2018-SC-000631-MR
JEFFREY ROWLAND APPELLANT
ON APPEAL FROM CLARK CIRCUIT COURT V. HONORABLE JEAN CHENAULT LOGUE, JUDGE NO. 16-CR-00127
COMMONWEALTH OF KENTUCKY APPELLEE
ORDER
On the Court’s own motion, this Court hereby modifies the Opinion of
the Court by Justice VanMeter rendered December 19, 2019 in the above
styled case by the substitution of a new opinion as attached hereto in lieu of
the Opinion of the Court as originally entered. Said modification does not
affect the holding, and is made only to reflect a clerical error within the vote
line on page 5.
ENTERED: December 20, 2019 IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. MODIFIED: DECEMBER 20, 2019 RENDERED: DECEMBER 19, 2019 NOT TO BE PUBLISHED
JEFFREY ROWLAND
ON APPEAL FROM CLARK CIRCUIT COURT V. HONORABLE JEAN CHENAULT LOGUE, JUDGE NO. 16-CR-00127
MEMORANDUM OPINION OF THE COURT
DISMISSING
In 2018, Jeffrey Rowland was tried for, and convicted of, first-degree rape
and first-degree kidnapping of his wife. Before the sentencing phase of trial,
Jeffrey Rowland entered into a plea deal with the Commonwealth, whereby he
waived jury sentencing in exchange for a total of twenty-years’ imprisonment
(ten years on each count, to run consecutively), and waived his right to appeal
any and all trial and pre-trial evidentiary and procedural errors. Rowland then
filed this appeal as a matter of right,1 claiming the trial court committed error
1 Ky. Const. § 110(2)(b). in admitting certain evidence. Because Rowland waived his right to appeal the
issues he now raises, we dismiss this appeal.2
Recitation of Rowland’s conduct leading to the aforementioned
convictions is unnecessary. Suffice it to say that a jury convicted Rowland of
first-degree rape and first-degree kidnapping, for which he faced up to forty
years of violent offender time. See KRS3 509.040; KRS 510.040; KRS 532.060.
Pursuant to his plea deal, Rowland received half the sentencing time he could
have received from a jury. The Commonwealth likewise benefitted from the
plea deal: without Rowland’s express waiver of his right to appeal, the
Commonwealth faced the risk of reversal and remand.
As a fundamental right in our legal system, in all criminal prosecutions a
defendant has a right to a trial by jury. KRS 29A.270; U.S. Const., amend. VI.
Rowland was entitled to, and received, this right. “Under Kentucky law, a
criminal defendant has a statutory right to have his sentence set by a jury.”
Hammond v. Commonwealth, 569 S.W.3d 404, 409 (Ky. 2019) (citation
omitted). “Among the rights recognized as requiring the defendant’s personal
waiver are the rights to plead guilty, waive a jury ... or take an appeal.” Id.
(citations omitted).
2 On appeal, Rowland has not raised a nonwaivable issue such as subject matter jurisdiction. See Commonwealth u. Steadman, 411 S.W.3d 717, 724 (Ky. 2013) (“Almost all issues are subject to waiver, whether from inaction or consent, even in a criminal case .... [t]he lone exception to this rule, of course, is when the question is whether the trial court had general subject-matter jurisdiction.” (citations omitted). 3 Kentucky Revised Statutes.
2 “To be valid, a guilty plea must be entered intelligently and voluntarily.
In determining whether a plea is voluntary, trial courts make a fact-specific
inquiry into the totality of the circumstances surrounding the plea.” Id. at 408
(citations omitted). Rowland does not argue that his plea was anything but
intelligently and voluntarily made. Indeed, the videotaped recording of the trial
court’s plea colloquy reflects the trial court’s confirmation on two occasions
that Rowland intended to waive his right to appeal any and all trial and pre
trial evidentiary and procedural errors. In the first instance, the colloquy was
as follows:
Trial court: By accepting this offer, as I understand it, then, part of the offer is that you’re waiving your right to appeal any and all issues at this trial.
Rowland: Yes ma’am.
Trial court: And certainly your lawyer has made objections, motions for mistrial . . . you would be waiving all of that, you understand. Okay. And you’re nodding “yes,” my camera isn’t picking you up.
The trial court then requested the camera focus on Rowland and proceeded
discussing with him the charges and imprisonment time he faced pursuant to
the plea deal. The court continued,
Trial court: You really don’t need to plead guilty in this case. I think that ... I want to make sure you understand all your constitutional rights, and we’ve gone over those before. And Ms. Brown [defense counsel], you have gone over those with Mr. Rowland?
