IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED " PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: FEBRUARY 14, 2019 NOT TO BE PUBLISHED
2017-SC-000574-MR
CURRY NICELY APPELLANT
ON APPEAL FROM OHIO CIRCUIT COURT V. HONORABLE THOMAS O. CASTLEN, SPECIAL JUDGE NO. 16-CR-00215
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Pursuant to an agreement with the Commonwealth, Appellant Curiy
Nicely pled guilty to two counts of first-degree criminal abuse and one count of
receiving stolen property. He later filed a motion to withdraw his guilty plea,
which the trial court denied. Appellant submits that his plea was not
voluntary, and alternatively, that the attorney who represented him at the
hearing on the withdrawal motion had an actual conflict of interest, rendering
him without counsel. He seeks vacation of his sentence and appointment of
“conflict-free” counsel. Because the record affirmatively demonstrates that
Appellant’s plea was voluntary, and counsel’s performance at the plea
withdrawal hearing was not conflicted or inadequate, we affirm the judgment of
the Ohio Circuit Court. FACTUALAND PROCEDURALBACKGROUND
An Ohio County grand jury returned an indictment in October 2016
charging Nicely with twenty offenses. Alicia Payne was named as a co
defendant on nineteen offenses. Mark Nicely, Appellant’s father, was named as
a co-defendant on thirteen offenses. Appellant was taken into custody a few
days later. Appellant and his father signed a waiver of dual representation and
were represented by the same attorney.1
Appellant’s bail was set at $50,000 cash, and multiple requests for a
bond reduction were denied. Nine months after arraignment, Appellant
entered a guilty plea to three offenses, criminal abuse in the first degree (child
twelve (12) years of age or less) (two counts) and receiving stolen property
(property value over $500 but less than $10,000).2 The other seventeen
charges against Appellant were dismissed: second-degree assault (two counts),
first-degree wanton endangerment (two counts), abandonment of a minor (two
counts), first-degree unlawful imprisonment (two counts), endangering the
welfare of a minor (two counts), failure to report dependent neglect/abuse (two
counts), third-degree terroristic threatening (two counts), theft by unlawful
taking under $1,000,000 (one count), tampering with physical evidence (one
1 Mark Nicely was released on bond prior to his arraignment.
2 Co-defendant Payne entered a plea to these charges on the same day. The sentencing recommendation for her was the same as Appellant’s, and like Appellant, she was released pending sentencing.
2 count), and first-degree persistent felony offender. Appellant was released on
bond until sentencing.3 All charges against Mark Nicely were dismissed.4
Shortly before the September 5, 2017 sentencing hearing date,
Appellant’s attorney filed on his behalf a Criminal Rule (RCr) 8.105 motion to
withdraw the guilty plea. Counsel based the written motion on newly-
discovered evidence; he stated particularly that while being released on bond,
exculpatory statements were made to him by co-defendant Payne. Appellant
moved at the motion’s hearing for a continuance because co-defendant Payne
was not present to testify,6 but the Ohio Circuit Court denied the continuance.7
However, the court held an evidentiary hearing and heard the other grounds
supporting Appellant’s motion.
3 About a month later, the Commonwealth moved to revoke the bond. An arrest warrant was issued. The Commonwealth’s revocation motion was noticed for hearing on Appellant’s originally scheduled sentencing date. Appellant appeared and remained in custody until sentencing two weeks later on September 21, 2017. 4 Mark Nicely was not named as being complicit in these offenses: theft by unlawful taking under $1,000,000; tampering with physical evidence; failure to report dependent neglect/abuse; terroristic threatening; and receiving stolen property under $10,000. 5 RCr 8.10 pertinently provides that “any time before judgment the court may permit the plea of guilty ... to be withdrawn and a plea of not guilty substituted.”
6 Co-defendant Payne was not in custody and had absconded Probation and Parole. 7 The trial court noted that when deciding to enter his plea, Appellant decided to forego a jury hearing evidence that he did not harm the children and was not responsible for the harm the children suffered. See Brady v. United States, 397 U.S. 742, 748 (1970) (“[T]he plea is more than an admission of past conduct; it is the defendant’s consent that judgment of conviction may be entered without a trial—a waiver of his right to trial before a jury or a judge.”).
