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 NOT TO BE PUBLISHED OPINION .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 · THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), · THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR,USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY_ COURT OF THIS STATE; HOWEVER, UNPUBLISHED .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 OPINIONS CITED FOR CONSIDERATION BY THE COURT .SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL-BE TENDERED ALO.NG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE . ACTION. RENDERED: SEPTEMBER 28, 2017 NOT TO BE PUBLISHED
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ERIC R. RIVERA- APPELLANT
pN APPEAL .FROM KENTON CIRCUIT COURT v. HONORABLE GREGORY M: BARTLETT, JUDGE NO .. 13-QR-01020
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORA?iDUM OPINION OF THE COURT
AFFIRMING
I. BACKGROUND . A Kenton County Grand Jury.indicted Appellant, Eric Roark Rivera, on
seven charges:. one count of incest, three counts of first-degree s.odomy (victim
under twelve years of age), two counts of first-degree sexual abuse (victim
under tWelve years of age), and orie count of distribution of obscene matter to a
niinor. These charges arose from allegations that Rivera had engaged in
,. multiple sex acts with two of his daughters, eight-year-old Jane and six-year-
old Suzie. I Rivera ultimately accepted a plea agreement, pleading guilty to
incest, sodomy, andsexual abuse. After entering his plea (but before the
1 We have changed the names of all minors in this Opinion to protect their . . privacy .. sentencing hearing) Rivera attempted to .withdraw it based on the. alleged '
deficient performance of his counsel. The trial court denied this motion and
sentenced Rivera to twenty-five years' imprisonment in accordance with the
·plea agreement.·
Rivera now appeals as a matter of right, Ky. Const. §I 10(2)(b), arguing
that his plea was not voluntarily, knowingly, and intelligently made and that
· the trial court abused its discretion in, denying his motion to withdraw the plea.
Further facts will be developed below, as needed for our analysis.
II. ANALYSIS .
.Rivera asserts that the deficient performance of his·counsel in
investigating and relaying information caused time pressures and factual
misunderstandings which rendered his _plea involuntary. Therefore, Rivera
argues that the trial court should have granted his .motion to withdra'Y the
plea.
Ameer Mabjish represented Rivera during the period leading up to his
plea. John Delany later acted as co-:-counsel and trial attorney for Rivera. The
Commonwealth initially offered Rivera a plea deal with a thirty-year sentence: More than a year later, the Commonwealth had no.t revoked the offer, nor had
Rivera accepted it. At that point, the Commonwealth purports it made a verbal
offer.·of a twenty-five-year senten.ce to Mabjish. Rivera testified that Mabjish . ' '
waited several days to inform him of the twenty-five-year offer. By the time .
Rivera knew about the ~ew offer, it was only six days before his trial was slatec;:l
to begin-and only one day before the offer would expire.
2 Rivera ultimately accepted the plea. The trial court held a hearing in
order to leave a record ?f whether Rivera had "a full understanding of what the .
plea connote[d] and of its consequence·." Boykin v. Alabama, 395 U.R 238, 244
(1969). Both Rivera's attorneys, MabJish and Delaney, were present at the·
Boykin hearing. The trial judge conducted a thorough colloquy, making
detailed and repetitious inquiries into Rivera's decision to plead guilty and
pro.bing Rivera's understanding of the consequences of tpe plea.
During the colloquy, Rivera stated under oath that his plea was free and
voluntary. He affirmed that he understood the plea agreement and its
consequences. ~hough he hesitated in giving his answer (as discussed in ·
greater detail below), Rivera stated that his attorneys had met with him for an . . adequate amount of time to discuss and explain the plea and its ramifications.
Rivera confirmed his understanding of the sex offender registry and the
r~qufrements of registering as a: sex offender. He also stated that he
understood that, as a convicted felon, his rights would be restricted. He stated
he was not under the influence of any drags or medications which migp.t·
hamper his ability to make the decision to accept the·plea. - Rivera did have two complaints during the colloquy. First, when the
court asked if he was satisfied with the performance of his attorneys, Rivera
. hesitated slightly before answering in the affirmative. When the trial judge
asked Rivera to explain the hesitation, Rivera stated that he wa:s upset that he
had only met with his attorney on.ce, and that he felt rushed having only had
twenty-four hours to consider the plea. -Rivera was referring to having only a
3 single meeting with his trial attorney, Delany._ However, Rivera confirmed that,,-
he had met with. Mabjish over the course of the case and had spoken to h.im on
the telephone. Rivera affirmed / . his belief that Mabjish had given him sound
and adequate advice as to his chances ·at trial, and that he believed Mabjish
had investigated his case sufficiently. Rivera said, "It's not so much that he
didn't come see me, it's just this last-minute .offer."
