IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: MARCH 14, 2024 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2022-SC-0482-MR
ROBERT K. COLLINS APPELLANT
ON APPEAL FROM MENIFEE CIRCUIT COURT V. HONORABLE WILLIAM EVANS LANE, JUDGE NO. 17-CR-00015-002
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Robert Collins appeals to this Court and challenges the Menifee Circuit
Court’s decision to deny his motion to withdraw his guilty plea to charges of
murder; first-degree rape, victim under 12; and first-degree sodomy, victim
under 12. For the reasons expressed herein, we decline to reverse, and we
affirm the circuit court.
I. FACTS AND BACKGROUND
In July 2021, Collins, while being represented by private counsel,
entered into a plea agreement with the Commonwealth in which he agreed to
plead guilty to murder; first-degree rape, victim under 12; and first-degree
sodomy, victim under 12. In return, the Commonwealth agreed to recommend
a sentence of life imprisonment without the possibility of parole for 25 years for
the capital murder charge, as well as 50-year sentences on each of the remaining two charges. The practical effect of the agreement would be that
Collins would escape sentencing recommendations of death or life without the
possibility of parole. Collins formally entered his Alford plea on July 15, 2021.
North Carolina v. Alford, 400 U.S. 25 (1970).
Prior to sentencing, Collins made a pro se motion to withdraw his guilty
plea, as he claimed it had not been entered freely, knowingly, or voluntarily. 1
The trial court subsequently appointed an attorney from the Department of
Public Advocacy to represent Collins. By and through his new counsel, Collins
filed a motion to withdraw his guilty plea on the grounds that he was “ill and
not fully informed by defense counsel as to the evidence against him, his
possible defenses at trial, and the true nature of the sentence that the
Commonwealth was recommending.” Accordingly, the trial court held an
evidentiary hearing on Collins’s motion to withdraw his plea. At the hearing,
Collins’s former counsel, Clyde Simmons and Tom Balinski, each testified to
the circumstances underlying Collins’s guilty plea. Collins declined to testify on
his own behalf.
Ultimately, the trial court denied Collins’s motion to withdraw his guilty
plea after making a finding that there was “uncontroverted evidence in this
1 While the Menifee Circuit Court’s order denying Collins’s motion to withdraw
his guilty plea references a prior pro se motion to withdraw that plea, that pro se motion does not appear in the record before this Court. At what was scheduled to be Collins’s sentencing hearing on September 23, 2021, the trial court stated on the record that Collins had filed multiple pro se “writings” to relieve his current counsel and to withdraw his guilty plea. The trial court did not sentence Collins on that day.
2 case that the plea was voluntary without Defendant’s testimony.” (emphasis
added). The trial court then sentenced Collins in accordance with his plea deal.
Collins now appeals to this Court as a matter of right, KY. CONST. § 110(2)(b),
and argues that the trial court erred in determining that he entered his guilty
plea voluntarily. In the alternative, Collins argues that the trial court
nonetheless abused its discretion in denying his motion to withdraw a
voluntary plea. Finally, Collins urges this Court to provide guidance to trial
courts regarding the proper exercise of their discretion to grant motions to
withdraw voluntary guilty pleas.
We will develop further facts as necessary.
II. ANALYSIS
Kentucky Rule of Criminal Procedure (RCr) 8.10 provides 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.” “A motion to
withdraw a plea of guilty under RCr 8.10 is generally addressed to the sound
discretion of the court; however, where it is alleged that the plea was entered
involuntarily the defendant is entitled to a hearing on the motion.” Williams v.
Commonwealth, 229 S.W.3d 49, 51 (Ky. 2007) (emphasis added) (citing
Edmonds v. Commonwealth, 189 S.W.3d 558, 566 (Ky. 2006)). Because a plea
of guilty “constitutes a waiver of several fundamental constitutional rights” due
process requires that a valid plea “must be knowing, intelligent and voluntary.”
Haight v. Commonwealth, 760 S.W.2d 84, 87-88 (Ky. 1988) (citing Boykin v.
Alabama, 395 U.S. 238 (1969); Brady v. United States, 397 U.S. 742 (1970)).
