RENDERED: NOVEMBER 1, 2018 TO BE PUBLISHED
2017-SC-000005-DG
FREDERICK DORSEY APPELLANT
ON REVIEW FROM COURT OF APPEALS V. CASE NO. 2014-CA-000809-MR JEFFERSON CIRCUIT COURT NO. 09-CR-003446-001
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE HUGHES
AFFIRMING
After denying Frederick Dorsey’s motion to withdraw his guilty plea, the
Jefferson Circuit Court imposed a thirty-five-year prison sentence on Dorsey in
accordance with the plea agreement. Following sentencing, Dorsey filed a pro
se Rule of Criminal Procedure (RCr) 11.42 motion, alleging that he received
ineffective assistance of counsel and was coerced into taking the plea. The trial
court denied Dorsey’s motion and the Court of Appeals affirmed. We granted
discretionary review to determine whether a conflict of interest existed when
Dorsey’s counsel represented him on the motion to withdraw the plea and
whether Dorsey was coerced into entering a guilty plea. Finding neither a
conflict of interest nor coercion, we affirm the Court of Appeals. FACTS AND PROCEDURAL HISTORY
On November 19, 2009, Frederick Dorsey was indicted on four counts of
first-degree robbery and one count each of burglary, receiving stolen property,
being a convicted felon in possession of a firearm, and being a persistent felony
offender. Dorsey, along with a co-defendant, entered the victims’ home and
held the adult victim and two of her children at gunpoint while demanding
money and jewelry. A third child was hiding in a closet and called the police.
The police arrived and discovered Dorsey and the co-defendant still inside the
house and in the process of restraining the victims with duct tape.
On October 5, 2010, Dorsey entered a guilty plea. The trial court
engaged in a lengthy Boykin colloquy to ensure that Dorsey entered his plea
knowingly, voluntarily, and intelligently. Boykin v. Alabama, 395 U.S. 238, 89
S. Ct. 1709 (1969). Notably, the trial court asked Dorsey if he had had enough
time to talk with counsel and was satisfied with counsel’s advice, to which he
responded in the affirmative. The trial court also asked Dorsey if there was
anything about the proceedings that he did not understand and whether he
had any questions for the court or his counsel. Dorsey responded “no,” and
further stated that he was not coerced or threatened to enter a guilty plea. The
trial court found Dorsey’s plea was made knowingly, voluntarily, and
intelligently.
Shortly after entering the guilty plea, Dorsey contacted counsel and
requested that he file a motion asking the judge to change his sentence to
provide for parole eligibility after he served 20 percent of the thirty-five-year
2 sentence. Counsel informed Dorsey that the judge did not have the authority
to make such a change. Dorsey then informed counsel that he wanted to
withdraw his plea based on this misunderstanding. Counsel filed the motion,
which stated that at the time Dorsey entered his plea, he was under the
impression that the trial judge had the authority to change his parole eligibility
from 85 percent time served to 20 percent.
Dorsey’s motion was scheduled for the October 25, 2010 motion hour.
When Dorsey’s case was called, counsel informed the trial court that it was
Dorsey’s motion to withdraw his plea and that it was against counsel’s advice.
Counsel also told the trial court that he felt an obligation to file the motion on
Dorsey’s behalf because it was what Dorsey wanted to do. Since Dorsey was
not present at the motion hour, the trial judge informed counsel that he would
hear what Dorsey had to say at sentencing on November 18, 2010.
At sentencing, the trial court addressed Dorsey’s motion to withdraw his
guilty plea, noting that the issue came down to whether the plea was knowingly
and voluntarily entered. In response to the motion, the Commonwealth stated
that it found it impossible to believe that parole eligibility did not come up in
conversations between Dorsey and his counsel, given the extended discussions
on plea offers between the Commonwealth and the defense. The
Commonwealth also noted the overwhelming evidence against Dorsey, who, as
noted, was apprehended in the victims’ home.