3 In response to his counsel’s prompt to explain how his plea was
involuntary, Appellant stated that he succumbed to pressures related to his
innocent father being a named co-defendant on thirteen of the charges and his
mother’s cancer no longer being in remission, a health status he learned just
prior to entering into the plea agreement. Appellant’s attorney added that the
main factor related to Appellant’s plea was his father getting a dismissal8 and
his mother’s cancer return. Appellant’s counsel additionally explained that,
after release pending sentencing, Appellant had discovered text messages on
his phone which provided evidence contrary to the incriminating timeline
information provided by an officer. Appellant did not have access to his phone
while incarcerated so it was not until after his plea and his release on bond
that the texts came to light.
The trial court denied Appellant’s motion, finding he knowingly and
voluntarily entered the plea. On the same day, in accordance with the plea
agreement, the trial court also entered its final judgment sentencing Appellant
to serve a total of twenty years in prison: ten years on each criminal abuse
count, to be served consecutively; and five years on the receiving stolen
property count, to be served concurrently with the criminal abuse sentences.
He now appeals the trial court’s denial of his motion to withdraw the guilty
plea.
8 Appellant’s attorney mentioned other factors which may have played a role in Mark Nicely’s case being dismissed: Mark Nicely had no prior criminal history and a witness had given a statement that Mark Nicely had nothing to do with the case.
4 ANALYSIS
I. Appellant’s guilty plea is valid and the trial court did not abuse its discretion when denying Appellant’s motion to withdraw the plea.
Appellant asserts that his guilty plea was not entered voluntarily. He
argues, however, that even if the plea were validly entered, the trial court
abused its discretion because granting the plea withdrawal motion was the fair
and just thing to do. We address each argument in turn.
A. The guilty plea was made voluntarily.
A criminal defendant’s waiver of a constitutional right is valid when he
voluntarily, knowingly, and intelligently waives the right. Brady v. United
States, 397 U.S. 742, 748 (1970); King v. Commonwealth, 374 S.W.3d 281, 290
(Ky. 2012) (citations omitted). “Due process requires a trial court to make an
affirmative showing, on the record, that a guilty plea is voluntary and
intelligent before it may be accepted.” Edmonds v. Commonwealth, 189 S.W.3d
558, 565 (Ky. 2006) (citing Boykin v. Alabama, 395 U.S. 238, 241-42 (1969)).
When a defendant enters a plea, the court is charged with making sure the
defendant is entering the plea intelligently with “a full understanding of what
the plea connotes and of its consequence.” Boykin, 395 U.S. at 243-44.9 The
standard forjudging the voluntariness of a guilty plea knowingly entered is
essentially whether the plea was “induced by threats (or promises to
9 Boykin, 395 U.S. at 243-44 (“What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence.”).
5 discontinue improper harassment), misrepresentation (including unfulfilled or
unfulfillable promises), or perhaps by promises that are by their nature
improper as having no proper relationship to the prosecutor’s business [e.g.
bribes).” Brady, 397 U.S. at 755 (quoting Shelton v. U.S., 246 F.2d 571, 572
n.2 (5th Cir. 1957)); see also Commonwealth v. Tigue, 459 S.W.3d 372, 393 (Ky.
2015). If such threats, misrepresentations, or improper promises by the
Commonwealth or the trial court did not induce the plea, the plea must stand.