At this point, the trial judge asked the Commonwealth if .the deadline on
the plea deal could be extended to give Rivera more time for consideration.
. The Commonwealth dec~ined, as witnesses (including the minor victims) would
be flying in from out of state if Rivera rejected the plea deal and, instead went
to trial. The Commonwealth reasoned that prosecutors need time to prepare
these witnesses for trial. .
. After the Commonwealth declined to extend the deadline, fue trial judge
then asked Rivera how !1e .wished to proceed. Rivera answered, "I already ·
agreed to it, let's move forward." The judge asked Rivera if there was anythin_g
his counsel had left unattended or if there was anything else Rivera needed
from the court pefore entering his plea. Rivera responded that he was entering
the plea of his own volition. Rivera indicated he took his attorneys' word that
all relevant matters had been attended to, and that his attorneys had
discussed everything relev~t to his decision to plead with him. Rivera
·explained to the trial court that he believed the .plea agreement was the best
way to resolve. this case, that he did not wish to face a jury trial, and that the
4 potentia,l for a much harsher sentence was the motivating factor iri his decision ' . to accept the plea.
Rivera did not enter an Alford. plea, though under North Carolina v.
Alford, "An accused may voluntarily, knowingly,_ and understandingly consent ~
to the imposition of a .prison sentence even though he is unwilling to admit
participation in the crime, or even if his guilty plea contains a protestation of /C
innocence, when [the defendant] intelligently concludes that his interests
require a guilty plea and the record strongly evidences guilt." 400 U.S. 25, 25- \
26 (U.S. 1970). Rather, Rivera admitted the factual allegations underlying each
of the offenses to which he pleaded guilty.
· A. The Trial Court Did Not Commit Clear Error in Finding Rivera Entered the Plea Voluntarily. Two weeks after accepting the, plea (but before sentencing), Rivera sent a
letter to the trial court, seeking to revoke his ·guilty plea .. In the letter, Rivera
stated. that he was not guilty of the charges to which he had previously l .plead_ed, and claimed that his attorneys' defit::ient perforinance coerced him into
accepting the plea agreement involuntarily. Rivera claimed that his counsel
had "materially misrepresented key facts and testl.mony that was purported to
·be used for and against [Rivera] in [his] defense." He also claimed tha~ his
access to discovery materials had_ been incomplete at the time of the pl~a.
The tri8.i court held a hearing to consider Rivera's motion to withdraw his
guilty plea, and appointed conflict counsel to.represent Rivera at the hearing.
Rivera asserted three main arguments as to why his plea should be set aside.
5 First, Rivera objected to the twenty-four-hour timeframe he had to consider the
final plea agreement. Second, Rivera claimed his attorneys misrepresented two
key pieces of information to him. ·Third, Rivera complained that Mabjish had·
only had two meetings with him over the course of the year he represented
Rivera.
After the evidentiary hearing, the trial court issued a written order
denying Rivera's request to withdraw his guilty plea. The trial court found that
Rivera ~freely, knowingly, intelligently, and voluntarily entered a plea of guilty."
The Kentucky Rules of Criminal Procedure require a trial court accepting
a plea to determine "that the plea is made voluntarily with understanding of
the nature of the charge." RCr.8.08. Furthermore, 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. Boykin, 395 U.S. at 241-
42. "In cases where the defendant disputes his or her voluntariness, a proper
exercise of this discretion requires trial courts to consider the totality of the .
circumstances surrounding the guilty plea." Brorik v. Commonwealth, 58 '
S.W.3d 482, 486-87 (Ky. 2001).
Though ruling on an RCr 8.10 motion tO withdraw a plea is within the
sound discretion of the tri~ court, a defendant is entitled to a hearing on such
a motion whenever it is alleged that the plea was entered involuntarily. Rodriguez v. Commonwealth, 87 S.W.3d 8, 10 (Ky. 2002); Bronk, 58 S.W.3d at
486; see also Brady v. United States, 397 U.S. 742, 749 (1970). In order to succeed on a motion to withdraw a plea under RCr 8.10, "the
movant must allege with particularity specific facts which, if true, would render
the plea involuntary." Commonwealth v. Pridham, 394 S.W.3d 867, 874 (Ky.
2012). As the Supreme Court of the United States has held:
A plea of guilty entered by one fully aware of the direct consequences, including the actual value of any .commitments made to him by the court,_ prosecutor, or his own counsel, must stand unless 'induced by threats (or p'romises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable proµiises), 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.