The judge first asked Dorsey’s counsel whether Dorsey was claiming
ineffective assistance of counsel, to which counsel responded that the motion
3 was not made under RCr 11.42. Interrupting counsel’s response, the judge
stated that he was not referring to RCr 11.42 specifically, but that part of
determining whether Dorsey could withdraw his plea involved whether or not
he received ineffective assistance. Counsel stated that ineffective assistance
was not part of the motion and that the reasoning behind the motion was
simply that Dorsey did not understand the consequences of the plea. When
the judge inquired about why Dorsey did not understand the consequences,
defense counsel responded that he did not know, but that, as Dorsey’s
attorney, he could state his recollection of their conversations. Counsel
suggested that the court could hear directly from Dorsey. The trial judge then
indicated that he needed to hear from both, meaning Dorsey and counsel.
At that point, the trial judge placed Dorsey’s counsel under oath and
questioned him. Counsel stated his recollection was that he informed Dorsey
that first-degree robbery is an 85 percent crime, i.e., a defendant must serve 85
percent of his sentence before being parole eligible. According to counsel,
Dorsey did not ask him whether the judge could change parole eligibility after
the plea. The judge then asked counsel whether he gave Dorsey the impression
that the judge could change parole eligibility and counsel stated that he gave
no such impression. Counsel stated that his responses were based on his
recollections, and that “we can certainly hear [Dorsey’s] recollection as well.”
The trial judge then engaged in the following questioning with Dorsey before
denying the motion:
Judge: You heard [counsel] say that he never told you that the judge could change the plea and make you eligible for 4 parole. Are you saying it’s your understanding that you thought that the judge could reduce your 85 percent parole eligibility to 20 percent? Is that what your testimony is?
Dorsey: Yes sir. Judge: What was that based on, Mr. Dorsey? Dorsey: Just thought it was up to the judge. Judge: To reduce the amount of the plea? Of the parole eligibility?
Dorsey: Yes sir. Judge: Well now you heard [counsel] tell you that it was going to be 85 percent — did he — are you saying he didn’t tell you that?
Dorsey: No, he told me. Judge: Okay. Well why would you think the judge could reduce it?
Dorsey: You’re the judge. Judge: Is there any other reason you thought the judge could reduce it? Dorsey: (No audible response by Dorsey) Judge: Okay. Any other comments you wish to make, Mr. Dorsey, with respect to this? Dorsey: No sir. Judge: Alright...Do you remember when you went through the questions I asked you at the time of your guilty plea about whether you had enough time to talk to your attorney and whether you — uh — everything had been fully explained to you . . . remember I asked you those questions?
Dorsey: Yes sir. Judge: Okay. Well, the court is going to find that the plea was voluntarily, knowingly, intelligently, voluntarily entered despite the fact that Mr. Dorsey now testifies that he had a different understanding, but there’s no evidence that
5 he’s been able to put forward for the basis for having a different understanding. The court is not going to allow withdrawal of the plea at this time; it’s gonna find that it was knowingly, intelligently, voluntarily entered. And there is no indication that there was any ineffective assistance of counsel in the plea portion and no one is claiming that. So, Mr. Dorsey you’re gonna be required to stick to your plea that you entered into at that time.
The trial court sentenced Dorsey to thirty-five years in prison as agreed to in
the plea agreement.1
On July 30, 2012, Dorsey filed his pro se RCr 11.42 motion to alter,
amend, or vacate the judgment, arguing: (1) the trial court should not have
accepted his guilty plea without first holding a competency hearing; (2) counsel
coerced him into a guilty plea that was not made knowingly, voluntarily, and
intelligently; (3) he was denied counsel at a “critical stage of the proceedings”
by “government intrusion into the attorney-client privilege”; (4) trial counsel
was ineffective for failing to hire an independent psychiatrist to inquire about
his competency; and (5) the dual representation by the public defender’s office
created a conflict of interest.
The Commonwealth’s response stated that Dorsey had been evaluated by
the Kentucky Correctional Psychiatric Center (KCPC) pursuant to a February 1,
2010 court order for a competency evaluation. The KCPC evaluation reflected
that Dorsey was competent to stand trial, and Dorsey’s counsel stipulated to
1 As the Commonwealth noted in an earlier appearance in the case, Dorsey faced a potential 70-year sentence if he was convicted on all counts, the persistent felony offender charge having been dismissed due to Dorsey’s age.