Brady, 397 U.S. at 755; Edmonds, 189 S.W.3d at 566; see Adams v. Tuggle,
189 S.W.2d 601, 602 (Ky. 1945).
On July 20, 2017, Appellant filed his motion to enter a guilty plea,10 and
advised the court that he understood the contents of the written motion which
he reviewed with his attorney. His plea was taken the same day. There is no
suggestion that the trial court failed to engage in an appropriate, required
Boykin colloquy when Appellant entered his plea. The trial court properly
advised Appellant of his constitutional rights at the plea hearing. Appellant
clearly stated multiple times that he was entering the guilty plea knowingly and
voluntarily and that his plea was made because he was guilty and for no other
reason. He indicated that he benefitted from his counsel’s assistance and said
that he was satisfied with his lawyer’s representation. In short, the record
10 The AOC-491 form was used. By signing this form, among other things, Appellant declared his guilt; the guilty plea was freely, knowingly, intelligently, and voluntarily made; and other than the sentencing recommendation contained in the Commonwealth’s offer, no one promised him any other benefit in return for the plea nor had anyone forced or threatened him to plead guilty.
6 indicates that Appellant understood what he was doing and the constitutional
rights he was waiving when he entered the guilty plea. “Solemn declarations in
open court carry a strong presumption of verity.” Blackledge v. Allison, 431
U.S. 63, 74 (1977). The circumstances surrounding the entry of the guilty plea
support affirming the trial court’s denial of the motion to withdraw the plea.
A plea of guilty is not unintelligently made merely because a defendant
may have “misapprehended the quality of the State’s case,” Brady, 397 U.S. at
757, a misapprehension Appellant apparently infers from information he
seemingly acquired after the plea, i.e., that a co-defendant may have been a
favorable witness and he had evidence in his own possession (his phone with
text messages) which would raise doubt in the Commonwealth’s proof against
him. Such lack of information at the time of the plea does not negate the truth
or reliability of Appellant’s plea. Prior to his plea, Appellant had the requisite
factual knowledge to assert his innocence. The only changed circumstance
between when Appellant pled guilty and when he moved to withdraw the plea
was the potential strength of his case.
Likewise, the pressures described by Appellant at the time of his plea
entry are not circumstances constituting coercion. A plea of guilty is not
invalid because it may have been entered to avoid the Commonwealth’s
prosecution of a family member or to secure release from incarceration to
spend time with an ill family member. See Brady, 397 U.S. at 756-57; Blanton
v. Commonwealth, 516 S.W.3d 352, 356, 357 (Ky. App. 2017) (defendant’s
calculated decision to enter a plea which would result in his immediate release
7 and allow him to see his terminally ill mother did not render the plea
involuntary).
That the [pressure] caused the plea . . . does not necessarily prove that the plea was coerced and invalid as an involuntary act.
The State to some degree encourages pleas of guilty at every important step in the criminal process. For some people, their breach of a State's law is alone sufficient reason for surrendering themselves and accepting punishment. For others, apprehension and charge, both threatening acts by the Government, jar them into admitting their guilt. In still other cases, the post-indictment accumulation of evidence may convince the defendant and his counsel that a trial is not worth the agony and expense to the defendant and his family. All these pleas of guilty are valid in spite of the State's responsibility for some of the factors motivating the pleas; the pleas are no more improperly compelled than is the decision by a defendant at the close of the State’s evidence at trial that he must take the stand or face certain conviction.
Of course, the agents of the State may not produce a plea by actual or threatened physical harm or by mental coercion overbearing the will of the defendant. But nothing of the sort is claimed in this case ....
Brady, 397 U.S. at 750.
Substantial evidence supports the trial court’s conclusion that Appellant
knowingly and voluntarily entered the plea. Edmonds, 189 S.W.3d at 566
(citations omitted). Accordingly, his plea must be upheld.
B. The denial of the plea withdrawal was not an abuse of discretion.
Appellant argues that even if he entered the plea voluntarily, the trial
court abused its discretion when denying his motion to withdraw the plea.
