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Marks v. Commonwealth

Court of Appeals of Kentucky

July 27, 2018



          BRIEFS FOR APPELLANT: Kathleen K. Schmidt Assistant Public Advocate Dept. of Public Advocacy Frankfort, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky



          THOMPSON, JUDGE.

         Devante A. Marks appeals from an order of the Ballard Circuit Court denying his motion to withdraw his guilty plea pursuant to Kentucky Rules of Criminal Procedure (RCr) 8.10. He argues that the trial court erred in not permitting him to withdraw his guilty plea, not appointing substitute counsel and not conducting an evidentiary hearing. He also appeals from that portion of the trial court's judgment and sentence imposing court costs and jail fees. We agree with Marks that reversal and remand is required because after Marks expressed his desire to withdraw his guilty plea, substitute counsel should have been appointed.

         Marks was indicted for first-degree robbery and first-degree wanton endangerment arising from the robbery of a convenience store with the use of a gun. At arraignment, Marks's co-defendant was appointed a Department of Public Advocacy (DPA) attorney. Because of the conflict between representing Marks and his co-defendant, DPA contracted with a private attorney to provide Marks representation.

         On March 4, 2016, Marks entered a guilty plea to first-degree robbery in accordance with a plea agreement. In return for his guilty plea, the Commonwealth recommended a sentence of eleven-years' imprisonment and agreed to dismiss the wanton endangerment charge. During the plea hearing, the trial court conducted a colloquy pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Marks affirmed under oath that he had reviewed the plea agreement with his attorney before signing it and understood it. He further affirmed he was properly informed of the range of penalties and the rights he was waiving because of his guilty plea. In response to the trial court's questions, Marks affirmed that his plea was freely and voluntarily given and was not coerced. Marks further affirmed he discussed the case with his attorney and was satisfied with defense counsel's representation. At that point, Marks's co-defendant indicated he wanted more time to consult with his attorney.

         After the trial court afforded both men time to consult with their defense counsels, it continued the Boykin colloquy. Marks's defense counsel stated he had informed Marks that first-degree robbery was a violent offense and he would not be eligible for parole until after serving 85% of his eleven-year sentence. Ultimately, the trial court found Marks's guilty plea was knowingly, intelligently and voluntarily entered. Sentencing was set for March 18, 2016.

         When Marks appeared for sentencing on March 18, 2016, he informed the trial court that he wanted to withdraw his guilty plea. Marks claimed he had been unable to contact defense counsel regarding his desire to withdraw his plea because counsel set up his telephone to where Marks could not contact him. Defense counsel denied that his phone was not accessible by Marks and indicated he would file a motion if Marks wanted to withdraw his guilty plea. Marks indicated he did not want to speak to his counsel and stated he wanted to withdraw his plea because he had been "played." The trial court declined to allow Marks to withdraw his guilty plea through an oral motion but granted him leave to file a written motion.

         On March 21, 2016, defense counsel, who negotiated the plea agreement, filed a motion to withdraw Marks's guilty plea. In that motion, the following claims were made: (1) Marks had not previously been in adult court and did not fully understand the proceedings and the consequences of his plea; (2) he did not fully contemplate the questions asked by the trial court when he entered his guilty plea to make an informed decision; and (3) he believed he would receive the same nine-year and one-half year sentence at 20% parole eligibility as did his co-defendant.

         On March 22, 2016, defense counsel appeared with Marks for final sentencing. At the time, the trial court questioned Marks about the grounds for his motion to withdraw his guilty plea. No witnesses were sworn, and defense counsel remained silent during the trial court's questioning of Marks.

         The presentence investigation (PSI) report revealed that despite Marks's claim that he never been in adult court, he had been sentenced in Illinois when he was eighteen years and five months old. From the discussion among the Commonwealth, defense counsel and the trial court, it was unclear to those present whether Marks was an adult when he committed the Illinois offense. Defense counsel stated that he had not reviewed the PSI and offered no argument as to whether Marks's Illinois conviction could be used to support a persistent felony charge in Kentucky.

         After learning of Marks's Illinois conviction, the Commonwealth indicated it did not oppose Marks's motion but that if the plea was withdrawn, it would investigate whether the Illinois conviction could support a persistent felony offender charge in Kentucky. The trial court then gave Marks additional time to confer with counsel about whether he wanted to pursue his ...

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