FROM OLDHAM CIRCUIT COURT HONORABLE KAREN A. CONRAD, JUDGE
ACTION NO. 17-CR-00014
FOR APPELLANT: Steven Nathan Goens Frankfort, Kentucky
FOR APPELLEE: Andy Beshear Attorney General Courtney J.
Hightower Assistant Attorney General Frankfort, Kentucky
BEFORE: CLAYTON, CHIEF JUDGE; SPALDING AND K. THOMPSON,
CLAYTON, CHIEF JUDGE.
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.
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
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.
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.
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.
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.
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.
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
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."