Like the defendant in the recently-decided Thomas v. Commonwealth, 2016-SC 8 000593-MR, 2017 WL 5023098 (Ky. Nov. 2, 2017), Appellant complains that
the federal test for withdrawing a plea, whether fair and just reasons support
the withdrawal, should be applied when the trial court hears an RCr 8.10
motion.11 In particular, he seeks application of the seven factors identified in
United States v. Hockenberry, 730 F.3d 645 (6th Cir. 2013), which help guide
whether a federal defendant may withdraw a guilty plea under Federal Rules of
Criminal Procedure (Fed. R. Crim. P.) 11(d)(2)(B).12
The seven, non-exclusive Hockenberry factors are:
(1) the amount of time that elapsed between the plea and the motion to withdraw it; (2) the presence (or absence) of a valid reason for the failure to move for withdrawal earlier in the proceedings; (3) whether the defendant has asserted or maintained his innocence;
11 Before this Court, this issue has been primarily considered in unpublished cases. We previously noted that this Court has declined to adopt this approach in our criminal rules. Britton u. Commonwealth, 2013-CA-001732-MR, 2015 WL 3637486, at *3 (Ky. June 11, 2015) (citing Bowman v. Commonwealth, 2005-SC-000234-TG, 2006 WL 141586, at *9 (Ky. Jan. 19, 2006), and Commonwealth u. Pridham, 394 S.W.3d 867 (Ky. 2012)). In particular, Justice Scott’s dissent in Bowman, 2006 WL 141586, at *9, advocated for the use of this “fair and just” analytical approach (under then Fed. R. Crim. P. 32(d)) when a reviewing court considers newly discovered evidence within the totality of circumstances surrounding a guilty plea. He stated, Adding a “fair and just” standard in circumstances such as this, brings the standard for withdrawal of one’s plea closer to the standard for new trial, which is where it should be for newly discovered evidence. Therefore, under the facts and circumstances as occurred here, the standard for setting aside a plea should mimic, or at least be consistent with, the standard as applied to considerations of newly discovered evidence on motions for new trial. In Brock v. Commonwealth, 2015-SC-000257-MR, 2016 WL 4487506 (Ky. Aug. 25, 2016), and Pridham, 394 S.W.3d 867, the issue was not preserved and not addressed. In Blanton v. Commonwealth, 516 S.W.3d 352, 357 (Ky. App. 2017), the Court of Appeals rejected the proposed application of Fed. R. Crim. P. 11(d)(2)(B) via the test set forth in Hockenberry as not constitutionally applicable to the state courts. 12 Fed. R. Crim. P. 11(d)(2)(B) provides: “A defendant may withdraw a plea of guilty . . . after the court accepts the plea, but before it imposes sentence if: . . . the defendant can show a fair and just reason for requesting the withdrawal.”
9 (4) the circumstances underlying the entry of the guilty plea; (5) the defendant’s nature and background; (6) the degree to which the defendant has had prior experience with the criminal justice system; and (7) potential prejudice to the government if the motion to withdraw is granted.
Id. at 662 (citations omitted).
After the 1983 amendment to Fed. R. Crim. P. 32(d) (now Fed. R.
Crim. P. 11(d)(2)(B)) expressly adopted the “fair and just” standard, the
Sixth Circuit stated in United States v. Triplett, that “[i]n determining
whether there is a fair and just reason to grant a motion to withdraw a
plea, the district court must review all the circumstances surrounding the
original entrance of the plea as well as the motion to withdraw” and
identified reasons for consideration now enumerated within the
Hockenberry factors. 828 F.2d 1195, 1196-97 (6th Cir. 1987) (emphasis
added). We recognized the Hockenberry factors’ redundancies to plea
validity considerations in Thomas and declined to alter our precedent.
2017 WL 5023098, at *2.
When a defendant moves under RCr 8.10 for a plea withdrawal, he has
the burden of proving that the withdrawal of a voluntarily entered plea is
justified. See Edmonds, 189 S.W.3d at 566; Rodriguez v. Commonwealth, 87
S.W.3d 8, 10 (Ky. 2002). Granting the withdrawal is a matter left to the trial
court’s discretion. Bronk v. Commonwealth, 58 S.W.3d 482, 486 (Ky. 2001).
“[O]ur abuse of discretion standard takes into account the fairness and
reasonableness of the trial court’s decision making,” Britton, 2015 WL
10 3637486, at *3, the same standard used by the federal courts when reviewing
application of the Hockenberry factors; see United States v. Alexander, 948 F.2d
1002, 1003 (6th Cir. 1991).
