Randall Waltrip v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: December 18, 2025
• Docket: 2024-SC-0555
• Status: Unpublished

Opinion

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: DECEMBER 18, 2025 NOT TO BE PUBLISHED

Supreme Court of Kentucky 2024-SC-0555-MR

RANDALL WALTRIP APPELLANT

ON APPEAL FROM HANCOCK CIRCUIT COURT V. HONORABLE TIMOTHY R. COLEMAN, JUDGE NO. 22-CR-00009

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Randall Waltrip entered a guilty plea to one count of first-degree rape

pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), 1 and received a total

sentence of twenty years’ imprisonment. He appeals to this Court as a matter

of right. 2 Having carefully considered the law, record, and briefs, we affirm.

After Waltrip was indicted on two counts of first-degree rape, victim

under twelve, four counts of first-degree sodomy, victim under twelve, and two

counts of incest, victim under twelve, he reached an agreement with the

Commonwealth to enter an Alford plea to one count of first-degree rape in

1 Under Alford, a defendant pleads guilty and acknowledges the sufficiency of

the evidence to convict but maintains his or her innocence. 2 KY. CONST. § 110(2)(b). exchange for the dismissal of the remaining charges and a sentence

recommendation of twenty years’ imprisonment with the requirements that

Waltrip serve 85% of his sentence before being parole eligible, register as a

lifetime sex offender, and complete sex offender treatment. The basis of the

rape allegation was that Waltrip inserted a toy cucumber into his three-year-

old daughter’s vagina.

On March 22, 2024, the trial court accepted Waltrip’s plea during a

group colloquy with four other defendants. On May 15, 2024, prior to final

sentencing, Waltrip, pro se, filed a handwritten motion to withdraw his guilty

plea. In support of his request, Waltrip alleged that he did not have his

medication at the time of the plea; his counsel did not fully and accurately

inform him of the evidence against him and consequences of his plea; counsel

“pressured” him to take the plea and ignored his desire to try the case; and

counsel otherwise failed to adequately represent his interests. On the original

sentencing date, May 24, 2024, the trial court permitted Waltrip’s counsel to

withdraw, appointed Waltrip a public defender, and rescheduled the final

sentencing.

On June 17, 2024, Waltrip appeared before the trial court with newly

retained private counsel who requested additional time to review discovery and

advise Waltrip on his desire to withdraw his guilty plea. The trial court granted

the request. On August 30, 2024, Waltrip, through counsel, filed a motion to

withdraw his guilty plea on the grounds the plea was involuntary. Following

an evidentiary hearing at which Waltrip testified, the trial court denied the

2 motion and proceeded to sentence Waltrip in accordance with the terms of the

original plea agreement. This appeal followed.

Waltrip first argues the trial court erred by denying his motion to

withdraw his guilty plea because the group colloquy was insufficient to

establish a knowing, intelligent, and voluntary waiver of his right to trial. He

claims this argument was properly preserved by “[m]otion, argument, and

ruling” but his statement of preservation does not contain a “reference to the

record” as required by RAP 3 32(A)(4).

We have reviewed the record and conclude this issue was not properly

preserved. While Waltrip mentioned the occurrence of the group colloquy in

his motion to withdraw, the crux of the error claimed before the trial court

involved the alleged deficiencies of counsel. However, Waltrip has alternatively

requested palpable error review.

RCr 4 10.26 authorizes an appellate court to review an unpreserved error

as follows:

A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.

A palpable error is “easily perceptible, plain, obvious, and readily

noticeable.” Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). To

demonstrate manifest injustice, a party must show the “probability of a

3 Kentucky Rules of Appellate Procedure.

4 Kentucky Rules of Criminal Procedure.

3 different result or error so fundamental as to threaten a defendant’s

entitlement to due process of law.” Martin v. Commonwealth, 207 S.W.3d 1, 3

(Ky. 2006). In other words, a palpable error occurs where “the defect in the

proceeding was shocking or jurisprudentially intolerable.” Id. at 4.

Under Boykin v. Alabama, 395 U.S. 238, 242 (1969), due process

requires an affirmative showing that a guilty plea was knowing, intelligent,

voluntary. In addition, RCr 8.10 provides, in 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.” “Though an RCr 8.10 motion

is generally within the sound discretion of the trial court, a defendant is

entitled to a hearing on such a motion whenever it is alleged that the plea was

entered involuntarily.” Edmonds v. Commonwealth, 189 S.W.3d 558, 566 (Ky.

2006) (citing Rodriguez v. Commonwealth, 87 S.W.3d 8, 10 (Ky. 2002)).

“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.” Id. (citing Rodriguez, 87 S.W.3d at 10). “This inquiry is

inherently fact-sensitive, thus this Court reviews such a determination for clear

error, i.e., whether the determination was supported by substantial evidence.

