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Dorsey v. Commonwealth

Supreme Court of Kentucky

November 1, 2018

FREDERICK DORSEY APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          ON REVIEW FROM COURT OF APPEALS CASE NO. 2014-CA-000809-MR JEFFERSON CIRCUIT COURT NO. 09-CR-003446-001

          APPELLANT: Frederick Dorsey, Pro se Eastern Kentucky Correctional Complex

          COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Kenneth Wayne Riggs Mark Barry Taylor Allen Payne Assistant Attorneys General Office of Criminal Appeals.

          OPINION

          HUGHES, JUSTICE.

         AFFIRMING

         After denying Frederick Dorsey's motion to withdraw his guilty plea, the Jefferson Circuit Court imposed a thirty-five-year prison sentence on Dorsey in accordance with the plea agreement. Following sentencing, Dorsey filed a pro se Rule of Criminal Procedure (RCr) 11.42 motion, alleging that he received ineffective assistance of counsel and was coerced into taking the plea. The trial court denied Dorsey's motion and the Court of Appeals affirmed. We granted discretionary review to determine whether a conflict of interest existed when Dorsey's counsel represented him on the motion to withdraw the plea and whether Dorsey was coerced into entering a guilty plea. Finding neither a conflict of interest nor coercion, we affirm the Court of Appeals.

         FACTS AND PROCEDURAL HISTORY

         On November 19, 2009, Frederick Dorsey was indicted on four counts of first-degree robbery and one count each of burglary, receiving stolen property, being a convicted felon in possession of a firearm, and being a persistent felony offender. Dorsey, along with a co-defendant, entered the victims' home and held the adult victim and two of her children at gunpoint while demanding money and jewelry. A third child was hiding in a closet and called the police. The police arrived and discovered Dorsey and the co-defendant still inside the house and in the process of restraining the victims with duct tape.

         On October 5, 2010, Dorsey entered a guilty plea. The trial court engaged in a lengthy Boykin colloquy to ensure that Dorsey entered his plea knowingly, voluntarily, and intelligently. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969). Notably, the trial court asked Dorsey if he had had enough time to talk with counsel and was satisfied with counsel's advice, to which he responded in the affirmative. The trial court also asked Dorsey if there was anything about the proceedings that he did not understand and whether he had any questions for the court or his counsel. Dorsey responded "no," and further stated that he was not coerced or threatened to enter a guilty plea. The trial court found Dorsey's plea was made knowingly, voluntarily, and intelligently.

         Shortly after entering the guilty plea, Dorsey contacted counsel and requested that he file a motion asking the judge to change his sentence to provide for parole eligibility after he served 20 percent of the thirty-five-year sentence. Counsel informed Dorsey that the judge did not have the authority to make such a change. Dorsey then informed counsel that he wanted to withdraw his plea based on this misunderstanding. Counsel filed the motion, which stated that at the time Dorsey entered his plea, he was under the impression that the trial judge had the authority to change his parole eligibility from 85 percent time served to 20 percent.

         Dorsey's motion was scheduled for the October 25, 2010 motion hour. When Dorsey's case was called, counsel informed the trial court that it was Dorsey's motion to withdraw his plea and that it was against counsel's advice. Counsel also told the trial court that he felt an obligation to file the motion on Dorsey's behalf because it was what Dorsey wanted to do. Since Dorsey was not present at the motion hour, the trial judge informed counsel that he would hear what Dorsey had to say at sentencing on November 18, 2010.

         At sentencing, the trial court addressed Dorsey's motion to withdraw his guilty plea, noting that the issue came down to whether the plea was knowingly and voluntarily entered. In response to the motion, the Commonwealth stated that it found it impossible to believe that parole eligibility did not come up in conversations between Dorsey and his counsel, given the extended discussions on plea offers between the Commonwealth and the defense. The Commonwealth also noted the overwhelming evidence against Dorsey, who, as noted, was apprehended in the victims' home.

         The judge first asked Dorsey's counsel whether Dorsey was claiming ineffective assistance of counsel, to which counsel responded that the motion was not made under RCr 11.42. Interrupting counsel's response, the judge stated that he was not referring to RCr 11.42 specifically, but that part of determining whether Dorsey could withdraw his plea involved whether or not he received ineffective assistance. Counsel stated that ineffective assistance was not part of the motion and that the reasoning behind the motion was simply that Dorsey did not understand the consequences of the plea. When the judge inquired about why Dorsey did not understand the consequences, defense counsel responded that he did not know, but that, as Dorsey's attorney, he could state his recollection of their conversations. Counsel suggested that the court could hear directly from Dorsey. The trial judge then indicated that he needed to hear from both, meaning Dorsey and counsel.

         At that point, the trial judge placed Dorsey's counsel under oath and questioned him. Counsel stated his recollection was that he informed Dorsey that first-degree robbery is an 85 percent crime, i.e., a defendant must serve 85 percent of his sentence before being parole eligible. According to counsel, Dorsey did not ask him whether the judge could change parole eligibility after the plea. The judge then asked counsel whether he gave Dorsey the impression that the judge could change parole eligibility and counsel stated that he gave no such impression. Counsel stated that his responses were based on his recollections, and that "we can certainly hear [Dorsey's] recollection as well." The trial judge then engaged in the following questioning with Dorsey before denying the motion:

Judge: You heard [counsel] say that he never told you that the judge could change the plea and make you eligible for parole. Are you saying it's your understanding that you thought that the judge could reduce your 85 percent parole eligibility to 20 percent? Is that what your testimony is?
Dorsey: Yes sir.
Judge: What was that based on, Mr. Dorsey?
Dorsey: Just thought it was up to the judge.
Judge: To reduce the amount of the plea? Of the parole eligibility?
Dorsey: Yes sir.
Judge: Well now you heard [counsel] tell you that it was going to be 85 percent - did he - are you saying he didn't tell you that?
Dorsey: No, he told me.
Judge: Okay. Well why would you think the judge could ...

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