Ms. Brown: Yes, your Honor.4
4 Notably, this was the second time defense counsel had discussed with Rowland the rights he would be waiving by pleading; he had previously considered and
3 Trial court: And you are now at this point in the trial waiving those rights, which means the right to appeal this case, the right to call further witnesses in this case, to present any additional evidence or certainly cross-examine anyone that did present evidence. Well, there won’t be any more evidence, so you’ll be giving up all rights going forward. Is that what you wish to do?
Rowland: Yes, ma’am.
Trial court: Alright.
Nothing in the record suggests that Rowland’s plea was involuntary. Nor
does anything in the record indicate that at the time of his plea, Rowland
wished to reserve any issues for appeal. Rather, his response to the
Commonwealth’s argument for dismissal of this appeal is that the
Commonwealth waived this objection by not raising it in response to his filing
of a Notice of Appeal. However, Rowland cites no legal authority in support of
his assertion that the Commonwealth’s Motion to Dismiss Appeal and its
appellate brief requesting dismissal is belated or somehow insufficient to
preserve this issue for our review.5
“Generally, plea agreements in criminal cases are contracts between the
accused and the Commonwealth, and are interpreted according to ordinary
contract principles.” Hammond, 569 S.W.3d at 409 (citation omitted). “The
was prepared to agree to a plea pre-trial after discussions with his counsel. However, he changed his mind at the last minute and chose to proceed to trial. 5 Rowland cites United States v.
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2018-SC-000631-MR
JEFFREY ROWLAND APPELLANT
ON APPEAL FROM CLARK CIRCUIT COURT V. HONORABLE JEAN CHENAULT LOGUE, JUDGE NO. 16-CR-00127
COMMONWEALTH OF KENTUCKY APPELLEE
ORDER
On the Court’s own motion, this Court hereby modifies the Opinion of
the Court by Justice VanMeter rendered December 19, 2019 in the above
styled case by the substitution of a new opinion as attached hereto in lieu of
the Opinion of the Court as originally entered. Said modification does not
affect the holding, and is made only to reflect a clerical error within the vote
line on page 5.
ENTERED: December 20, 2019 IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. MODIFIED: DECEMBER 20, 2019 RENDERED: DECEMBER 19, 2019 NOT TO BE PUBLISHED
JEFFREY ROWLAND
ON APPEAL FROM CLARK CIRCUIT COURT V. HONORABLE JEAN CHENAULT LOGUE, JUDGE NO. 16-CR-00127
MEMORANDUM OPINION OF THE COURT
DISMISSING
In 2018, Jeffrey Rowland was tried for, and convicted of, first-degree rape
and first-degree kidnapping of his wife. Before the sentencing phase of trial,
Jeffrey Rowland entered into a plea deal with the Commonwealth, whereby he
waived jury sentencing in exchange for a total of twenty-years’ imprisonment
(ten years on each count, to run consecutively), and waived his right to appeal
any and all trial and pre-trial evidentiary and procedural errors. Rowland then
filed this appeal as a matter of right,1 claiming the trial court committed error
1 Ky. Const. § 110(2)(b). in admitting certain evidence. Because Rowland waived his right to appeal the
issues he now raises, we dismiss this appeal.2
Recitation of Rowland’s conduct leading to the aforementioned
convictions is unnecessary. Suffice it to say that a jury convicted Rowland of
first-degree rape and first-degree kidnapping, for which he faced up to forty
years of violent offender time. See KRS3 509.040; KRS 510.040; KRS 532.060.
Pursuant to his plea deal, Rowland received half the sentencing time he could
have received from a jury. The Commonwealth likewise benefitted from the
plea deal: without Rowland’s express waiver of his right to appeal, the
Commonwealth faced the risk of reversal and remand.
As a fundamental right in our legal system, in all criminal prosecutions a
defendant has a right to a trial by jury. KRS 29A.270; U.S. Const., amend. VI.
Rowland was entitled to, and received, this right. “Under Kentucky law, a
criminal defendant has a statutory right to have his sentence set by a jury.”
Hammond v. Commonwealth, 569 S.W.3d 404, 409 (Ky. 2019) (citation
omitted). “Among the rights recognized as requiring the defendant’s personal
waiver are the rights to plead guilty, waive a jury ... or take an appeal.” Id.
(citations omitted).
2 On appeal, Rowland has not raised a nonwaivable issue such as subject matter jurisdiction. See Commonwealth u. Steadman, 411 S.W.3d 717, 724 (Ky. 2013) (“Almost all issues are subject to waiver, whether from inaction or consent, even in a criminal case .... [t]he lone exception to this rule, of course, is when the question is whether the trial court had general subject-matter jurisdiction.” (citations omitted). 3 Kentucky Revised Statutes.