Id. (citing Rodriguez, 87 S.W.3d at 10–11). In Edmonds, we further explained:

A guilty plea is involuntary if the defendant lacked full awareness of the direct consequences of the plea or relied on a misrepresentation by the Commonwealth or the trial court. A guilty plea is intelligent if a defendant is advised by competent counsel regarding the consequences of entering a guilty plea, including the constitutional rights that are waived thereby, is

4 informed of the nature of the charge against him, and is competent at the time the plea is entered.

Id. (internal citations omitted).

While the conduct of a plea colloquy with multiple defendants is not

preferred under Kentucky law, the use of such a procedure does not

automatically render a defendant’s plea involuntary. Rigdon v. Commonwealth,

144 S.W.3d 283, 289 (Ky. App. 2004). However, at a minimum, there must be

an assurance that “each defendant is represented by counsel, the number of

defendants involved is not so great as to make individual understanding

unlikely, and each defendant is addressed individually to establish on the

record his understanding of his rights, the charges against him, and the

implications of a guilty plea, as well as his intent to enter a guilty plea.” Id.

(citing State v. Neal, 810 S.W.2d 131, 138 (Tenn. 1991)).

Here, Waltrip’s plea colloquy was conducted with four other defendants

in unrelated cases. However, we discern no basis for Waltrip’s claim that

confusion resulted from the total number of defendants present and the

differential treatment and questioning he received relative to the other

defendants. On the contrary, the trial court’s focus on the particular and

unique aspects of Waltrip’s case supports a conclusion that the procedure

utilized trial court did not amount to prejudice under Rigdon.

Waltrip also argues that his counsel was not fully available to him at the

hearing because counsel simultaneously represented another defendant. Our

review of the record indicates that Waltrip’s attorney was standing directly

5 behind him during the entirety of the proceedings. The trial court afforded

Waltrip the opportunity to confer with him if necessary. Waltrip affirmatively

stated that he did not need to confer with his attorney further. Under the

circumstances, we cannot conclude that Waltrip was deprived of the right to

counsel.

Waltrip next contends his lack of education and mental state

exacerbated the potential for confusion at the hearing. After the trial court

inquired into his level of education, Waltrip responded he was a “high school

drop out.” The trial court then asked each defendant individually if he or she

could read and understand the plea documents each had tendered to the

court. Waltrip responded in the affirmative. In addition, the trial court

inquired into Waltrip’s mental condition and he denied having ever suffered

from any mental illness or defect. Waltrip further stated that his judgment was

not impaired in any way.

Moreover, Waltrip explicitly affirmed he understood the terms of his plea

agreement and was pleading guilty freely and voluntarily. He also stated he

understood the specific constitutional rights he was waiving by pleading guilty.

Waltrip acknowledged having discussed the nature of the charges against him

with his attorney; having reviewed the evidence against him; and having been

fully informed about the facts of his case. He indicated his satisfaction with

the advice of counsel, and stated he did not need any more time to discuss the

case with his attorney before entering the plea. Waltrip affirmed he understood

that he did not have to plead guilty and confirmed he was pleading guilty

6 because he believed the Commonwealth had sufficient evidence for a jury to

find him guilty beyond a reasonable doubt.

In Commonwealth v. Crawford, 789 S.W.2d 779, 780 (Ky. 1990), this

Court held the voluntariness of a guilty plea was sufficiently demonstrated

when the defendant “has already waived [his or her] rights by written waiver,

has acknowledged his [or her] signature thereto, and has further acknowledged

that he [or she] understood those rights.” Again, we are cognizant that “[t]he

validity of a guilty plea is determined not by reference to some magic

incantation recited at the time it was taken but from the totality of the

circumstances surrounding it.” Id. (quoting Kotas v. Commonwealth, 565

S.W.2d 445, 447 (Ky. 1978)). However, “[s]olemn declarations in open court

carry a strong presumption of verity. The subsequent presentation of

conclusory allegations unsupported by specifics is subject to summary

dismissal, as are contentions that in the face of the record are wholly

incredible.” Blackledge v. Allison, 431 U.S. 63, 74 (1977).

Based on our review of the record, we conclude the trial court conducted

a sufficient plea colloquy consistent with the requirements of Boykin.

Moreover, the finding that Waltrip’s plea was voluntary was supported by

substantial evidence. Waltrip’s subsequent, self-serving testimony, without

more, is insufficient to overcome the strong presumption of verity accorded to

his sworn statements at the plea colloquy. Edmonds, 189 S.W.3d at 569.

Thus, we perceive no error, much less, palpable error in connection with the

taking of Waltrip’s plea.

7 Next, Waltrip argues his plea was rendered involuntary as a result of

ineffective assistance of counsel. We disagree.

