RENDERED: DECEMBER 1, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2022-CA-1488-MR
DILLIAN FORD APPELLANT
APPEAL FROM CARLISLE CIRCUIT COURT v. HONORABLE TIMOTHY A. LANGFORD, JUDGE ACTION NO. 21-CR-00057
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND TAYLOR, JUDGES.
THOMPSON, CHIEF JUDGE: Dillian Ford (“Appellant”) appeals from a
judgment and sentence of the Carlisle Circuit Court resulting from a guilty plea to
amended charges of sodomy in the first degree and sexual abuse in the first
degree.1 Appellant argues that the circuit court committed reversible error in
1 Kentucky Revised Statutes (“KRS”) 510.070 and 510.110. denying his request to withdraw his guilty plea and in ordering him to pay jail fees.
After careful review, we find no error and affirm the judgment on appeal.
FACTS AND PROCEDURAL HISTORY
In 2021, Appellant was charged with various sex crimes involving a
victim under the age of twelve years old, and to whom Appellant was related. The
Commonwealth subsequently made a plea offer on amended charges, which
Appellant accepted and signed. Prior to filing the guilty plea with the circuit court,
Appellant changed his mind and wanted to take the matter to trial. Shortly before
trial was to commence on July 13, 2022, Appellant signed another guilty plea
which he submitted to the court. Pursuant to this plea offer, the Commonwealth
recommended a total sentence of fifteen years in prison on the amended charges of
sodomy in the first degree and sexual abuse in the first degree.
Sentencing was scheduled for September 15, 2022. In August 2022,
Appellant sent a letter to the circuit court requesting to withdraw his guilty plea.
Counsel was appointed, who filed a motion to withdraw the plea, and a hearing on
the motion was conducted on October 20, 2022. At the conclusion of the hearing,
the circuit court denied Appellant’s motion to withdraw the guilty plea. On
November 17, 2022, Appellant was sentenced to fifteen years in prison per the
Commonwealth’s recommendation. Appellant was ordered to pay jail fees. This
appeal followed.
-2- STANDARDS OF REVIEW
Withdrawal of Guilty Plea
Under the terms of Kentucky Rules of Criminal Procedure (RCr) 8.10, a criminal defendant who has pleaded guilty may withdraw the plea under certain conditions. “If the plea was involuntary, the motion to withdraw it must be granted. However, if it was voluntary, the trial court may, within its discretion, either grant or deny the motion.” Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky. App. 2004) (internal citations omitted). The trial court’s determination on whether the plea was voluntarily entered is reviewed under the clearly erroneous standard. Id. A decision that is supported by substantial evidence is not clearly erroneous. Id. If, however, the trial court determines that the guilty plea was entered voluntarily, then it may grant or deny the motion to withdraw the plea at its discretion. This decision is reviewed under the abuse of discretion standard. Id. A trial court abuses its discretion when it renders a decision that is arbitrary, unreasonable, unfair, or unsupported by legal principles. Id.
The test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. Sparks v. Commonwealth, 721 S.W.2d 726, 727 (Ky. App. 1986) (citing North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 164, 27 L. Ed. 2d 162 (1970)). There must be an affirmative showing in the record that the plea was intelligently and voluntarily made. Id. (citing Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 1711, 23 L. Ed. 2d 274 (1969)).
Sturgill v. Commonwealth, 533 S.W.3d 204, 208 (Ky. App. 2017).
-3- Imposition of Jail Fees
[I]n order to impose jail fees against a criminal defendant during sentencing, there must be some evidence presented that a jail fee reimbursement policy has been adopted by the county jailer with approval of the county’s governing body in accordance with KRS 441.265(2)(a).
Capstraw v. Commonwealth, 641 S.W.3d 148, 161-62 (Ky. 2022) (footnote
omitted).