2 “To be valid, a guilty plea must be entered intelligently and voluntarily.
In determining whether a plea is voluntary, trial courts make a fact-specific
inquiry into the totality of the circumstances surrounding the plea.” Id. at 408
(citations omitted). Rowland does not argue that his plea was anything but
intelligently and voluntarily made. Indeed, the videotaped recording of the trial
court’s plea colloquy reflects the trial court’s confirmation on two occasions
that Rowland intended to waive his right to appeal any and all trial and pre
trial evidentiary and procedural errors. In the first instance, the colloquy was
as follows:
Trial court: By accepting this offer, as I understand it, then, part of the offer is that you’re waiving your right to appeal any and all issues at this trial.
Rowland: Yes ma’am.
Trial court: And certainly your lawyer has made objections, motions for mistrial . . . you would be waiving all of that, you understand. Okay. And you’re nodding “yes,” my camera isn’t picking you up.
The trial court then requested the camera focus on Rowland and proceeded
discussing with him the charges and imprisonment time he faced pursuant to
the plea deal. The court continued,
Trial court: You really don’t need to plead guilty in this case. I think that ... I want to make sure you understand all your constitutional rights, and we’ve gone over those before. And Ms. Brown [defense counsel], you have gone over those with Mr. Rowland?
Ms. Brown: Yes, your Honor.4
4 Notably, this was the second time defense counsel had discussed with Rowland the rights he would be waiving by pleading; he had previously considered and
3 Trial court: And you are now at this point in the trial waiving those rights, which means the right to appeal this case, the right to call further witnesses in this case, to present any additional evidence or certainly cross-examine anyone that did present evidence. Well, there won’t be any more evidence, so you’ll be giving up all rights going forward. Is that what you wish to do?
Rowland: Yes, ma’am.
Trial court: Alright.
Nothing in the record suggests that Rowland’s plea was involuntary. Nor
does anything in the record indicate that at the time of his plea, Rowland
wished to reserve any issues for appeal. Rather, his response to the
Commonwealth’s argument for dismissal of this appeal is that the
Commonwealth waived this objection by not raising it in response to his filing
of a Notice of Appeal. However, Rowland cites no legal authority in support of
his assertion that the Commonwealth’s Motion to Dismiss Appeal and its
appellate brief requesting dismissal is belated or somehow insufficient to
preserve this issue for our review.5
“Generally, plea agreements in criminal cases are contracts between the
accused and the Commonwealth, and are interpreted according to ordinary
contract principles.” Hammond, 569 S.W.3d at 409 (citation omitted). “The
was prepared to agree to a plea pre-trial after discussions with his counsel. However, he changed his mind at the last minute and chose to proceed to trial. 5 Rowland cites United States v. Story, 439 F.3d 226 (5th Cir. 2006) to support his argument that terms of a plea bargain, such as a waiver of right to appeal, may be waived by the government. The decision in Story, however, does not support Rowland’s position. In Story, the government failed to mention the waiver of appeal in its brief. Id. at 229. By contrast, the Commonwealth’s brief presents Rowland’s waiver of appeal as its first argument.
4 general rule of law is that a court’s construction of a contract should be
controlled by the intention of the parties.” Id. (citation omitted). By entering
into the plea agreement and waiving jury sentencing, Rowland made a knowing
and voluntary decision to avoid a potentially longer sentence by agreeing to a
twenty-year sentence. Rowland bargained with the Commonwealth to receive a
lesser sentence than he would have otherwise been eligible for, and he accepted
and received the bargained-for sentence. And, the Commonwealth sought to
avoid the possibility that the jury would recommend a lighter sentence, or that
Rowland’s convictions would be reversed on appeal. The Commonwealth is
entitled to enjoy the benefits of its bargain too.
The parties’ intention in entering the plea agreement is clear and both
parties rationally determined that the agreement furthered their interests. As
part of the plea agreement, Rowland expressly waived his right to appeal the
issues he now raises. For this reason, we dismiss this appeal.
Minton, C.J.; Hughes, Keller, Lambert, VanMeter and Wright, JJ., sitting.
All concur. Nickell, J., not sitting.
COUNSEL FOR APPELLANT:
Karen Shuff Maurer Assistant Public Advocate DEPARTMENT OF PUBLIC ADVOCACY
COUNSEL FOR APPELLEE:
Andy Beshear Attorney General of Kentucky
Joseph A. Newberg II Assistant Attorney General