Therefore, in determining whether the trial court .erred in denying
Rivera's motion to revoke his plea, we must first determine whether Rivera's
plea was voluntary. "If a guilty plea is found to have been entered
involuntarily, considering the totality of the_ circumstances, a, trial court must
grant a defendant's motion to withdraw the plea. This inquiry is inherently
fact-sensitive, thus this Court reviews such a deterrp~nation for clear ·
error, i.e., whether the determination was supported by substantial evidence."
Edmonds v. Commonwealth, 189 S.W.3d 558, 566 (Ky. 2006) (internal citations
omitted) . .
The question of voluntariness related to the alleged deficiency in counsel
required the trial cm.irt to determine if Rivera had ~ade a proper showing that . . counsel's assistance was ineffective in enabling Rivera to intelligently weigh his .
legal alternatives in de~iding to plead guilty. There are two components to this
analysis:
'· . "(1) that counsel made errors so seriou~ that counsel's performance fell outside the wide range of professiqnally · competent assistance; and (2) that the deficient.performance . . so seriously affected the outcome of the plea process that, but for the errors of counsel, th<:!re is a reason,able probapility that the defendant would not have pleaded guilty, but would have insisted on going to trial."
Bronk, 58 S.W.3d at 486-87 (quoting Sparks v. Commonwealth., 721 S.W.2d '· .
726, 727 (Ky. Ct. App. 1986)) ..
In other words, the trial court's inquiry into allegations of ineffective . . . I . counsel requires the court to determine whether counsel's performance was
below professional standards and "caused the defendant to lose what he
.otherwise wnqld probably have won" and "whether counsel was so thoroughly
ineffective that defeat was snatched from the hands of probable victory." Foley
v. Commonwealth, 17 S.W.3d 878, 884 (Ky. 2000) ..
At the hearing on Rivera's motion to withdraw his plea, Rivera's
arguments of involuntafi.ness all boiled down to his dissati~faction with his
counsel in investigating and relaying information to him·adequately.and in a
timely manner. However, the trial court found Rivera's arguments
unpersuasive. The court found that none of Rivera's assertions, even if taken·
as true, acted to negate the voluntarit:J.ess of his initial plea. .
When the trial court examined Rivera's first assertion (that his counsel
was ineffective because he failed to relay the plea offer to him in a timely
manner-leaving him with only twenty-four hours to decide), the trial court
reviewed the events going back to Rivera's indictment. Rivera conceded that
the Commonwealth had offered him a thirty-year deal more than a year before,.
8 and that he had . discussed that offer with Mabjish . at that time. Given this
prio! offer, the Commonwealth stated it thought twenty-four hours was enough
time for Rivera to consider a better offer of twenty-five years .
. Here, Rivera was faced with a choke on the eve of trial. On one hand, he
could accept a slightly better offer (twenty-five years) than the thirty-year offer . . he had been considering for more than a year. Under that offer, the
Commonwealth would dismiss two counts of first-degree sodomy, one count of
first-degree sexual abuse, and one count of distribution of obscene matter to a
minor. In the alternative, Rivera could go to trial on alLcounts and charges
and, if convicted, face sentences of twenty-years' to life imprisonment on each
Class A felony. No doubt a choice between two harsh alternatives is not a
pleasant choice. However, dissatisfactfon with alternatives available to a
defendant ·does not render the decision involuntary. ~ivera's frustration with
being presented with such a decision was apparent at the Boykin hearing,
however, the choice w~s still Rivera's to make.
Sefore making his decision, Rivera confe1!ed w!th _his cou_nsel for several
hours. He eventually chose to accept the plea agreement rather than face a
. jury trial and a potentially harsher sentence. .In fact, at his Boykin hearing,
Rivera specifically stated that he did .not want to face a jury trial because of the · . .•
likelihood of a lengthier prison sentence. Rivera made a choice between
reasonable alternatives when he chos~ to accept the plea agreement.
. . While it would have been preferable for Rivera's attorney to have told hiin
about the plea .offer earlier, we do not believe this deficiency rendered his plea
9 • I
involuntary. We hold that counsel w.as not "so thoroughly ineffective that defeat was snatched from .the hands of probable victory." Foley, 17 S.W.3d at
884;
Rivera's second assertion concerned two pieces of information he felt his
counsel had failed to share with him. First, Rive:r;_a claimed to have discovered, .
post-plea,· that his sister would have given. testimony at trial that differed from \
what h~ w~s originally told. Second, he asserted there were disc:;repancies
between the summary of Suzie's interview with investigators and the video of
her interview.