6 competency at a March 31, 2010 hearing. The Commonwealth also highlighted
the extensive Boykin colloquy by the trial court before accepting the plea.
The trial court appointed the Department of Public Advocacy (DPA) to
represent Dorsey on the RCr 11.42 motion. However, on April 22, 2013, the
DPA sought to withdraw as counsel, stating that after reviewing the record, the
DPA determined that the post-conviction proceeding “. . .is not a proceeding
that a reasonable person with adequate means would be willing to bring at his
or her own expense . . . .” Kentucky Revised Statute (KRS) 31.110(2)(c). The
trial court denied the RCr 11.42 motion without a hearing, finding that
Dorsey’s allegations of ineffective assistance could be resolved based on the
record.
Dorsey appealed to the Court of Appeals, which issued its first opinion
affirming the trial court on October 9, 2015. This Court granted Dorsey’s
motion for discretionary review, but we ultimately remanded the case to the
Court of Appeals for further consideration in light of Commonwealth v. Tigue.
459 S.W.3d 372 (Ky. 2015).2
On remand, the Court of Appeals determined that the first and third
arguments outlined above were impermissibly brought under RCr 11.42 and
therefore were properly dismissed by the trial court.3 Additionally, Dorsey’s
2 The two Court of Appeals’ opinions are largely identical, with the second opinion including an analysis of Dorsey’s claims in light of Tigue. This opinion discusses both Court of Appeals’ opinions. 3 Dorsey’s allegations that the trial court erred in failing to hold a competency hearing prior to accepting his guilty plea, and that he was denied counsel by “government intrusion into the attorney-client privilege” are allegations of errors committed by the trial court. RCr 11.42 does not authorize relief from judgment for 7 arguments that counsel failed to adequately investigate his competency and
that a conflict arose from the public defender’s dual representation of him and
his co-defendant were clearly refuted by the record.4 Therefore, most of the
Court of Appeals’ second opinion focused on Dorsey’s claim of coercion.
Focusing on the trial court’s plea colloquy and the fact that Dorsey’s motion to
withdraw his plea made no allegations of coercion, the Court of Appeals again
affirmed the trial court.
On discretionary review of the second appellate opinion, the only two
issues before us are whether Dorsey’s counsel had a conflict of interest with his
client at the hearing on the motion to withdraw the plea and whether Dorsey
was coerced to enter the plea. Having carefully reviewed the record, we
conclude that it does not support either of Dorsey’s arguments.
ANALYSIS
I. Dorsey Was Not Denied Counsel During a Critical Stage of the Proceedings.
Dorsey argues that he was denied counsel at a critical stage of the
proceedings — the motion to withdraw his guilty plea — because his counsel
represented him while under a conflict of interest. Although there is no doubt
that seeking to withdraw a guilty plea constitutes a critical stage in the
mere errors of the trial court; “[i]n order for the rule to be invoked there must be a violation of a constitutional right, a lack of jurisdiction, or such violation of statute as to make the judgment void and therefore subject to collateral attack.” Thompson v. Commonwealth, 177 S.W.3d 782, 785 (Ky. 2005) (quoting Tipton u. Commonwealth, 376 S.W.2d 290 (Ky. 1963)). 4 A waiver of dual representation pursuant to RCr 8.30(1) signed by “Fred Dorsey” on January 14, 2010, appears in the record.
8 proceedings, Dorsey did have competent representation during the hearing to
withdraw his guilty plea and counsel was not placed at odds with representing
Dorsey’s interests, i.e., he was not laboring under a conflict.
This Court has recently analyzed a defendant’s right to conflict-free
counsel when seeking to withdraw a guilty plea in both Tigue and Zapata v.
Commonwealth. 516 S.W.3d 799 (Ky. 2017). Although this Court found clear
conflicts of interest in both cases, the factual scenarios in Tigue and Zapata are
plainly distinguishable from Dorsey’s case.