3 Accordingly, if a trial court faced with an RCr 8.10 motion to withdraw a guilty
plea determines that the defendant’s plea was entered involuntarily, “the
motion to withdraw it must be granted.” Williams, 229 S.W.3d at 51 (citing
Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky. App. 2004)). Such a
requirement obviously undercuts the discretion entrusted to the trial court in
ruling on an RCr 8.10 motion. In fact, “[o]ur case law is clear that the
discretion to deny a motion to withdraw a guilty plea exists only after a
determination has been made that the plea was voluntary.” Rodriguez v.
Commonwealth, 87 S.W.3d 8, 10 (Ky. 2002).
“In determining whether a guilty plea is voluntary . . . the trial court
considers the totality of the circumstances surrounding the guilty plea[.]” Porter
v. Commonwealth, 394 S.W.3d 382, 385 (Ky. 2011). “The trial court is in the
best position to determine if there was any ‘reluctance, misunderstanding,
involuntariness, or incompetence to plead guilty[.]’” Id. at 386 (quoting Bronk v.
Commonwealth, 58 S.W.3d 482, 487 (Ky. 2001)). Because the trial court’s
inquiry into the circumstances underlying the entrance of a guilty plea is a
probe into the facts, this Court reviews the trial court’s voluntariness
determination for clear error. Id. at 386. A trial court’s decision is not clearly
erroneous when supported by substantial evidence. Id. Where a defendant
alleges that a deficiency in the assistance of his counsel rendered his guilty
plea invalid, the trial court must also “juxtapose the presumption of
voluntariness inherent in a proper plea colloquy with a Strickland v.
4 Washington inquiry into the performance of counsel[.]” Bronk, 58 S.W.3d at
486 (footnote omitted) (citing Strickland v. Washington, 466 U.S. 668 (1984)).
As previously stated, if the trial court determines that the defendant’s
guilty plea was entered voluntarily, the court retains its discretion to either
grant or deny a motion to withdraw the plea. Williams, 229 S.W.3d at 51. “At
its heart, a motion to withdraw a voluntarily entered guilty plea is an appeal to
the discretion of the trial court.” Greene v. Commonwealth, 475 S.W.3d 626,
630 (Ky. 2015). Accordingly, this Court reviews a trial court’s decision to deny
a motion to withdraw a guilty plea for an abuse of discretion. Edmonds, 189
S.W.3d at 570. A trial court abuses its discretion when its decision was
“arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Here, after holding an evidentiary hearing on the matter, the trial court
found that Collins had entered his guilty plea voluntarily. This Court concludes
that the trial court’s voluntariness determination was supported by substantial
evidence, and therefore not clearly erroneous. Porter, 394 S.W.3d at 386.
The record reveals that prior to the entrance of Collins’s guilty plea, the
trial court conducted a thorough plea colloquy to ascertain whether Collins was
knowingly, intelligently, and voluntarily entering his plea. When prompted by
the trial court, Collins testified that he had the ability to read and write; had
never suffered from any mental impairments; was not currently impaired by
illness, alcohol, or drugs; that he understood the nature and consequences of
the charges against him, as well as the facts supporting those charges; that he
5 was, in fact, guilty 2 of those charges; that he had consulted with his attorneys
before entering his guilty plea; that he had enough time to properly consult
with his attorneys before entering his plea; that he had no complaints about
the effectiveness of his attorneys in this case; that someone had read to him
the contents of his motion to enter a guilty plea and he understood that
motion; that he understood he had certain constitutional rights like the right to
a trial by jury, right to counsel, right to confront witnesses against him, and
that he had a privilege against self-incrimination; that he understood he was
waiving those rights by pleading guilty; and that he was pleading guilty to his
offenses willingly, freely and voluntarily.
In his later motion to withdraw his guilty plea, Collins argued to the trial
court that he was “ill” on the day he entered his guilty plea. At the trial court’s
evidentiary hearing, Collins’s former counsel, Clyde Simmons, testified that at
some point preceding the entrance of his plea Collins did tell him he had
contracted the COVID-19 virus, but that “Mr. Collins wasn’t sick on the day of
the plea.” Simmons further testified that Collins never indicated to anyone the
morning of the plea that he was sick. When asked whether Collins was sick on
the morning of his plea, Collins’s former counsel, Tom Balinski, testified that
Collins “looked a little tired, that was all.”