First, Rivera argues that when he entered his plea, h_e believed his
sister's testimony would be different th.an what he later discovered it would
have been. As a frame of reference, we note that the .alleged abuse was brought
to light when Jane's grandmother asked the eight-year-old to write a letter to
Jesus about any problems she was having and place it in the Bible. In her
.second letter, Jane alleged that her father had sexually abused.her.
Apparently, when Rivera accepted the plea deal, he believed his,sJster, Kelly
Mounce, would testify that jane's grandmother told Mounce that Jane
independently wrote the letter describing sexual abuse. Rivera claimed that he
later learned through a conversation with Mounce that sh~ would have actually .
testified that Jane's grandmother told Mounce that she had assisted Jane in
drafting the letter. Rivera argued to the trial court that his counsel was
deficient :ln not discovering and informing him of Mounce's actual intended
testimony.
10 During the hearing, Rivera's conflict counsel attempted to play an audio
recording of himself speaking with Mounce on the telephone. ·~he prosecutor
objected to the tape as unauthenticated hearsay, and wondered why Mounce, a·
local resident, had not appeared at the hearing in person. The judge sustained
the prosecutor's objections, and the tape was not played into the rec::ord. . . However, the court did allow Rivera to enter the tape by avowal.
~vera does not argue specifically that this evidentiary ruling was in
error, but rather, that the trial court erred in its ultimate finding that Rivera's
plea was voluntary. However, Rivera's claim concerning the voluntariness of
his plea hinges in part on whether Rivera can prove his trial counsel failed to
properly investigate Jane's note. This phone conversation is the evidence he
offered to support that claim. ·Therefore; we find it necessary to first determine ·
whether the trial court properly excluded the statement as hearsay.
·The statements at issue were not "made by the declarant while testifying
at the trial or hearing," and they were "offered in evidence to prove the truth of
the matter asserted." Therefore, the trial court was correct that the statements
were hearsay. Of course, "[h]earsay is not admissible except as provided. by
[the Kentucky Rules of Evidence] or by rules of the Supreme Court of .
Kentucky." KRE . 802. Here, Rivera's sist,er . was available to testify (or at least
he makes no claim that .she was not available for purposes of the hearsay
rules). Therefore, there is no .need·for this Court to examine the KRE 804
exceptions to the hearsay rule applicable to unavailable witnesses.·
Furthermore, none of the KRE 803 exceptions apply in this case. We hold that
11 · the trial .court did not abuse its discretion by ruling the phone call
inadmissible.
However, even if we were to hold that the trial court abused its discretion
in disallowing tl:ie hearsay testimony, the ultimate result would be the s.ame.
This Court has reviewed the recording,. on which Mounce is speaking to.
Rivera's conflict cou~sel. Therein, Mounce describes a phone conversatiOn
sometime in the fall of 2013 dµririg which she learned for the first time that
Jane's grandmother had prompted Jane to write the. letter and·place it in the
Bible.
In the recording, Mounce told Rivera's conflict counsel that prior to the
2013 phone conversation, she believed the letter had "just been found by a ·
teacher or something." However, during the 2013 call (which she described as
being a speaker-phone conversation) Mounce said she heard Jane's
grandmother say that it was her idea for Jane to write the letter to Jesus.
Mounce clarified that this is what she meant when she indicated that Jane's
grandmother "helped" her with the letter containing allegations of sexual
abuse. Mounce went on to state that her memory of the conversation was
quite vague, but she did affirm that she had the impression that Jane's
grandmother was present when Jane drafted the letter. Mounce offered very
few specific facts in support of her general impressions·.
The second piece of information Rivera asserts he did not possess wJ::i.en
he entered his plea regards a statement given by Rivera's younger daughter
Suzie. Though Rivera was.provided with a summary of Suzie's statement, he
. 12 claims that he was unaware that a video of her statement existed until after
entering his plea. Though the summary and the video are substantially
similar, the summary did not contain a particular statement by Suzie that is on
the video. Specifically, when asked where Rivera's clothes were while the
alleged abuse was taking p~ace, Suzie replied "upstairs." Rivera asserts that
the apartment at issue has no upstairs, and therefore, this inconsistency could
be w:ied for impeachment purposes against the alleged victim. Rivera asserted
that he did not have access to these discovery materials when he pleaded
guilty. . . The factual discrepancies that Rivera asserts in his case are speculative
and collateral to the overall outcome of a potential trial. Rivera has not made a
showing before any court of how these discrepancies would materially alter or
negate the charges against him. Given the nature of these discrepancies it
·cannot be said that Rivera's counsel was so deficient that it "caused the
defendant to lose what he otherwise would probably have won." Foley, 17
S.W.3d at 884.