In Tigue, soon after pleading guilty Tigue called his family and counsel to
tell them he wanted to withdraw his plea. 459 S.W.3d at 380. In the following
weeks, Tigue repeatedly attempted to contact counsel, but counsel never
acknowledged his requests and did not file a motion to withdraw the plea on
Tigue’s behalf prior to sentencing. Id. During the sentencing hearing, Tigue
orally asked the trial court to withdraw his plea, stating that his plea was false
and involuntary. Id. at 381. Since there was no motion filed by counsel, Tigue
proceeded pro se but failed to provide sufficient legal grounds for withdrawal of
the plea. Id. The trial court denied the request. Id.
On appeal, this Court held that “Tigue’s right to counsel was violated
when his counsel refused to help him seek to withdraw his plea . . . .” Id. at
382. This important factor distinguishes Tigue from Dorsey’s case. Unlike in
Tigue, Dorsey’s counsel filed the motion on his behalf. Counsel discussed the
motion to withdraw the plea with Dorsey, prepared and filed it, and then
participated in the hearing on the motion. Whereas Tigue was forced to
9 proceed pro se, Dorsey had counsel assisting him throughout the process.
Although a “pre-judgment proceeding at which a defendant seeks to withdraw
his guilty plea is a critical stage of the proceedings at which he is entitled to the
assistance of counsel[,]” Dorsey, unlike Tigue, was not deprived of this
constitutional right. Id.
Further, Tigue alleged that he was coerced and manipulated into making
his guilty plea by his defense team because they refused to prepare a defense
for him, thus forcing him to plead guilty. Id. at 387. At the hearing on his oral
motion to withdraw his plea, Tigue claimed that he was threatened and that
counsel “never showed any interest in defending [him],” which is an allegation
of ineffective assistance. Id. This Court considered these hearing statements
in tandem with letters Tigue and his family sent to the trial court containing
details of alleged misconduct by counsel. Id. In Dorsey’s case, it was the trial
court, not Dorsey or his counsel, that introduced the idea of a potential
ineffective assistance claim at the hearing to withdraw the plea. Further,
Dorsey did not bring an ineffective assistance claim until after he was
sentenced. Dorsey had full opportunity, both during the Boykin colloquy and
during the hearing on his motion to withdraw the plea, to inform the court that
he was coerced into his plea or that he received ineffective assistance, but he
did not make either of those allegations. During the hearing on the motion, the
trial court asked Dorsey if he had any other comments to make regarding his
desire to withdraw the plea and he did not.
10 While this Court recognized in Tigue that a claim of coercion during a
plea withdrawal hearing places counsel in a position where he has to defend
himself or contradict his client in open court, this simply is not the case for
Dorsey. Id at 387. In response to the trial court’s questions, Tigue’s counsel
stated he believed the evidence in Tigue’s case was “rather overwhelming” and
that he discussed his recommendation to take the plea with Tigue and his
family numerous times. Id. at 388. This Court held that in making these
responses, counsel “put his own interests ahead of his client’s by denying the
truth of Tigue’s allegations and thereby attacking his own client’s credibilityf,]”
which created an actual conflict of interest. Id. Here, Dorsey’s counsel did not
put his own interests ahead of his client’s and did not attack Dorsey’s
credibility. Dorsey was not accusing his attorney of making misrepresentations
or neglecting to tell him critical information regarding the plea. Instead, as
Dorsey informed the trial court, he was confused about the judge’s role (more
accurately, absence of a role) in parole eligibility. Dorsey’s counsel testified
that he always informed Dorsey that the crime he was pleading to is an 85
percent crime, and Dorsey agreed that was what he was told. Counsel did not
create a conflict of interest through his answers to the court’s questions; he
appropriately presented the motion to withdraw as based on Dorsey’s lack of
understanding about the consequences of the plea.
While we do not agree with the trial court’s decision to take sworn
testimony from Dorsey’s counsel, we fail to see a discernible conflict of interest.
