCr 11.42 is procedural remedy designed to give a convicted prisoner a direct right to attack the conviction under which he is being held. It is supplemental to the right of habeas corpus, and we must
accept the plain meaning of the language of the rule." 403 S.W.2d 710, 712 (Ky. 1966) (emphasis added).Parrish v. Commonwealth, 283 S.W.3d 675, 677 (Ky. 2009).
The cases cited by the majority, such as Gross v. Commonwealth, do not preclude relief under the facts of Sow's case. The filing of a CR 60.02 motion was not an additional opportunity for Sow to raise Boykin v. Alabama defenses as disallowed in Gross. The CR 60.02 motion was Sow's only opportunity to raise the Boykin defenses.
Indeed, it may be difficult to prevail on a CR 60.02 motion based upon the grounds of a withdrawal of a guilty plea, but relief should not be precluded. Nevertheless, I would affirm the trial court because it did not abuse its discretion in denying the motion. BRIEFS FOR APPELLANT: Alexandria Lubans-Otto
Florence, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky James Havey
Assistant Attorney General
Frankfort, Kentucky