Collins also argued to the trial court that he was not fully apprised of the
evidence that the Commonwealth was prepared to offer against him. Simmons
2 As previously stated, Collins entered a guilty plea pursuant to North Carolina
v. Alford, 400 U.S. 25 (1970).
6 testified that due to the nature of Collins’s charged offenses, a protective order
prohibited him from sharing copies of every piece of evidence with Collins.
Simmons testified, however, that he did tell Collins about the evidence he had
obtained in discovery.
Collins further argued to the trial court that “he felt pressured by
counsel to enter the plea, and did not do so voluntarily.” Simmons testified that
he and Collins had been discussing the possibility of entering a plea agreement
for two years prior to Collins’s eventual plea. Simmons testified that, “This plea
had been talked about. This plea had been all but prayed for for months and
months and months. Mr. Collins was aware of what it meant.” Simmons
testified that Collins was initially unwilling to enter a guilty plea in exchange
for a sentence of life without the possibility of parole. Simmons testified that
the Commonwealth subsequently offered Collins a recommended sentence of
life without the possibility of parole for 25 years “two to three weeks” before
Collins eventually entered his guilty plea. Simmons testified that after he
received this most recent offer, Collins indicated that he was willing to accept
such an offer. Simmons then testified that the Commonwealth arranged for
Simmons to be transported to Bath County to formally enter his plea on July
15, 2021. Simmons testified that “a couple of days, or a day” before Collins was
scheduled to enter his plea, Collins indicated that he had changed his mind
and would not enter a plea. Simmons testified that he contacted Collins’s
grandmother and explained the situation to her. Simmons testified that, at that
time, it was his impression “that we had this one shot in Bath County that
7 morning to enter the plea or it was all off the table” but he doubted that he had
communicated that impression to Collins. Balinski testified that Collins’s trial
had already been scheduled for September of the same year, and that both
attorneys were preparing for trial. Balinski testified that he could not say
whether he had the impression that the Commonwealth’s latest plea offer
would expire soon. Simmons testified that, despite Collins’s recent indication
that he did not want to plead guilty, he had been transported to Bath County
where both attorneys met with him the morning of July 15. Simmons and
Balinski each testified that their meeting with Collins lasted less than an hour,
and Simmons testified that Collins spent 15 minutes of that meeting on the
phone speaking with his grandmother. Simmons testified that after Collins
spoke to his grandmother, he indicated to his attorneys that he was ready to
plead guilty in exchange for the Commonwealth’s sentencing recommendation
of life without the possibility of parole for 25 years. Balinski testified that he
did not recall that Collins ever said he was unwilling to go forward with his plea
the morning of July 15.
Collins also argues to this Court that he was not fully informed of the
true nature of the sentence he would receive as a result of his plea. When
asked at the evidentiary hearing whether he had informed Collins that he
would be required to register as a sex offender as a consequence of his plea,
Simmons testified that, “I think so. I can’t swear to it, but I think so. That is
part and parcel.” Balinski testified that he did not recall whether the attorneys
ever informed Collins of this consequence. Simmons also testified that the
8 attorneys made it clear to Collins that a sentence of life without the possibility
of parole for 25 years did not mean he would automatically be paroled, only
that he would be “eligible” to appear before the Parole Board. Balinski also
testified to the same.
Again, Collins declined to testify on his own behalf at the trial court’s
evidentiary hearing, so the testimony of his former counsel was unrebutted.
After hearing the above testimony from Simmons and Balinski, the trial
court determined that there was “uncontroverted evidence in this case that the
plea was voluntary[.]” The trial court also analyzed Collins’s claim under the
ineffective assistance of counsel standard announced in Strickland v.
Washington, 466 U.S. 668 (1984). “[T]o succeed in a standard claim of
ineffectiveness of counsel, a defendant must show (1) deficient representation
by counsel and (2) resulting prejudice to the defense.” Commonwealth v. Tigue,
459 S.W.3d 372, 384 (Ky. 2015) (citing Strickland, 466 U.S. at 687). “This ‘test
applies to challenges to guilty pleas based on ineffective assistance of counsel.’”
