Opinion
NO. 2015-CA-001661-MR
10-06-2017
BRIAN JERMAINE WASHINGTON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Brian Jermaine Washington, pro se Beaver, West Virginia BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Emily Bedelle Lucas Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE ERNESTO M. SCORSONE, JUDGE
ACTION NO. 12-CR-00082 OPINION
AFFIRMING
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BEFORE: DIXON, JOHNSON, AND MAZE, JUDGES. DIXON, JUDGE: Brian Jermaine Washington appeals pro se from a Fayette Circuit Court order denying his motion to vacate judgment pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42.
Washington was indicted on the following charges: convicted felon in possession of a handgun, trafficking in a controlled substance in the first degree (cocaine), trafficking in marijuana less than eight ounces, and assault in the fourth degree. His attorney filed a motion to suppress which the circuit court granted in part, ruling that the evidence of Washington's possession of a handgun was inadmissible. The court declined, however, to suppress the drug evidence.
The Commonwealth thereafter made a plea offer to Washington consisting of two alternative recommendations: (1) a one-year sentence for a guilty plea to trafficking in a controlled substance in the first degree, or (2) a two-year sentence on an amended charge of possession of a controlled substance in the first degree. Washington appeared in court for the purpose of entering a conditional guilty plea to the amended charge of possession. According to Washington, his appointed counsel encouraged him to choose this option in spite of the longer sentence because a trafficking conviction could cause him future problems.
The trial court, the Commonwealth attorney and counsel for Washington discussed the effect a possession conviction would have on any persistent felony offender (PFO) charge that Washington might incur in the future. They agreed that possession was not a PFO-triggering offense but could be used as an enhancer in the future. In light of this information, the court offered Washington and his counsel more time to consider the plea offer.
Fourteen days later, Washington appeared in court to enter the guilty plea. He was represented by one of his appointed counsel's colleagues. The Commonwealth again offered Washington a choice of two alternative guilty pleas: the possession charge with a recommended sentence of two years, or the trafficking charge with a recommended sentence of one year. Washington's substitute counsel appeared to be caught off guard by the two-year sentence for the possession charge. Washington was familiar with the offer, however, and told the court that he had informed counsel of the terms of the offer. He then stated that he wanted to plead guilty to the trafficking charge. The trial court instructed Washington to discuss the offer with his counsel outside the courtroom. When they returned, Washington entered an unconditional plea of guilty to the charge of trafficking in a controlled substance.
Over one month later, Washington verbally entered a motion to withdraw the plea. The trial court provided a continuance to allow counsel to file a written motion. In the motion, counsel stated that Washington wished to withdraw his plea of guilty to trafficking, and instead plead guilty to possession. As grounds for the withdrawal, counsel stated that Washington had informed him that he did not understand how serious the trafficking conviction was when compared to the possession conviction.
After the motion was filed, the trial court held a hearing at which it ascertained that even if the plea were withdrawn, the Commonwealth was not prepared to reinstate the possession charge offer. The trial court observed that it had engaged in a lengthy and thorough questioning of Washington at the time the plea was entered in order to ensure that he was acting knowingly and voluntarily. The trial court denied the motion to withdraw the plea.
Washington then filed a motion pursuant to RCr 11.42 alleging ineffective assistance of counsel and requesting an evidentiary hearing. The trial court denied the motion without a hearing and this appeal followed.
In order to prove ineffective assistance of counsel, a defendant must show: (1) that counsel's representation was deficient in that it fell below an objective standard of reasonableness, measured against prevailing professional norms; and (2) that he was prejudiced by counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984).
When the defendant argues that his guilty plea was rendered involuntary due to ineffective assistance of counsel, the trial court is required
to "consider the totality of the circumstances surrounding the guilty plea and juxtapose the presumption of voluntariness inherent in a proper plea colloquy with a Strickland v. Washington inquiry into the performance of counsel." To support a defendant's assertion that he was unable to intelligently weigh his legal alternatives in deciding to plead guilty because of ineffective assistance of counsel, he must demonstrate the following:
Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky. App. 2004) (internal citations omitted).(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.