ARGUMENTS AND ANALYSIS
Appellant, through counsel, first argues that the Carlisle Circuit Court
erred in failing to grant his motion to withdraw his guilty plea. He asserts that he
felt coerced by his defense counsel and investigator to accept the plea agreement
because they told him that if he did not plead guilty, he would serve the rest of his
life in prison. Appellant also argues that the circuit court did not carry out its duty
to inform him of the rights he was giving up if he entered a guilty plea. He directs
our attention to RCr 8.10, which provides that at any time before judgment the
court may allow a defendant to withdraw a guilty plea. Appellant argues that the
circuit court should have allowed him to withdraw his plea because a proper
Boykin colloquy was not made due to Appellant not being informed of all of the
consequences of the plea. Appellant contends that while the court informed him
that he was giving up the right to a trial, at which point the Commonwealth would
have to prove guilt, he was not informed that he was giving up the right not to
-4- testify against himself; the right to confront witnesses; the right to produce
evidence and witnesses; and the right to appeal. Per Boykin, Appellant contends
that waiver of rights cannot be presumed from a silent record. He seeks an opinion
reversing the circuit court’s denial of his motion to withdraw his guilty plea and
remanding the matter for trial.
On July 7, 2022, the circuit court conducted a hearing on Appellant’s
motion to enter a guilty plea. At the hearing, the court engaged in the Boykin plea
colloquy with Appellant. The court asked Appellant if he wanted to change his
plea to guilty, if he graduated from high school, and, if he could read and write.
Appellant responded in the affirmative to these questions. The court referenced
Appellant’s motion to enter a guilty plea and asked Appellant if he discussed the
agreement and motion with his counsel. The court then asked if he read and
understood the agreement, and if the signature on the motion was made by his
hand. Again, Appellant responded affirmatively.
The court went on to state that the documents in question expressly set
forth Appellant’s rights and that no one could take those rights away from
Appellant; however, that those rights could be voluntarily waived by Appellant if
he so chose in order to plead guilty. The court stated that those rights included, but
were not limited to, the requirement that the Commonwealth prove guilt if the
matter went to trial. Appellant responded “yes, sir” to each inquiry by the court.
-5- The colloquy continued with the court asking Appellant the following:
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RENDERED: DECEMBER 1, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2022-CA-1488-MR
DILLIAN FORD APPELLANT
APPEAL FROM CARLISLE CIRCUIT COURT v. HONORABLE TIMOTHY A. LANGFORD, JUDGE ACTION NO. 21-CR-00057
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND TAYLOR, JUDGES.
THOMPSON, CHIEF JUDGE: Dillian Ford (“Appellant”) appeals from a
judgment and sentence of the Carlisle Circuit Court resulting from a guilty plea to
amended charges of sodomy in the first degree and sexual abuse in the first
degree.1 Appellant argues that the circuit court committed reversible error in
1 Kentucky Revised Statutes (“KRS”) 510.070 and 510.110. denying his request to withdraw his guilty plea and in ordering him to pay jail fees.
After careful review, we find no error and affirm the judgment on appeal.
FACTS AND PROCEDURAL HISTORY
In 2021, Appellant was charged with various sex crimes involving a
victim under the age of twelve years old, and to whom Appellant was related. The
Commonwealth subsequently made a plea offer on amended charges, which
Appellant accepted and signed. Prior to filing the guilty plea with the circuit court,
Appellant changed his mind and wanted to take the matter to trial. Shortly before
trial was to commence on July 13, 2022, Appellant signed another guilty plea
which he submitted to the court. Pursuant to this plea offer, the Commonwealth
recommended a total sentence of fifteen years in prison on the amended charges of
sodomy in the first degree and sexual abuse in the first degree.
Sentencing was scheduled for September 15, 2022. In August 2022,
Appellant sent a letter to the circuit court requesting to withdraw his guilty plea.
Counsel was appointed, who filed a motion to withdraw the plea, and a hearing on
the motion was conducted on October 20, 2022. At the conclusion of the hearing,
the circuit court denied Appellant’s motion to withdraw the guilty plea. On
November 17, 2022, Appellant was sentenced to fifteen years in prison per the
Commonwealth’s recommendation. Appellant was ordered to pay jail fees. This
appeal followed.
