RENDERED: SEPTEMBER 26, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0704-MR
GARY DEAN ADAMS APPELLANT
APPEAL FROM LETCHER CIRCUIT COURT v. HONORABLE JAMES W. CRAFT, II, JUDGE ACTION NO. 22-CR-00058
COMMONWEALTH OF KENTUCKY APPELLEE
AND
NO. 2024-CA-0705-MR
APPEAL FROM LETCHER CIRCUIT COURT v. HONORABLE JAMES W. CRAFT, II, JUDGE ACTION NO. 22-CR-00059
NO. 2024-CA-0706-MR
GARY DEAN ADAMS APPELLANT APPEAL FROM LETCHER CIRCUIT COURT v. HONORABLE JAMES W. CRAFT, II, JUDGE ACTION NO. 22-CR-00060
NO. 2024-CA-0707-MR
APPEAL FROM LETCHER CIRCUIT COURT v. HONORABLE JAMES W. CRAFT, II, JUDGE ACTION NO. 22-CR-00061
NO. 2024-CA-0708-MR
APPEAL FROM LETCHER CIRCUIT COURT v. HONORABLE JAMES W. CRAFT, II, JUDGE ACTION NO. 22-CR-00062
-2- AND
NO. 2024-CA-0709-MR
APPEAL FROM LETCHER CIRCUIT COURT v. HONORABLE JAMES W. CRAFT, II, JUDGE ACTION NO. 22-CR-00063
NO. 2024-CA-0710-MR
APPEAL FROM LETCHER CIRCUIT COURT v. HONORABLE JAMES W. CRAFT, II, JUDGE ACTION NO. 22-CR-00064
NO. 2024-CA-0711-MR
-3- APPEAL FROM LETCHER CIRCUIT COURT v. HONORABLE JAMES W. CRAFT, II, JUDGE ACTION NO. 22-CR-00065
NO. 2024-CA-0712-MR
APPEAL FROM LETCHER CIRCUIT COURT v. HONORABLE JAMES W. CRAFT, II, JUDGE ACTION NO. 22-CR-00068
OPINION VACATING AND REMANDING
** ** ** ** **
BEFORE: EASTON, A. JONES, AND LAMBERT, JUDGES.
LAMBERT, JUDGE: In these consolidated criminal matters,1 Gary Dean Adams
appeals from the judgments of the Letcher Circuit Court convicting him of a
1 This Court consolidated the nine appeals for all purposes by order entered September 30, 2024.
-4- multitude of felony charges pursuant to a plea agreement and sentencing him to
concurrent sentences totaling ten years. Adams seeks review of the trial court’s
denial of his oral motion to withdraw his guilty pleas at the sentencing hearing
without permitting him to file a written motion or appointing conflict counsel.
Because we hold that the trial court did not have sufficient information to properly
evaluate the motion, we vacate and remand.
On April 5, 2022, the Letcher County grand jury charged Adams with
multiple felonies in 11 separate indictments; these appeals involve the charges in
nine of these indictments,2 which we shall summarize below:
Circuit Court Case Date of Offense/s Charges Number and Appeal Number No. 22-CR-00058 April 2015 One count of First-Degree No. 2024-CA-0704- Sexual Abuse of A.H., a MR female who was less than 16 years while he was 21 years old or more (Kentucky Revised Statutes (KRS) 510.110(1)(a)) (Class D Felony) No. 22-CR-00059 May 2015 through Four counts of First- No. 2024-CA-0705- December 2015 Degree Sexual Abuse of MR A.H., a female who was less than 16 years while he was 21 years old or more (KRS 510.110(1)(a)) (Class D Felony)
