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