-2- STANDARDS OF REVIEW
Withdrawal of Guilty Plea
Under the terms of Kentucky Rules of Criminal Procedure (RCr) 8.10, a criminal defendant who has pleaded guilty may withdraw the plea under certain conditions. “If the plea was involuntary, the motion to withdraw it must be granted. However, if it was voluntary, the trial court may, within its discretion, either grant or deny the motion.” Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky. App. 2004) (internal citations omitted). The trial court’s determination on whether the plea was voluntarily entered is reviewed under the clearly erroneous standard. Id. A decision that is supported by substantial evidence is not clearly erroneous. Id. If, however, the trial court determines that the guilty plea was entered voluntarily, then it may grant or deny the motion to withdraw the plea at its discretion. This decision is reviewed under the abuse of discretion standard. Id. A trial court abuses its discretion when it renders a decision that is arbitrary, unreasonable, unfair, or unsupported by legal principles. Id.
The test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. Sparks v. Commonwealth, 721 S.W.2d 726, 727 (Ky. App. 1986) (citing North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 164, 27 L. Ed. 2d 162 (1970)). There must be an affirmative showing in the record that the plea was intelligently and voluntarily made. Id. (citing Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 1711, 23 L. Ed. 2d 274 (1969)).
Sturgill v. Commonwealth, 533 S.W.3d 204, 208 (Ky. App. 2017).
-3- Imposition of Jail Fees
[I]n order to impose jail fees against a criminal defendant during sentencing, there must be some evidence presented that a jail fee reimbursement policy has been adopted by the county jailer with approval of the county’s governing body in accordance with KRS 441.265(2)(a).
Capstraw v. Commonwealth, 641 S.W.3d 148, 161-62 (Ky. 2022) (footnote
omitted).
ARGUMENTS AND ANALYSIS
Appellant, through counsel, first argues that the Carlisle Circuit Court
erred in failing to grant his motion to withdraw his guilty plea. He asserts that he
felt coerced by his defense counsel and investigator to accept the plea agreement
because they told him that if he did not plead guilty, he would serve the rest of his
life in prison. Appellant also argues that the circuit court did not carry out its duty
to inform him of the rights he was giving up if he entered a guilty plea. He directs
our attention to RCr 8.10, which provides that at any time before judgment the
court may allow a defendant to withdraw a guilty plea. Appellant argues that the
circuit court should have allowed him to withdraw his plea because a proper
Boykin colloquy was not made due to Appellant not being informed of all of the
consequences of the plea. Appellant contends that while the court informed him
that he was giving up the right to a trial, at which point the Commonwealth would
have to prove guilt, he was not informed that he was giving up the right not to
-4- testify against himself; the right to confront witnesses; the right to produce
evidence and witnesses; and the right to appeal. Per Boykin, Appellant contends
that waiver of rights cannot be presumed from a silent record. He seeks an opinion
reversing the circuit court’s denial of his motion to withdraw his guilty plea and
remanding the matter for trial.
On July 7, 2022, the circuit court conducted a hearing on Appellant’s
motion to enter a guilty plea. At the hearing, the court engaged in the Boykin plea
colloquy with Appellant. The court asked Appellant if he wanted to change his
plea to guilty, if he graduated from high school, and, if he could read and write.
Appellant responded in the affirmative to these questions. The court referenced
Appellant’s motion to enter a guilty plea and asked Appellant if he discussed the
agreement and motion with his counsel. The court then asked if he read and
understood the agreement, and if the signature on the motion was made by his
hand. Again, Appellant responded affirmatively.
The court went on to state that the documents in question expressly set
forth Appellant’s rights and that no one could take those rights away from
Appellant; however, that those rights could be voluntarily waived by Appellant if
he so chose in order to plead guilty. The court stated that those rights included, but
were not limited to, the requirement that the Commonwealth prove guilt if the
matter went to trial. Appellant responded “yes, sir” to each inquiry by the court.