Appellant complains that the trial court appeared to rely solely on
the plea colloquy when denying his motion. However, properly, the trial
court considered only those reasons offered by Appellant for withdrawing
his plea. Under the grounds offered in support of the motion, we cannot
say that the trial court’s denial of Appellant’s RCr 8.10 motion was
arbitrary, unreasonable, unfair, or unsupported by sound legal
principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
As to the circumstances surrounding the motion, such as minimal
time elapsing between the plea and motion and the inability to move for
withdrawal earlier, which Appellant now targets through Hockenberry as
reasons his withdrawal motion should have been granted, these reasons
were not specifically presented to the trial court for consideration.
Because these reasons were not preserved for review, we decline to
address them further here.
II. Appellant was not denied counsel during the plea withdrawal hearing.
Appellant alternatively asserts his counsel was conflicted during the
hearing on the withdrawal motion and seeks vacation of his convictions and a
remand with directions to appoint him a conflict-free attorney. He argues first
that his counsel was conflicted because of the plea withdrawal motion. He also
argues that his counsel was potentially conflicted because he also represented 11 Mark Nicely, Appellant’s father. His claim that he was denied conflict-free
counsel is unpreserved, but he insists Beard v. Commonwealth, 302 S.W.3d
643 (Ky. 2010), requires reversal if an actual conflict exists, regardless of
preservation. Alternatively, he seeks palpable error review if he is unsuccessful
on his Sixth Amendment denial of counsel claim.
A. Defense counsel was not conflicted by the withdrawal motion.
“Representation of a criminal defendant entails certain basic duties.
Counsel’s function is to assist the defendant, and hence counsel owes the
client a duty of loyalty, a duty to avoid conflicts of interest.” Strickland v.
Washington, 466 U.S. 668, 688 (1984) (citation omitted). To prevail on an
ineffective assistance of counsel claim based on a conflict of interest, a
defendant must establish that an actual conflict of interest adversely affected
his attorney's performance; a potential conflict of interest is insufficient to
warrant relief. See Kirkland v. Commonwealth, 53 S.W.3d 71, 75 (Ky. 2001)
(citing Cuyler v. Sullivan, 446 U.S. 335 (1980)). An actual conflict exists when
an attorney actively represents incompatible interests; it is more than a “mere
theoretical division of loyalties.” Mickens v. Taylor, 535 U.S. 162, 171 (2002).
Commonwealth v. Tigue, 459 S.W.3d 372 (Ky. 2015) and Zapata v.
Commonwealth, 516 S.W.3d 799 (Ky. 2017), are two recent cases decided by
this Court in which an actual conflict of interest was found. Appellant cites
both cases as supporting his arguments.13 In those cases the motion to
13 Appellant also cites non-binding Sturgill v. Commonwealth, 533 S.W.3d 204 (Ky. App. 2017), and Ruano v. Commonwealth, 2014-SC-000469-MR, 2015 WL
12 withdraw the plea was based on allegations of defense counsel’s misconduct,
i.e., defense counsel coerced the plea. Under such circumstances, it is obvious
that a lawyer cannot act as an advocate on his client’s behalf and give
testimony adverse to that client’s interests in the same proceeding. Upon
review of these cases, we disagree with Appellant’s contention that he did not
have conflict-free counsel representing him on his plea withdrawal motion and
is entitled to relief.
In Tigue, soon after entering his guilty plea, the defendant decided to
move the court for its withdrawal. 459 S.W.3d at 380. His efforts to have his
attorneys assist with the withdrawal motion were unsuccessful and a written
motion was not filed before the sentencing hearing. Id. At the sentencing
hearing, the defendant orally asked to withdraw his plea and his attorneys did
not assist with the motion. Id. at 381. The defendant stated that the plea was
involuntary, asserting he had been threatened and his counsel never showed
any interest in defending him, as reflected in letters Tigue sent to the court. Id.
at 381, 387. The trial court denied the motion but acknowledged defendant’s
allegations of his counsel’s misconduct in letters to the court and the likelihood
he would pursue post-judgment remedies. Id. at 381.