2 The remaining two indictments (Nos. 22-CR-00066 and 22-CR-00067) were dismissed pursuant to the plea agreement.
-5- No. 22-CR-00060 January 2016 through Twelve counts of First- No. 2024-CA-0706- December 2016 Degree Sexual Abuse of MR A.H., a female who was less than 16 years while he was 21 years old or more (KRS 510.110(1)(a)) (Class D Felony) No. 22-CR-00061 January 2017 through Twelve counts of First- No. 2024-CA-0707- December 2017 Degree Sexual Abuse of MR A.H., a female who was less than 16 years while he was 21 years old or more (KRS 510.110(1)(a)) (Class D Felony) No. 22-CR-00062 January 2018 through Twelve counts of First- No. 2024-CA-0708- December 2018 Degree Sexual Abuse of MR A.H., a female who was less than 16 years while he was 21 years old or more (KRS 510.110(1)(a)) (Class D Felony) No. 22-CR-00063 January 2019 Twelve counts of First- No. 2024-CA-0709- Degree Sexual Abuse of MR A.H., a female who was less than 16 years while he was 21 years old or more (KRS 510.110(1)(a)) (Class D Felony)
Twelve counts of First- Degree Sodomy of A.H. (KRS 510.070) (Class B Felony)
Twelve counts of Unlawful Use of an Electronic Device to Induce Minor (A.H.) to Engage in Sexual or Prohibited Activities (KRS
-6- 510.155(1)) (Class D Felony) No. 22-CR-00064 January 2020 Twelve counts of First- No. 2024-CA-0710- Degree Sexual Abuse of MR A.H., a female who was less than 16 years while he was 21 years old or more (KRS 510.110(1)(a)) (Class D Felony)
Twelve counts of First- Degree Sodomy of A.H. (KRS 510.070) (Class B Felony)
Twelve counts of Unlawful Use of an Electronic Device to Induce Minor (A.H.) to Engage in Sexual or Prohibited Activities (KRS 510.155(1)) (Class D Felony)
Twelve counts of First- Degree Rape of A.H. (KRS 510.040(1)(a)) (Class B Felony) No. 22-CR-00065 February 2019 through Twelve counts of First- No. 2024-CA-0711- December 2019 Degree Sexual Abuse of MR A.H., a female who was less than 16 years while he was 21 years old or more (KRS 510.110(1)(a)) (Class D Felony)
Twelve counts of First- Degree Sodomy of A.H. (KRS 510.070) (Class B Felony)
-7- Twelve counts of Unlawful Use of an Electronic Device to Induce a Minor to Engage in Sexual or Prohibited Activities (KRS 510.155(1)) (Class D Felony) No. 22-CR-00068 July 2013 through Six counts of First-Degree No. 2024-CA-0712- December 2013 Sexual Abuse of S., a MR female who was less than 16 years while he was 21 years old or more (KRS 510.110(1)(a)) (Class D Felony)
Six counts of First-Degree Sodomy of S. (KRS 510.070) (Class B Felony)
Six counts of Unlawful Use of an Electronic Device to Induce Minor (S.) to Engage in Sexual or Prohibited Activities (KRS 510.155(1)) (Class D Felony)
Six counts of First-Degree Rape of S. (KRS 510.040(1)(a)) (Class B Felony)
The sexual abuse and unlawful use of an electronic device charges carried a
sentence range of one to five years’ imprisonment, and the rape and sodomy
charges carried a range of 10 to 20 years’ imprisonment.
-8- Adams, while represented by attorney Donald Kyle Deskins,3 entered
not guilty pleas in each case at his arraignment on April 27, 2022. The trial court
held and rescheduled numerous pretrial conferences after that date, where the
parties discussed the voluminous discovery and that plea negotiations were taking
place. In 2023, attorney Gerald DeRossett began representing Adams. The court
eventually scheduled a jury trial for January 2024 and consolidated the cases for
purposes of trial.
On January 3, 2024, days prior to the scheduled trial, Adams, through
counsel, moved the court to enter guilty pleas to the above charges based upon the
Commonwealth’s offers. In exchange for his pleas, Adams would receive one-year
sentences for the sexual abuse and unlawful use of an electronic device charges
and ten-year sentences for the sodomy and rape charges, which would all run
concurrently for a total sentence of ten years.
The trial court held a guilty plea hearing on January 4, 2024. The
court first went over the constitutional rights Adams would be giving up by
entering into the guilty pleas. It then asked about his education level (high school),
whether he was under the influence of alcohol, narcotics, or drugs, or in any way
impaired in his judgment (Adams denied this), or whether he had been treated for
3 According to footnote 11 in Adams’s brief, Attorney Deskins was indicted in August 2023 for the alleged murder of his wife.
-9- mental illness (Adams also denied this). The court then conducted a Boykin4
colloquy with both Adams and Attorney DeRossett. Adams stated that he had had
an opportunity to talk with his attorney about the entry of the plea, he had enough
time to talk privately with counsel, he was satisfied with the work counsel had
done on his behalf, and he did not have any complaints about that work. Adams
further stated that he had read and understood the guilty plea motions, and he did
not have questions about any part of it. He testified that he had signed each guilty
plea voluntarily.