At the earlier October motion hour, Dorsey’s counsel informed the trial court
11 that the motion to withdraw the plea was Dorsey’s own motion and made
against counsel’s advice. During sentencing, after hearing preliminary remarks
from counsel, the trial court could have just as easily started by questioning
Dorsey about his motion and why he felt he should be permitted to withdraw
his plea. Potentially, that questioning would have been sufficient to resolve the
matter but, in any event, it was not necessary to place defense counsel under
oath immediately and take testimony. The trial court should have first
questioned counsel as an officer of the court, and counsel would have been
required to answer truthfully under Supreme Court Rule 3.130(3.3), which
requires candor toward the tribunal. If, as the proceeding evolved, the trial
court believed there was a need for sworn testimony, the court could have
taken testimony accordingly. The judge ultimately elicited the same testimony
from Dorsey and counsel — that the motion was based on a misunderstanding
as to the role of the trial court and not based on anything counsel did or did
not tell Dorsey. Regardless of the trial court’s unfortunate decision to elicit
sworn testimony from counsel first, Dorsey’s interests were not pitted against
counsel’s interests and therefore no conflict existed.
Dorsey’s case is also distinguishable from Zapata. 516 S.W.3d at 799.
In Zapata, the trial court granted Zapata’s request to act as hybrid counsel. Id.
at 800. Prior to trial, Zapata entered an Alford plea and the trial court
conducted a proper Boykin colloquy. Id. Before sentencing, Zapata’s counsel
filed a motion to withdraw the plea, indicating that “undersigned counsel takes
no position on this motion.” Id. at 801. Zapata filed an additional motion to
12 withdraw his plea and requested an evidentiary hearing. Id. The trial court
conducted a hearing but did not take sworn testimony or allow Zapata to
present evidence. Id. Zapata argued that his plea was involuntary and that
“counsel deceived him when she informed him he could withdraw his plea any
time before sentencing with ‘no problem ....’” Id.
This Court held that an actual conflict existed in Zapata’s case and that
Zapata was deprived of his right to counsel during this critical stage in the
proceedings. Id. at 803. “Zapata’s counsel was placed in the untenable
position of defending her own interests which were adverse to her client’s.” Id.
Similar to Tigue, “to argue in favor of her client’s motion would require
admitting serious ethical violations and possibly subject her to liability for
malpractice; on the other hand, any contention by counsel that defendant's
allegations were not true would . . . contradict her client.” Id. As with Tigue,
the facts in Zapata are distinguishable from the present case.
Zapata’s motion to withdraw his plea was premised on his counsel’s
alleged deception, and his counsel readily acknowledged that Zapata’s
allegations against her “put her in an awkward position.” Id. at 801. Zapata
claimed ineffective assistance, whereas Dorsey claimed a misunderstanding
which he never attributed to his counsel. Dorsey, moreover, provided no basis
for his misunderstanding and admitted, under oath, that counsel told him,
accurately, the crime was an 85 percent crime.
Counsel was not placed at odds with his client in representing Dorsey on
his motion to withdraw the plea because the motion was based entirely on
13 Dorsey’s own misunderstanding of the trial court’s role in determining parole
eligibility. Again, Dorsey did not make allegations that counsel failed to explain
the 85 percent parole eligibility requirement; he merely stated that he thought
the judge could change the requirement. When asked by the court, counsel
stated that Dorsey never asked him if the trial judge had the authority to
reduce the minimum amount of time served and there was no discussion of
that “possibility.” Dorsey offered no basis for his belief. Given that Dorsey’s
reason for wanting to withdraw his plea was a simple misunderstanding,
counsel advocated for Dorsey’s position as effectively as he could by
communicating this position to the trial court. Simply put, counsel offered all
the assistance he could to help Dorsey accomplish his objective and he was
never at odds with Dorsey on the motion to withdraw the plea.
Unlike Zapata, Dorsey’s counsel was not placed in a situation where he
had to defend his client while also serving as a witness on behalf of the plea
that he negotiated. Counsel never had to defend his advice to Dorsey or
potentially admit to ethical violations. No conflict of interest arose in these
circumstances.
To succeed on an ineffective assistance claim, a defendant must show:
(1) that counsel’s performance was deficient, and (2) “that the deficient
performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668,
687 (1984). In Tigue, this Court held that “some circumstances are so
inherently prejudicial that they give rise to a per se violation of the right to
counsel without the need to prove actual prejudice.” 459 S.W.3d at 384. In
14 this case, Dorsey did not experience a violation of his right to counsel, and
certainly not a per se violation, because his counsel did not have any personal
adverse interests at the time Dorsey sought to withdraw the plea.