Washington contends that his counsel was unfamiliar with the PFO statute and provided erroneous advice that ultimately frustrated a favorable plea deal. Specifically, he claims that his attorney initially advised him that if he entered a plea of guilty to the possession charge, the conviction could not be used to impose PFO status. He claims that this advice was part of the reason he was prepared to take the possession plea at the first hearing. He argues that his attorney failed in his duty to investigate the implications of the statute.
But the impact of a possession conviction on Washington's future status as a PFO was raised by the trial court and fully discussed at the hearing; the trial court informed Washington that a possession charge could be used as a PFO enhancer and provided Washington with additional time to consider his plea.
"[U]nder KRS 532.080(8), the Commonwealth may base a PFO charge on a prior felony possession conviction under KRS 218A.1415 when the indictment includes a felony charge other than a felony possession charge." Boone v. Commonwealth, 412 S.W.3d 883, 885 (Ky. App. 2013).
If the information given by the court at the plea hearing corrects or clarifies the earlier erroneous information given by the defendant's attorney and the defendant admits to understanding the court's advice, the criminal justice system must be able to rely on the subsequent dialogue between the court and defendant.Commonwealth v. Rank, 494 S.W.3d 476, 487 (Ky. 2016) (internal citation omitted).
Washington acknowledges that the allegedly erroneous advice was corrected at the hearing, but insists that it was the reason he did not get the plea he wanted in the first place. He contends that the continuance and succeeding events caused him to enter a less advantageous plea.
He fails to explain, however, why he did not enter a guilty plea to the possession charge at the subsequent hearing, or how or why he was prevented from doing so. The record shows that although Washington's substitute counsel was initially caught off guard by the offered penalty of two years for possession, Washington himself informed the court that he had told counsel the terms of the offer. He then plainly stated he wanted to plead guilty to the trafficking offense, presumably to gain the benefit of a shorter sentence. He also never mentioned a conditional guilty plea, although he did stress at the prior hearing that he wished to appeal the partial denial of his suppression motion. Washington has failed to show how the outcome of his case would have been different without the allegedly erroneous advice of his attorney.
Washington further argues that his counsel was essentially absent and left him to argue the motion to withdraw his guilty plea by himself. His attorney's primary argument at the hearing on the withdrawal of the plea was that he was not present on the day the plea was entered, and that Washington had felt confused by substitute counsel. The trial court stated that Washington had simply decided he wanted to accept the other deal for the possession charge, which the Commonwealth stated in any event was no longer on the table, and that this was not sufficient justification to allow him to withdraw his earlier plea. Washington stated that he wanted to withdraw the plea and go to trial. The trial court responded that Washington had given up the right to a trial when he decided to plead guilty.
Washington also stated that when the trial court gave him additional time to consider his initial decision to accept the offer of the possession charge, he thought that the trial court had implied that he was doing something wrong. The trial court reiterated that it was not going to allow Washington to withdraw the plea. Under the circumstances, there was little else that his counsel could argue because there was no substantive reason to present to the trial court to justify withdrawal of the plea.
Washington also contends that he was entitled to an evidentiary hearing on his motion. An evidentiary hearing is only required "if there is a material issue of fact that cannot be conclusively resolved, i.e., conclusively proved or disproved, by an examination of the record." Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001) (internal citations omitted). The record shows that Washington was fully informed of the implications of his plea, and that he acknowledged this in open court. Thus, an evidentiary hearing was not required because there are no material issues relating to the plea that cannot be conclusively resolved by the record.
The order denying the RCr 11.42 motion is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Brian Jermaine Washington, pro se
Beaver, West Virginia BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Emily Bedelle Lucas
Assistant Attorney General
Frankfort, Kentucky