Tigue later filed a pro se RCr 11.42 ineffective assistance of counsel
motion, and then appointed counsel filed a supplemental motion asking for
relief on other grounds — denial of counsel at the withdrawal motion’s hearing
9243549 (Ky. Dec. 17, 2015). He cites Ruano as persuasive authority, noting it was cited by the Court of Appeals in Sturgill and this Court in Zapata.
13 and denial of conflict-free counsel. Id. On discretionary review, this Court
concluded that the hearing on the withdrawal motion was a critical stage of the
proceedings and that Tigue was denied counsel in his efforts to withdraw the
plea, i.e., his efforts to contact counsel after the plea entry were fruitless and
during the plea discussion his counsel offered no assistance in pursuing the
motion. This Court further held that Tigue was denied assistance of conflict-
free counsel during the hearing because the defendant’s coercion allegations
placed his attorneys in a position of having to defend themselves and
potentially making statements adverse to their client. These circumstances
created an actual conflict of interest adversely affecting the attorneys’
performance.
In Zapata, the defendant’s counsel prepared a plea withdrawal motion,
indicating she took no position on the motion. 516 S.W.3d at 801. Afterward,
Zapata filed another withdrawal motion, requesting an evidentiaiy hearing
based upon an ineffective assistance of counsel allegation. Id. At the hearing,
Zapata argued his counsel deceived him by informing him that he could
withdraw his plea any time before sentencing with no problem. The trial court
did not hold an evidentiaiy hearing and no sworn testimony was taken. Id.
Although defense counsel did not assist Zapata at the plea withdrawal motion
hearing and informed the court that she was put in an awkward position by
her client’s allegations toward her, the trial court concluded Zapata, acting as
hybrid counsel, was representing himself “at least in part.” Id. This Court,
however, concluded an actual conflict existed based upon the defendant’s
14 allegations and counsel’s indication that a response to the allegations was not
in her client’s interest. As in Tigue, we held the defendant was deprived of
conflict-free counsel at the plea withdrawal motion hearing. Id. at 802-03.
In the instant case, defense counsel filed and pursued the motion for the
plea withdrawal. There is no indication that the motion was against defense
counsel’s advice. Moreover, defense counsel advocated for the plea withdrawal
during the hearing based upon both the exculpatory evidence grounds and
“pressures faced” grounds.
Unlike in Tigue and Zapata, Appellant did not present an ineffective
assistance of counsel claim,14 nor did he allege defense counsel coerced his
plea when seeking to withdraw it. When his counsel asked him to explain to
the court how his guilty plea was involuntary, Appellant stated, “the pressure
was being put on — because my father was also indicted in this case and my
dad had nothing to do — he’s never been around nothing, anything said in this
— for me to take a plea on it. Well, also, that morning, five minutes in that
little room, I find out my mother’s cancer is back. ... To be quite honest, I
would have said anything at the time to go home and spend time with her.”
Appellant’s testimony reflects that he was experiencing family pressures,
and that some of that pressure may have come from plea bargaining in a case
where his father also faced charges. Appellant, however, now suggests that his
14 Appellant did not allege that he informed counsel of the texts prior to the plea and his counsel failed to investigate the texts. Appellant acknowledges that the exculpatory evidence claims did not directly create a conflict with trial counsel.
15 plea was coerced by his attorney. He points to his testimony stating that
without being asked to explain all the circumstances surrounding how the
“pressure was put on him,” he may have been referring to his counsel
pressuring him to enter the plea, creating a conflict of interest. We cannot
possibly find Appellant’s testimony comparable to that in Tigue and Zapata.
Appellant had the opportunity to present his plea challenges to the trial court,
but unlike Tigue and Zapata, there were no allegations that placed the
Appellant’s trial counsel “in the untenable position of defending [his] own
interests which were adverse to [his] clients.” Zapata, 516 S.W.3d at 803.