The court explained to Adams that all of the cases were going to run
at the same time (concurrently) and that ultimately he would be sentenced to a total
of ten years in prison. Adams agreed that that was what he was pleading guilty to.
Adams also acknowledged that there were other matters involved with the guilty
pleas, including parole eligibility, the need to register with the Sex Offender
Registry on a lifetime basis and to complete the sex offender treatment program,
and that he would have to serve five years of conditional discharge. Adams again
acknowledged that he understood the consequences of his guilty pleas. After the
court went through the recommended sentences in each case, including that the
sentences would all run concurrently for a total term of imprisonment of ten years,
Adams confirmed that was what he had agreed to in exchange for his pleas of guilt.
4 Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).
-10- Adams denied that anyone had promised him anything different or in addition to
what the court had read him, and he asserted that no one had threatened, coerced,
or caused him to plead guilty. Adams stated that he understood the rights he would
be giving up by pleading guilty, which the court had gone over at the beginning of
the hearing. Adams confirmed that he was pleading guilty because he was guilty
of the charges.
The court then questioned Attorney DeRossett. He confirmed that he
had explained all of Adams’s constitutional rights to him, that he believed Adams
understood his rights and the nature of the proceedings, that the pleas were
consistent with his advice, and that Adams was making his pleas voluntarily,
knowingly, and intelligently. The court accepted Adams’s pleas, finding that his
guilty pleas were made knowingly, intelligently, and voluntarily, and ordered the
judgments of guilty to be entered as pled. The court noted that the Department of
Probation and Parole would be completing a presentence investigation (PSI) report,
and a comprehensive sex offender evaluation would also be prepared. Adams
would have the opportunity to review both of those with his attorney prior to the
sentencing hearing. The court set the matter for a sentencing hearing, which was
held on April 10 and April 24, 2024.
At the April 10, 2024, sentencing hearing, Adams informed the court
that he had reviewed the PSI report and the sex offender evaluation and found no
-11- mistakes or omissions. Stand-in counsel for Adams stated there was no legal
reason that the sentence could not be imposed at that time. The court permitted the
victim to read her victim impact statement on the record. The court then stated that
it had been reviewing the documents and noticed a discrepancy in the length of the
agreed-upon sentences and whether the sentences were to run consecutively or
concurrently. The court declined to impose the sentence that day; it wanted
Attorney DeRossett to be there.
The hearing continued on April 24, 2024. At the beginning of the
hearing, however, Attorney DeRossett informed the court that Adams had told him
that morning that he wished to withdraw his guilty pleas and to set the matters for
trial. Referencing the confusion at the initial sentencing hearing, the court stated
that it had reviewed the plea colloquy and that the record was clear that Adams
understood his sentence was for ten years. Counsel responded that he and Adams
had reviewed the PSI report and that he understood the sentence was ten years, but
Adams still wanted to go to trial. He wanted to “take his chances” with the jury.
When the court denied the request, counsel asked the court if sentencing could be
reset for the following week so that he could speak with Adams about his request
and put something in the record if necessary. Counsel added that Adams had
expressed some dissatisfaction with his representation. The court then gave
counsel time to go over the PSI and sex offender evaluation reports with Adams,
-12- and when court resumed, counsel stated that there were no factual issues, so far as
jail credit. But counsel renewed Adams’s motion to withdraw his pleas in their
entirety and continued to object to the court’s going forward with sentencing. The
court ultimately denied the motion to withdraw the guilty pleas and proceeded with
sentencing.
The court entered final judgments on April 25, 2024, sentencing
Adams pursuant to the plea agreements. His sentences were ordered to be served
concurrently with each other and with the other cases for a total of ten years’
imprisonment, and upon his release, he would be sentenced to a five-year period of
conditional discharge. The court ordered Adams to pay the costs of counseling and
therapy for the victims, prohibited him from contact or communication with the
victims or their families, and ordered him to register as a sex offender. These
appeals now follow.
On appeal, Adams continues to argue that the circuit court abused its
discretion in denying the oral motion to withdraw his guilty pleas without first
appointing new counsel, permitting him to file a written motion fleshing out his
reasoning, or even asking him about the reasons he wanted to withdraw his pleas or
his dissatisfaction with his current counsel during the sentencing hearing. The
Commonwealth contends that the circuit court did not abuse its discretion.