-5- The colloquy continued with the court asking Appellant the following:
if he were free of all intoxicants; if he understood what he was doing; if he had all
of the time he needed to discuss the matter with counsel; and if he was satisfied
with counsel’s representation. Appellant responded affirmatively to each question.
Appellant agreed that no one had threatened him or made promises to him to
induce the plea. The court offered more time if Appellant needed further
discussions with his counsel, which Appellant declined. The court then addressed
the terms of the plea and again asked Appellant if he felt rushed or needed more
time. Appellant answered, “no, sir.”
Based on the totality of the record, we conclude that the plea
represented “a voluntary and intelligent choice among the alternative courses of
action open to the defendant.” Sparks, 721 S.W.2d at 727. Further, there is an
“affirmative showing in the record that the plea was intelligently and voluntarily
made.” Id. (citation omitted). Since the plea was intelligently and voluntarily
made, the question then becomes whether the circuit court abused its discretion in
denying the motion. Rigdon, supra. Abuse of discretion is found only where the
decision is arbitrary, unreasonable, unfair, or unsupported by legal principles. Id.
The circuit court’s decision to deny Appellant’s motion to withdraw
his guilty plea did not constitute an abuse of discretion. Appellant had previously
executed another guilty plea, but withdrew it before it was filed with the court.
-6- More important, the record refutes Appellant’s contention that he was coerced into
the plea and was not informed of the rights he was waiving by entering the guilty
plea. Appellant was expressly informed of his rights, and the effect his guilty plea
would have in waiving those rights. Appellant stated in open court that he
understood the guilty plea and the waiver of his rights. He stated that he had
thoroughly discussed the matter with counsel, and he declined the opportunity to
discuss it with her further before entering the plea. The circuit court had discretion
in adjudicating Appellant’s motion to withdraw the plea. Id. We find no basis for
concluding that the circuit court abused this discretion, as the record amply
demonstrates that Appellant’s plea was knowingly and voluntarily entered into.
Thus, we find no error on this issue.
Appellant acknowledges that his argument relating to jail fees is not
preserved for appellant review. He argues, though, that because the imposition of
jail fees is part of the sentencing process, it may be raised for the first time on
appeal per Capstraw, supra. In the alternative, Appellant requests palpable error
review.
The focus of Appellant’s argument on this issue is that per Capstraw,
supra, jail fees cannot be imposed unless some showing is made that the jail had
adopted a jail reimbursement policy. He argues that no such showing was made at
his sentencing; therefore, the imposition of jail fees was improper.
-7- In response, the Commonwealth directs our attention to the October
20, 2022 hearing, wherein Appellant’s counsel discussed the Carlisle County jail
fee and its reimbursement policy with another county jail. We believe this satisfies
the “some evidence” requirement of Capstraw. Thus, assuming arguendo that this
matter is properly raised for the first time on appeal, we conclude that the circuit
court did not err in ordering Appellant to pay jail fees.
CONCLUSION
For the foregoing reasons, we affirm the judgment and sentence of the
Carlisle Circuit Court.
ECKERLE, JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN PART, DISSENTS IN PART, AND FILES SEPARATE OPINION.
TAYLOR, JUDGE, CONCURRING IN PART AND DISSENTING IN PART: I
concur with the majority’s thorough analysis regarding the plea agreement in
affirming the Appellant’s conviction. However, I must respectfully dissent
regarding the order for payment of jail fees by Appellant, as no evidence exists in
the record that a fee reimbursement policy had been adopted by the Carlisle
County jailer and approved by the fiscal court in accordance with KRS 441.265(2).
At minimum, at least “some evidence” must have been presented on this issue
during sentencing which did not occur in this case. Alderson v. Commonwealth,
670 S.W.3d 884, 903 (Ky. 2023). Accordingly, I would vacate and remand this
-8- part of Appellant’s conviction to the circuit court for an evidentiary hearing to
determine whether a reimbursement policy exists. At the hearing, Appellant would
also be given the opportunity to present evidence showing “good cause” why he
should not be required to pay the fees pursuant to KRS 441.265(1).
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Karen Shuff Maurer Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky
Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky
-9-