II. There Is No Evidence that Dorsey’s Counsel Coerced Him into Accepting the Guilty Plea.
In support of his claim of coercion in his subsequent RCr 11.42 motion,
Dorsey stated that counsel was aware that he is “not smart,” has a low IQ, and
was found to be mildly mentally retarded “on more than one occasion.” He
then stated that counsel had Dorsey’s mother come into the attorney room on
the morning of trial and that she and counsel together “virtually twisted
Dorsey’s arm” and forced him to plead guilty. However, Dorsey’s testimony
during the Boykin colloquy refutes any allegations of coercion.
During the plea hearing, Dorsey affirmed that he had enough time to talk
to his attorney, was satisfied with the advice given, and that he was not under
any coercion or threats that induced him to plead guilty — he was pleading
guilty of his own free will. Further, the trial court asked Dorsey if there was
anything about the proceedings he did not understand, and he replied “no.”
Dorsey also said he did not have any questions for the court or counsel. These
“[s]olemn declarations in open court carry a strong presumption of verity.”
Edmonds v. Commonwealth, 189 S.W.3d 558, 569 (Ky. 2006).
It was not until after sentencing that Dorsey alleged coercion, insisting
that counsel got his mother to visit him on the morning of trial to pressure him
to accept the plea deal. However, strong encouragement by family members *
does not rise to the level of coercion. “Advice even strong urging by those who 15 have an accused’s welfare at heart. . . does not constitute undue coercion.”
Lunz v. Henderson, 533 F.2d 1322, 1327 (2d Cir. 1976). See also Iaea v. Sunn,
800 F.2d 86, 867 (9th Cir. 1986) (“Mere advice or strong urging by third parties
to plead guilty based on the strength of the state’s case does not constitute
undue coercion.”); United States ex rel. Brown v. Lavellee, 424 F.2d. 457 (2d
Cir. 1970) (No coercion where defendant’s mother made him consider the
effects that a conviction would have on his family; while the statements may
have been coercive coming from a judge or prosecutor, coming from defendant’s
lawyers and mother the statements were sound advice.). While familial
pressure may influence a defendant’s decision to plead guilty, “this pressure
does not imply undue coercion such that the plea was involuntary.” United
States v. White, 610 Fed. Appx. 579, 582 (8th Cir. 2015). Dorsey’s mother may
have encouraged Dorsey to accept the plea deal, but her influence does not
constitute coercion.
As noted, the Commonwealth had strong evidence against Dorsey given
that police officers caught him during his commission of the crime, and
extensive plea negotiations preceded Dorsey’s plea. The record simply does not
suggest that Dorsey was coerced into accepting the plea, and Dorsey has not
provided any persuasive basis for his allegation.
CONCLUSION
Although the trial court mishandled the hearing on Dorsey’s motion to
withdraw his plea by quickly placing counsel under oath and hearing sworn
testimony, the elicited information was ultimately the same information
16 provided by Dorsey himself and did not contradict Dorsey’s sole contention that
he misunderstood the role of the trial judge. The trial court could have reached
the same result by questioning Dorsey first, since the trial court knew it was
Dorsey’s own motion and against counsel’s advice. Regardless, no conflict of
interest occurred between Dorsey and his counsel at the hearing on the
motion. Moreover, on the RCr 11.42 allegations, the record does not support
Dorsey’s claim that he was coerced into entering a guilty plea. For the
foregoing reasons, we affirm the Court of Appeals.
All sitting. Minton, C.J.; Cunningham, Keller, and VanMeter, JJ.,
concur. Wright, J., dissents by separate opinion, which Venters, J., joins.
WRIGHT, J., DISSENTING: The Sixth Amendment provides that a
criminal defendant shall have the right to the “Assistance of Counsel for his
defence.” U.S. Const, amend. VI. This right includes “the right to effective
assistance of counsel,” Strickland v. Washington, 466 U.S. 668, 686 (1984), and
effective assistance “includes the right to representation free from conflicts of
interest.” Rubin v. Gee, 292 F.3d 396, 401 (4th Cir. 2002) [citing Cuyler v.