Id. at 391 (quoting Hill v. Lockhart, 474 U.S. 52, 58 (1985)). “[I]n order to satisfy
the “prejudice” requirement [of the Strickland test], the defendant must show
that there is a reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to trial.” Hill, 474
U.S. at 59. Perhaps put more simply, the defendant “must allege facts that, if
proven, would support a conclusion that the decision to reject the plea bargain
and go to trial would have been rational[.]” Commonwealth v. Thompson, 548
9 S.W.3d 881, 894 (Ky. 2018) (quoting Stiger v. Commonwealth, 381 S.W.3d 230,
237 (Ky. 2012)).
This Court finds it unnecessary to parse each of Collins’s broad,
conclusory claims to determine whether he has properly alleged or proven
deficient performance on the part of his counsel, because it is abundantly clear
that Collins has failed to prove he suffered any real prejudice as a result. Prior
to entering his guilty plea, Collins faced the possibility that, if his case
proceeded to trial and he was proven to be guilty, the Commonwealth would
recommend he receive the death penalty. At no point during the trial court’s
evidentiary hearing did Collins testify or assert that but for his counsel’s
alleged deficiencies he would have declined the Commonwealth’s plea
agreement and taken his chances at trial. Nor did defense counsel elicit any
testimony from Simmons or Balinski that would have proven the same. Rather,
Simmons testified that it was his opinion that, if this case proceeded to trial, a
potential jury would have a hard time believing Collins’s alternative perpetrator
defense and that the evidence the Commonwealth was prepared to offer against
Collins was likely to inflame a jury. Simmons also testified that the
Commonwealth had a “massive amount of evidence” at its disposal to convict
Collins. Simmons testified he conveyed these opinions to Collins. After hearing
this testimony, the trial court ultimately concluded that there was a
“substantial effort to reach a [sic] good a result as possible in light of the facts .
. . . The death penalty was avoided . . . .” Given the magnitude of the charges
and penalties Collins faced, the opinion of his counsel as to the likelihood of
10 his success at trial, the lack of any contradictory testimony from Collins, and
the fact that his plea agreement reflected a recommended sentence of life
without the possibility of parole for 25 years, this Court cannot say that Collins
has offered any facts that would “support a conclusion that the decision to
reject the plea bargain and go to trial [and face the potential of the death
penalty] would have been rational[.]” Id.
Our review of the record, including the testimony discussed above,
convinces this Court that the trial court did not commit clear error in making
its voluntariness determination, as it was clearly supported by substantial
evidence. Porter, 394 S.W.3d at 386.
Collins finally argues to this Court that despite the trial court’s
conclusions as to the voluntariness of his plea, the trial court nonetheless
abused its discretion in denying his motion to withdraw his guilty plea. Collins
argues that because RCr 8.10 entrusts trial courts with the discretion to grant
or deny a motion to withdraw even a voluntary plea, the trial court’s failure to
further articulate another basis (aside from voluntariness) for the denial of his
motion constitutes error. Collins further urges this Court to provide guidance
to trial courts regarding the proper exercise of their discretion to grant or deny
motions to withdraw voluntary guilty pleas. This Court has no problem
concluding that the trial court did not abuse its discretion in this instance. We
have previously declined to pronounce a standard restraining our trial courts’
discretion in ruling on a motion to withdraw a guilty plea that was voluntarily
entered, Williams, 229 S.W.3d at 53, and we decline to do so again today. We
11 see no reason why the trial court’s determination, supported by substantial
evidence, that the defendant’s guilty plea was voluntary cannot be reason
enough to deny a motion to withdraw that plea. Accordingly, we affirm the
Menifee Circuit Court.
III. CONCLUSION
This Court affirms the judgment of the Menifee Circuit Court because we
conclude the trial court did not abuse its discretion in denying Collins’s motion
to withdraw his voluntarily entered guilty plea.
All sitting. VanMeter, C.J.; Bisig, Conley, Keller, Lambert, and Nickell,
JJ., concur. Thompson, J., concurs in result only.
COUNSEL FOR APPELLANT:
Robert Chung-Hua Yang Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
Matthew Robert Krygiel Assistant Attorney General