Fina_~ly, Rivera claims his counsel was ineffective due to the limited
nature of their meetings. This issue was also addressed ' . . in the hearing. . Rivera asserted a general dissatisfaction with Mabjish, who he claimed only visited
him twice and had one telephone conversation with him.- .The prosecutor
pointed out that Mabjish was on record at the Boykin hearing .as saying that he
had conducted all reasonable preparations for trial. Rivera had affirmed the
voluntary and intelligent nature of his plea in the Boykin hearing. He
13 expressed his satisfaction with his counsel, and affirmed that the terms· of the
plea~ and the ramifications of acceptance, had been discussed with him at
length. Rivera affirmed that he understood the charges against him, and the·
legal alternatives available to him at the time. Taking all of this into account,
the trial court found that Rivera's plea was voluntary.
Again, we examine a trial court's findings of fact for clear error. A finding
of fact is clearly erroneous only if it is manifestly ~ . against the great weight . . of the
evidence. Frances v. Frances, 266 S~W.3d 754 (Ky. 2008). We acknowledge
that "the validity of a guilty plea is determined not by reference to some magic . ·
incantation recited at the time it is taken but from the totality of the
circumstances surroundingit." Kotas v. Commonwealth, 565 S.W.2d 445, 447
(Ky. 1978). For this reason, we tum to the legal situation in which Rivera ( .found himself wheµ he chose to enter his plea.
Rivera was facing a jury tri8.I the next week iri" which he. was accused of
sexually abusing his two young daughters. The Commonwealth's witnesses
included Rivera's ex-wife and two minor daughters. His daughters. were
exp~cted to testify in open court about numerous instances of incest, sodomy,
and sexual abuse perpetrated upon the~ by their father. Rivera was in a good
position to know what testimony these witnesses were likely to give, and to
speculate as.to the_ likely effect.this testimony would have on a jury verdict. As
the Supreme· Court of the United States has opined:
Often the decision to plead guilty is heavily influenced by the defendant's appraisal of the prosecution's case against him and by the apparent likeliho9d of securing leniency should a guilty plea be offered and accepted. Considerations like these frequently present 14 im,ponderable questions for which there are no Gertain answers; judgments may be made· that in the light of later· events seem improvident, although they were perfectly sensible at the time." The rule that a plea must be intelligently made .to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision. A defendant.is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his . calculus misapprehended the quality of the State's case.
Brady, 397 U.S. at 756-57 .
Given the weight of the evidence, and the trial court's superior position
from which to weigh that ~vide,nce, we hold the trial court did not comrriit clear
error when it ruled that the Appellant entered his plea "freely, knowingly,
intell!gently, and voluntarily."
B. The Trial Court did not abuse its discretion in denying Rivera's motion to withdraw his guilty plea. "After •\ finding that Appellant's plea was voluntary, a trial court's denial of. . . .
a defendant's motion to withdraw a guilty plea is reviewe~
for abuse of discretion." Edmonds, 189 S.W.3d at 570 (citing Rodriguez, 87 ·
S.W3d at 10). "The test for abuse ofdiscretion is whether the trial judge's
decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
In this case, the trial court held an evidentiary hearing during which .
Rivera had. an opportunity to .relay all relevant information , to the court .
regarding his motion to withdraw his pie~. After careful consideration of the
totality of the circumstances surrounding the guilty plea, the court was
satisfied that the "Defendant freely, knowingly, intelligently, and voluntarily . , entered a plea of guilty." There are no valid grounds to assert that the trial
.15 court's "decision was arbitrarj, unreasonable, unfair, or unsupported by sound
legal pnnciples." English, 993 S.W.2d at 945. Therefore, the trial court did not
abuse its discretion in denying Rivera's motion to withdraw his plea. The court
was operating within its sound legal discretion when it made the determination
that ·Rivera's guilty plea was in fact voluntary, an~, as such, binding on Rivera.
III. CONCLUSION For the foregoing reasons, we affirm Rivera's convictions and
corresponding sentences.
Al~itting. All concur. \ .
COUNSEL FOR APPELLANT:
Robert Chung-Hua Yang Assistant Public Advocate Appellate Division·
COUNSEL FOR APPELLEE:
Andy Beshear Attorney General Of Kentucky
Thomas Allen Van De Rostyne Assisstant Attorney General