“A criminal defendant may demonstrate that his guilty plea was

involuntary by showing that it was the result of ineffective assistance of

counsel.” Rigdon, 144 S.W.3d at 288. As such, a guilty plea may be attacked

on the grounds that the defendant’s attorney was ineffective. Rodriguez, 87

S.W.3d at 10. In order to demonstrate ineffective assistance of counsel, a

defendant must demonstrate: “(1) that counsel made errors so serious that

counsel’s performance fell outside the wide range of professionally competent

assistance; and (2) that the deficient performance so seriously affected the

outcome of the plea process that, but for the errors of counsel, there is a

reasonable probability that the defendant would not have pleaded guilty, but

would have insisted on going to trial.” Bronk v. Commonwealth, 58 S.W.3d

482, 486–87 (Ky. 2001).

Waltrip was indicted on eight Class A felonies and was facing a potential

life sentence. An attorney is not constitutionally ineffective for merely advising

a client to plead guilty in order to receive a lesser sentence. Commonwealth v.

Campbell, 415 S.W.2d 614, 616 (Ky. 1967). Thus, Waltrip’s attorney did not

fall below an objective standard of reasonableness based solely on his advising

Waltrip to plead guilty in light of the Commonwealth’s offer to dismiss several

charges and, especially, in light of the fact that Waltrip had already made

incriminating statements to the police.

8 Contrary to Waltrip’s insistence otherwise, we do not read his statement

to police as a steadfast denial of guilt. He admitted to tickling the inner thighs

of his three-year old child to the extent of causing bruises. He also stated

“[w]hen I tickled her . . . between her legs, she did say ouch a couple times, and

I stopped.” He claimed that any possible sexual touching of the child was “by

accident” and agreed that a toy cucumber could have “slipped” and poked the

child in the vagina. Waltrip explained, “I don’t remember, but it was . . . we

were probably both excited playing together and, you know, it probably

happened.” He further described the situation as follows, “[s]he was in her

underwear, and I poked, like, I thought it poked her leg, so well, then she

laughed. So, like, I thought it was, you know, like, oh, I can make, you know,

it was, like, a playground.” At another point during the interview, Waltrip

conditioned a denial of guilt with the statement that “[u]nless it, like, slipped

up her leg, which I don’t remember.” In addition to the evidence of Waltrip’s

statement, the Commonwealth was prepared to present expert testimony and

medical proof to substantiate the child’s injuries.

Waltrip faults trial counsel for a lack of investigation and preparation for

trial. However, the record reflects that counsel sought and obtained discovery.

Counsel challenged the competency of the child victim to testify and further

objected the Commonwealth’s motion to have the child testify outside of

Waltrip’s physical presence. Notably, Waltrip did not call trial counsel to testify

and his speculation as to what else trial counsel might have done to investigate

and prepare for trial does not demonstrate counsel made errors so serious that

9 he was deficient in his performance. “An ineffective assistance of counsel claim

cannot be based upon mere speculation.” Rigdon, 144 S.W.3d at 291.

In addition, Waltrip’s claim he was rushed and pressured into pleading

guilty is belied by his statements under oath at the plea colloquy. Waltrip

stated he understood the terms of his plea agreement; he had had all the time

he needed to speak with his attorney; he understood he did not have to plead

guilty that day; and he was pleading guilty freely and voluntarily. We have no

reason to second-guess the trial court’s rejection of Waltrip’s subsequent

statements contradicting his prior sworn testimony.

Moreover, we perceive no merit in Waltrip’s claim that his original

counsel was ineffective for refusing to file the motion to withdraw the plea.

“The decision to seek to withdraw a guilty plea is not merely trial strategy, and

cannot be made by counsel.” Commonwealth v. Tigue, 459 S.W.3d 372, 386

(Ky. 2015). “If a defendant has entered a guilty plea and, before entry of final

judgment, desires to seek to withdraw that plea, whether because it was

allegedly entered in error, under duress, or other reason, he is entitled to the

assistance of counsel in making such a request.” Id. However, because of the

strong potential for a conflict of interest, “the trial court should be wary when

the same defense counsel who represented the defendant in the plea process

then represents the defendant in the plea withdrawal process.” Marks v.

Commonwealth, 555 S.W.3d 462, 467 (Ky. App. 2018).

Here, Waltrip’s counsel stated on the record he did not believe he could

ethically file the motion to withdraw Waltrip’s guilty plea. The trial court

10 properly allowed counsel to withdraw and appointed a public defender to

represent Waltrip. Waltrip later retained private counsel who filed the motion

to withdraw his plea and represented him at the evidentiary hearing. On these

facts, we perceive no violation of our decision in Tigue and fail to discern any

possible prejudice to Waltrip.

Based on the totality of the circumstances, we conclude the trial court

properly denied Waltrip’s motion to withdraw his guilty plea. The finding of

voluntariness was supported by substantial evidence of record. Further,

Waltrip has failed to demonstrate that counsel’s performance was

constitutionally deficient or that he suffered any prejudice from the alleged

errors of counsel.

Accordingly, the judgment of the Hancock Circuit Court is affirmed.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Sean T. Pharr Pharr Law Group PLLC

COUNSEL FOR APPELLEE:

Russell M. Coleman Attorney General of Kentucky

Courtney J. Hightower Assistant Attorney General