-13- Kentucky Rules of Criminal Procedure (RCr) 8.10 provides, in
relevant part, that “[a]t any time before judgment the court may permit the plea of
guilty or guilty but mentally ill, to be withdrawn and a plea of not guilty
substituted.” Generally, our standard of review in an appeal from the denial of a
motion to withdraw a guilty plea is whether the trial court abused its discretion.
Prater v. Commonwealth, 421 S.W.3d 380, 387 (Ky. 2014). “The test for abuse of
discretion 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). See also Williams v. Commonwealth, 229 S.W.3d 49, 50-51
(Ky. 2007), and Edmonds v. Commonwealth, 189 S.W.3d 558, 566 (Ky. 2006).
In Marks v. Commonwealth, 555 S.W.3d 462, 465 (Ky. App. 2018),
this Court explained the process when a defendant alleges his or her plea was
involuntary based upon ineffective assistance of counsel:
As stated in Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky. App. 2004), “[i]f the plea was involuntary, the motion to withdraw it must be granted.”
“Whether to deny a motion to withdraw a guilty plea based on a claim of ineffective assistance of counsel first requires ‘a factual inquiry into the circumstances surrounding the plea, primarily to ascertain whether it was voluntarily entered.’” Id. (quoting Bronk v. Commonwealth, 58 S.W.3d 482, 489 (Ky. 2001)). A plea is involuntary if the facts alleged, if true, “would render the plea involuntary under the Fourteenth Amendment’s Due Process Clause, would render the plea so tainted by counsel’s ineffective assistance as to violate the Sixth
-14- Amendment, or would otherwise clearly render the plea invalid.” Commonwealth v. Pridham, 394 S.W.3d 867, 874 (Ky. 2012).
While “[s]olemn declarations in open court carry a strong presumption of verity[,]” Edmonds v. Commonwealth, 189 S.W.3d 558, 569 (Ky. 2006), trial courts must be cautious about denying an evidentiary hearing based solely on a satisfactory Boykin colloquy. “[T]he validity of a guilty plea is not determined by reference to some magic incantation recited at the time it is taken.” Bronk, 58 S.W.3d at 487. The trial court is required to examine the voluntariness of the plea based on the “the totality of the circumstances surrounding the plea.” Centers v. Commonwealth, 799 S.W.2d 51, 54 (Ky. App. 1990).
Adams cites primarily to Commonwealth v. Tigue, 459 S.W.3d 372
(Ky. 2015), in support of his argument that he was entitled to conflict-free counsel
while seeking to withdraw his guilty pleas. The defendant in Tigue made a pro se,
oral request to withdraw his plea at the sentencing hearing, after he had expressed
to family members that his plea was involuntary and his belief that his counsel had
provided negligent representation. Id. at 380. The Court determined that Tigue
had been denied the assistance of counsel at a critical stage (the sentencing
hearing) under the facts of that case, see id. at 388, and it crafted the appropriate
remedy in such situations:
All [the remedy] requires is for this Court to rewind this matter to the point in time when Tigue had already entered his plea but before he was sentenced. A defendant in such a position may again seek to withdraw his guilty plea. And if he does, he is entitled to the
-15- assistance of counsel (other than the trial counsel he accuses of having acted ineffectively) and to be heard on his underlying claims. But such a defendant might not again seek to withdraw his plea. He could, for example, be enticed by the Commonwealth to leave his plea in place by a recommendation of a lesser sentence or a favorable parole recommendation.
. . . [T]he appropriate remedy is to vacate the judgment but not, at this point, the guilty plea, and to remand for further proceedings as may be required, depending on the action of the defendant.
Id. at 390. Based on this holding, Adams proposes that his case should have been
continued, conflict counsel should have been appointed, and he should have been
permitted to file a written motion setting forth the rationale for his desire to
withdraw his plea. The trial court, he went on, should have at least asked Adams
about representation issues and how those issues impacted the entry of his plea so
that it could have determined whether appointment of counsel was warranted.
Our review of the record reflects that counsel did not clearly articulate
the reasons underlying Adams’s request, nor did he seek to place Adams under
oath for questioning. Therefore, the trial court lacked the information necessary to
properly evaluate the motion or determine whether the appointment of conflict
counsel was warranted, and we must vacate the judgments.
