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Brown v. Commonwealth

Court of Appeals of Kentucky

July 26, 2019



          BRIEFS FOR APPELLANT: Steven Nathan Goens Frankfort, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky




         Kenneth Brown appeals from an order of the Oldham Circuit Court denying his motion to withdraw his guilty plea pursuant to Kentucky Rules of Criminal Procedure (RCr) 8.10. Brown alleges he was denied his right to effective assistance of counsel. We affirm.

         Kenneth Brown is currently serving a 24-year sentence from an earlier conviction for murder, wanton endangerment, and tampering with physical evidence in Jefferson Circuit Court. On January 13, 2017, Brown was indicted for intimidating a participant in the legal process during a pretrial hearing in Oldham Circuit Court on three charges of solicitation to murder and being a second-degree persistent felony offender (PFO). The indictment arose from an alleged threat to kill a prosecutor during the aforementioned pretrial hearing in Oldham Circuit Court.

         Brown pled not guilty to the two-count indictment and the action proceeded to trial on December 1, 2017. The jury found Brown guilty of intimidating a participant in the legal process. Brown, prior to the penalty phase of his trial, entered a motion to enter guilty plea regarding the second-degree PFO charge. In exchange for Brown's guilty plea, the Commonwealth recommended Brown serve five years for intimidating a participant in the legal process, enhanced with an additional two years by the second-degree PFO charge. The agreement also stipulated that Brown relinquish his right to all appeals associated with the case, and Brown agreed.

         During the colloquy preceding the trial court's acceptance of the guilty plea, there was confusion about how the plea would affect Brown's parole eligibility date. Defense counsel advised Brown that his parole eligibility date would not change from its current status of twenty years as a result of the guilty plea. Brown also asked the trial court if the plea would affect his parole eligibility date and the court did not directly answer the question. Defense counsel allegedly assured Brown that he would ask someone before sentencing.

         In response to the trial court's questioning, Brown stated he was not suffering from a mental disease or illness, he was not ill or under the influence of drugs or alcohol, and acknowledged that he had consulted with his attorney about the plea and was satisfied with counsel's advice. The trial court reviewed Brown's constitutional rights with him and informed him that, by pleading guilty, he was waiving those rights. Brown affirmed that he understood his sentence would be seven years and admitted that he committed the underlying crimes. He also affirmed that no threats or promises had been made to him or that he had been pressured to plead guilty. Thus, after finding the plea was knowing, intelligent and voluntary, the trial court accepted the plea.

         On January 26, 2018, Brown wrote a letter to the court requesting to withdraw his guilty plea prior to being sentenced. He alleged his counsel was ineffective for failing to explain how the plea agreement would affect his parole hearing eligibility date. According to Brown, his parole eligibility date would not remain at twenty years as he previously believed. The trial court treated the letter as a motion to set aside the guilty plea pursuant to RCr 8.10 and, following a hearing, denied the motion. Final judgment was rendered on July 5, 2018, in accordance with the terms of the plea agreement. Brown appeals.

         The trial court found that Brown received incorrect legal advice from his defense counsel about the effect the plea deal would have on his parole eligibility, but concluded that any error was not so gross nor were the consequences so dire so as to amount to ineffective assistance of counsel.

         Under our criminal rules of procedure, a court may permit a defendant to withdraw a guilty plea "[a]t any time before judgment." RCr. 8.10. As stated in Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky. App. 2004), "[i]f the plea was involuntary, the motion to withdraw it must be granted." "Whether to deny a motion to withdraw a guilty plea based on a claim of ineffective assistance of counsel first requires 'a factual inquiry into the circumstances surrounding the plea, primarily to ascertain whether it was voluntarily entered.'" Id. (quoting Bronk v. Commonwealth, 58 S.W.3d 482, 489 (Ky. 2001) (Cooper, J. concurring)). A plea is involuntary if the facts alleged, if true, "would render the plea involuntary under the Fourteenth Amendment's Due Process Clause, would render the plea so tainted by counsel's ineffective assistance as to violate the Sixth Amendment, or would otherwise clearly render the plea invalid." Commonwealth v. Pridham, 394 S.W.3d 867, 874 (Ky. 2012) (citations omitted).

         "[T]he validity of a guilty plea is not determined by reference to some magic incantation recited at the time it is taken." Bronk, 58 S.W.3d at 487. The trial court is required to examine the voluntariness of the plea based on the "totality of circumstances surrounding the plea." ...

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