DEVANTE A. MARKS APPELLANT
COMMONWEALTH OF KENTUCKY APPELLEE
FROM BALLARD CIRCUIT COURT HONORABLE TIMOTHY A. LANGFORD,
JUDGE ACTION NO. 16-CR-00002
FOR APPELLANT: Kathleen K. Schmidt Assistant Public Advocate
Dept. of Public Advocacy Frankfort, Kentucky
FOR APPELLEE: Andy Beshear Attorney General of Kentucky M.
Brandon Roberts Assistant Attorney General Frankfort,
BEFORE: CLAYTON, CHIEF JUDGE; KRAMER AND THOMPSON, JUDGES.
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.
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.
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.
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.
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
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.
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.
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.
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 ...