Appellant’s other efforts to show his defense counsel was conflicted when
engaging in practices which are usually proper, often necessary, or prescribed
by the criminal justice process are likewise unpersuasive. Although Appellant
argues otherwise, it is of no consequence that the written withdrawal motion
contained only the exculpatory evidence grounds when defense counsel also
argued the “pressures faced” grounds during the motion’s hearing. See Tigue,
459 S.W.3d at 386. Without other evidence of defense counsel’s conflict, the
motion cannot be seen as anything but a valid motion. A conflict is also not
created because defense counsel candidly responded to the trial court’s
question, acknowledging he was confident at the plea hearing when he
conveyed that the plea was voluntarily, freely, and intelligently entered but
later was arguing that Appellant’s plea was not voluntary. He insisted the
biggest factor considered by Appellant at that point was that his father was
getting a dismissal of his case and his mother’s cancer had returned so he
16 wanted to see her. Under the circumstances presented here, we do not view
defense counsel’s advocacy for his client to be tainted.
The facts here are plainly unlike those in Tigue and Zapata. Appellant’s
counsel was not burdened by an actual conflict of interest and Appellant was
not otherwise denied counsel during the plea withdrawal motion hearing.
B. Defense counsel’s potential conflict due to dual representation was waived.
Appellant further identifies ways his defense attorney may have been
conflicted because he also represented Appellant’s father. Beyond his
allegation that his plea may have been coerced by defense counsel to get his co
defendant father’s charges dismissed, Appellant also states that defense
counsel had an interest in the plea not being withdrawn because Mark Nicely
could have been potentially charged again. Appellant further alleges that the
terms of the plea agreement suggest a conflict of interest because he accepted a
plea offer on three charges for a recommended twenty-year sentence when it
appears twenty years is the absolute maximum he could have received no
matter how many of the other charges he was convicted of and what sentences
were imposed. As he paints it, he took a maximum sentence while his co
defendant father walked free.15
To reiterate, a potential conflict of interest does not warrant relief.
Appellant must show an actual conflict of interest which affected his attorney’s
15 Although not addressed by Appellant, this was the same plea deal offered and accepted by co-defendant Payne.
17 performance adversely. Beard, 302 S.W.3d at 646. Appellant has not made
that showing. Appellant signed a waiver of dual representation stating he
understood the possibility of a conflict of interest on the part of his attorney,
that what may be or seem to be in the interest of one defendant may not be in
the interest of the co-defendant. Afterward, Appellant never raised any
possible conflict of interest arising from the dual representation in the trial
court. This new assertion appeared before this Court.
Having failed to preserve the issue, Appellant seeks also RCr 10.26 relief.
RCr 10.26 provides: “A palpable error which affects the substantial rights of a
party may be considered ... by an appellate court on appeal, even though
insufficiently raised or preserved for review, and appropriate relief may be
granted upon a determination that manifest injustice has resulted from the
error.” However, under the facts of this case, we do not find a palpable error,
an error which “is so manifest, fundamental and unambiguous that it
threatens the integrity of the judicial process.” Harp v. Commonwealth, 266
S.W.3d 813, 823 (Ky. 2008) (citing Martin v. Commonwealth, 207 S.W.3d 1, 5
(Ky. 2006)). Without such an error, relief under RCr 10.26 is not available to
Appellant.
CONCLUSION Upon review of the record, we conclude that Appellant’s guilty plea is
valid, and the trial court did not abuse its discretion when denying the plea
withdrawal motion. Appellant was not denied the assistance of counsel on his
18 plea withdrawal motion. Accordingly, we affirm the judgment of the Ohio
Circuit Court.
C.J. Minton; Hughes, Keller, Lambert, VanMeter, and Wright, JJ., sitting.
All concur.
COUNSEL FOR APPELLANT:
Kathleen Kallaher Schmidt Assistant Public Advocate Department of Public Advocacy
COUNSEL FOR APPELLEE:
Andy Beshear Attorney General of Kentucky
Mark Barry Assistant Attorney General Office of Criminal Appeals