Counsel advised the trial court that the PSI report was not the basis for
Adams’s request, and he further intimated that at least part of the request stemmed
from Adams’s dissatisfaction with counsel’s representation. Yet, despite being
-16- told that ineffective assistance was part of Adams’s rationale, the trial court denied
the motion without inquiry. This was an abuse of discretion. This is not to say the
trial court was obligated to grant the motion or appoint new counsel. Rather, once
informed that Adams’s request was premised, at least in part, on alleged ineffective
assistance, the trial court should have placed Adams under oath and allowed
questioning as to his reasons. Without such inquiry, the trial court could not
meaningfully evaluate the request.
“[T]he defendant is generally entitled to an evidentiary hearing when
it is alleged that the plea was entered involuntarily[.]” Tigue, 459 S.W.3d at 387.
“The exception to this general rule is that [t]he trial court is free to deny a motion
under RCr 8.10 without an evidentiary hearing, if the allegations in the motion are
inherently unreliable, are not supported by specific facts or are not grounds for
withdrawal even if true.” Zapata v. Commonwealth, 516 S.W.3d 799, 801-02 (Ky.
2017) (internal quotation marks and citations omitted). Here, however, counsel
failed to articulate Adams’s reasons for wishing to withdraw his plea beyond a
cursory sidebar remark that Adams expressed some “dissatisfaction with me.”
At that point, the trial court should have placed Adams under oath and
questioned him regarding the basis for his request. Without knowing the source of
his dissatisfaction, the trial court could not properly determine whether
appointment of conflict counsel or an evidentiary hearing was required. While it is
-17- true that the trial court conducted a satisfactory Boykin colloquy when accepting
the plea, “trial courts must be cautious about denying an evidentiary hearing based
solely on a satisfactory Boykin colloquy.” Marks, 555 S.W.3d at 465.
This Court expresses no opinion on how the trial court should have
ruled after hearing from Adams. It is entirely possible that Adams, once under
oath, may have testified that he simply wished to escape what he viewed as a bad
bargain. But it is equally possible that he could have offered a colorable claim of
ineffective assistance warranting appointment of conflict counsel and further
proceedings. At present, the record is silent and must be developed more fully.
For the foregoing reasons, the judgments of the Letcher Circuit Court
are vacated, and these matters are remanded for further proceedings to ascertain the
basis for Adams’s request to withdraw his guilty plea.
JONES, A., JUDGE, CONCURS.
EASTON, JUDGE, CONCURS IN RESULT AND FILES SEPARATE OPINION.
EASTON, JUDGE, CONCURRING IN RESULT: Because the circuit court had
been informed of an issue with representation as part of the oral motion to
withdraw the guilty plea, I concur that these cases must be remanded for further
proceedings under Tigue and Marks. But this may be an example of being careful
what you ask for. Adams was charged in eleven indictments with dozens of sex
crimes against two children. He pled guilty to numerous crimes against both
-18- children. Yet he was to receive a concurrent sentence of the possible minimum of
ten years total.
The voluntariness of the plea, including assessment of ineffective
representation, may include considerations of problems each side may have had
with the case, such as issues with witnesses or other evidence. As part of this, the
Commonwealth may show good reasons for the leniency shown. But we should
not lose sight of the basic concept that sentences should fit the crimes. For
example, one might wonder in this case of concurrent sentences for these two child
victims, which victim did not justify a separate sentence for Adams to serve for his
crimes against that child. “We agree that excessive leniency undermines the sound
administration of justice and is a proper factor for a trial judge to consider when
evaluating a plea agreement.” Hoskins v. Maricle, 150 S.W.3d 1, 25 (Ky. 2004).
At this point, we do not know all the circumstances of the plea
agreement and all the reasons for its acceptance. We remand only for the circuit
court to evaluate the voluntariness of the plea, understanding that if it was
involuntary, then it must be set aside. If it was voluntary, the circuit court has
already accepted it, but the hands of the circuit court should not be tied to prevent
rejection of the plea, even if voluntary, after revisiting the circumstances by
hearing Adams’s motion. The circuit court may in its discretion reject the plea
and proceed with trials of these many cases and charges should the circumstances
-19- presented about the plea support such an exercise of discretion. After such
proceedings, Adams may receive a total sentence of seventy years if convicted.
Adams is asking for precisely that potential result by withdrawing his guilty pleas.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Jennifer Wade Russell Coleman Assistant Public Advocate Attorney General of Kentucky Frankfort, Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
-20-