Sullivan, 446 U.S. 335, 348-50 (1980); Wood v. Georgia, 450 U.S. 261, 271
(1981)). Section 11 of the Kentucky Constitution also addresses this issue,
stating: “[i]n all criminal prosecutions the accused has the right to be heard by
himself and counsel . . . .”
As the Supreme Court of the United States noted in Gideon v.
Wainwright, “[t]he right of one charged with crime to counsel may not be
deemed fundamental and essential to fair trials in some countries, but it is in
17 ours.” 372 U.S. 335, 344 (1963). Today, the majority strips this fundamental
right from Dorsey at what this Court has deemed a critical stage of his trial.
Commonwealth v. Tigue, 459 S.W.3d 372, 382 (Ky. 2015) (“[A] pre-judgment
proceeding at which a defendant seeks to withdraw his guilty plea is a critical
stage of the proceedings at which he is entitled to the assistance of counsel.”).
The majority makes much ado about the fact that “counsel offered all the
assistance he could to help Dorsey accomplish his objective.” While I agree
that counsel offered Dorsey “all the assistance he could,” I do not believe this
assistance was adequate. Clearly, while Dorsey’s counsel was on the stand
giving testimony, it left his client without representation. What the trial judge
elicited during his questioning of counsel is immaterial to the violation of
Dorsey’s fundamental right to counsel at this critical stage of trial. We have no
idea what may have come to light had Dorsey been represented during his
attorney’s testimony.
The United States Supreme Court set out the requirements for an
accused to represent himself at trial in Faretta v. California, 422 U.S. 806, 835
(1975) (“In order to represent himself, the accused must ‘knowingly and
intelligently’ forgo those relinquished benefits .... Although a defendant need
not himself have the skill and experience of a lawyer in order competently and
intelligently to choose self-representation, he should be made aware of the
dangers and disadvantages of self-representation, so that the record will
establish that he knows what he is doing and his choice is made with eyes
open.” (internal citations and quotation marks omitted)). Here, Dorsey never
18 asked to represent himself—and the trial court conducted no such Faretta
colloquy to determine if he was competent to do so. Yet, it left him wholly
without counsel at a critical stage of trial.
Denying a defendant representation at a critical stage of trial (such as
happened here) results in structural error and cannot be deemed harmless.
As this Court recently explained,
the defining feature of a structural error is that it ‘affect[s] the framework within which the trial proceeds,’ rather than being ‘simply an error in the trial process itself.’ For the same reason, a structural error ‘def[ies] analysis by harmless error standards.”’ Weaver v. Massachusetts, — U.S.-----, 137 S.Ct. 1899, 1907-08, 198 L.Ed.2d 420 (2017) (internal citations omitted).
Commonwealth v. Douglas, 553 S.W.3d 795, 799-800 (Ky. 2018). Therefore,
“[sjtructural defects in the constitution of the trial mechanism require
automatic reversal.” King v. Commonwealth, 374 S.W.3d 281, 295 (Ky. 2012)
(internal brackets, citations, and quotation marks omitted). Thus, to the
nature of the error, and regardless of the brevity of Dorsey’s counsel’s
testimony, this error requires reversal.
As the United States Supreme Court stated in Gideon-.
From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. A defendant’s need for a lawyer is nowhere better stated than in the moving words of Mr. Justice Sutherland in Powell v. Alabama:
The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill
19 in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.’ 287 U.S., at 68- 69.
372 U.S. 335, 344-45 (1963).
Here, Dorsey’s right to be heard was rendered “of little avail” when he
was denied the right to have conflict-free counsel during his attorney’s
testimony at a critical stage of his trial. Dorsey lacked “both the skill and
knowledge adequately” to elicit testimony from either his attorney or himself at
his plea withdrawal hearing. Therefore, I strongly dissent from the majority’s
affirmance of the Court of Appeals.
Venters, J., joins.
20 APPELLANT:
Frederick Dorsey, Pro se Eastern Kentucky Correctional Complex
COUNSEL FOR APPELLEE:
Andy Beshear Attorney General of Kentucky
Kenneth Wayne Riggs Mark Barry Taylor Allen Payne Assistant Attorneys General Office of Criminal Appeals