RENDERED: FEBRUARY 10, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0176-MR
STUART A. COX APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE A.C. MCKAY CHAUVIN, JUDGE ACTION NO. 16-CR-000838
COMMONWEALTH OF KENTUCKY APPELLEE
AND
NO. 2021-CA-0244-MR
APPEAL FROM WARREN CIRCUIT COURT v. HONORABLE STEVE ALAN WILSON, JUDGE ACTION NO. 16-CR-00278
OPINION AFFIRMING ** ** ** ** **
BEFORE: CALDWELL, DIXON, AND TAYLOR, JUDGES.
CALDWELL, JUDGE: Stuart Cox appeals from the trial court denials of his
motions pursuant to Kentucky Rules of Criminal Procedure (hereinafter “RCr”)
11.42. Having reviewed the record, the briefs of the parties, and the orders of the
Jefferson and Warren Circuit Courts, we affirm.
FACTS
In 2016, Cox was indicted for murder and tampering with physical
evidence in the shooting death of his girlfriend, Tracey Brock, in Jefferson County.
Following the crime, he fled and was ultimately captured in Warren County, where
he was indicted for fleeing or evading police and several misdemeanor offenses.
He entered a plea pursuant to North Carolina v. Alford1 to charges in both counties,
agreeing to serve a total term of twenty-five (25) years’ imprisonment.2
1 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 162 (1970). 2 In No. 16-CR-00278, Cox pleaded guilty in Warren Circuit Court to amended charges of fleeing or evading police in the first-degree, operating a motor vehicle while under the influence of intoxicants, first offense, and resisting arrest. The sentences for all three (3) counts ran concurrent to one another for a total of five (5) years, but ran consecutive to the twenty (20) year sentence he received in No. 16-CR-000838, the Jefferson Circuit Court case wherein he pleaded guilty to the amended charge of manslaughter in the first degree and tampering with physical evidence. He agreed to a seventeen (17) year sentence for the manslaughter count and three (3) years for the tampering count, to run consecutive to one another for a total of twenty (20) years, but consecutive to the Warren Circuit charges. Therefore, when the Warren Circuit Court sentence was ordered to run consecutive to his Jefferson Circuit Court sentence, his total sentence of imprisonment was twenty-five (25) years.
-2- In 2020, Cox filed motions in both Jefferson and Warren Circuit
Courts pursuant to RCr 11.42 alleging that his appointed counsel rendered
ineffective assistance of counsel in advising him to accept the plea bargains he
entered, which resolved the cases in both counties. Both the Jefferson Circuit
Court and the Warren Circuit Court denied relief without evidentiary hearings. We
affirm.
STANDARD OF REVIEW
The standard of review employed when the voluntariness of a guilty
plea is challenged for the purported lack of effectiveness of counsel is well
established. The trial court must determine whether the guilty plea was entered
knowingly, voluntarily, and intelligently by considering the totality of the
circumstances. Edmonds v. Commonwealth, 189 S.W.3d 558, 566 (Ky. 2006).
Such an inquiry is fact intensive and is reviewed by the appellate court only for
clear error. Id. In determining whether the voluntariness of the plea was
implicated by deficient performance of counsel, the standard established in
Strickland v. Washington is applied by the reviewing court. 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984).
The Strickland standard sets forth a two-prong test for ineffective assistance of counsel:
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel
-3- was not functioning as the “counsel” guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
[Strickland, 466 U.S. at 687, 104 S. Ct. at 2064]. To show prejudice, the
defendant must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is the probability sufficient to undermine the confidence in the outcome.
Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 695.
Bowling v. Commonwealth, 80 S.W.3d 405, 411-12 (Ky. 2002).
The second prong of the Strickland analysis concerns the showing of
prejudice, that but for the deficient performance of counsel, the outcome of the
matter would have been more favorable to the Movant. Thus, we need not
question the performance of counsel if we first determine that the Movant cannot
show prejudice.
The trial court’s inquiry into allegations of ineffective assistance of counsel requires the court to determine whether counsel’s performance was below professional standards and caused the defendant to lose what he otherwise would probably have won and whether counsel was so thoroughly ineffective that defeat was snatched from the hands of probable victory.
-4- Bronk v. Commonwealth, 58 S.W.3d 482, 487 (Ky. 2001) (internal quotation marks
and citations omitted) (emphasis added).
We will employ this standard of review in reviewing each allegation
of ineffective assistance of counsel Cox brings against the two attorneys appointed
in the separate indictments to represent him.
ANALYSIS
a. Jefferson County judgment
Cox impugns the performance of his counsel by attacking the
sufficiency of the evidence against him and alleging counsel overstated the
likelihood of a conviction. However, it is not appropriate to attack the sufficiency
of evidence after the entry of a guilty plea. “Entry of a voluntary, intelligent plea
of guilty has long been held by Kentucky Courts to preclude a post-judgment
challenge to the sufficiency of the evidence.” Taylor v. Commonwealth, 724
S.W.2d 223, 225 (Ky. App. 1986).
The entry of an unconditional guilty plea requires the accused to
acknowledge the accuracy of the facts underlying the indictment.
A defendant who elects to unconditionally plead guilty admits the factual accuracy of the various elements of the offenses with which he is charged. By such an admission, a convicted appellant forfeits the right to protest at some later date that the state could not have proven that he committed the crimes to which he pled guilty. To permit a convicted defendant to do so would result in a double benefit in that defendants who elect to
-5- plead guilty would receive the benefit of the plea bargain which ordinarily precedes such a plea along with the advantage of later challenging the sentence resulting from the plea on grounds normally arising in the very trial which defendant elected to forego.
Id.
Cox acknowledged the sufficiency of the evidence against him when
he allocuted before the Jefferson Circuit Court. His discussion with the trial court
of the charges against him and the evidence in support of those charges was an
acknowledgement of the validity of the advice of counsel to enter a plea deal
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RENDERED: FEBRUARY 10, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0176-MR
STUART A. COX APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE A.C. MCKAY CHAUVIN, JUDGE ACTION NO. 16-CR-000838
COMMONWEALTH OF KENTUCKY APPELLEE
AND
NO. 2021-CA-0244-MR
APPEAL FROM WARREN CIRCUIT COURT v. HONORABLE STEVE ALAN WILSON, JUDGE ACTION NO. 16-CR-00278
OPINION AFFIRMING ** ** ** ** **
BEFORE: CALDWELL, DIXON, AND TAYLOR, JUDGES.
CALDWELL, JUDGE: Stuart Cox appeals from the trial court denials of his
motions pursuant to Kentucky Rules of Criminal Procedure (hereinafter “RCr”)
11.42. Having reviewed the record, the briefs of the parties, and the orders of the
Jefferson and Warren Circuit Courts, we affirm.
FACTS
In 2016, Cox was indicted for murder and tampering with physical
evidence in the shooting death of his girlfriend, Tracey Brock, in Jefferson County.
Following the crime, he fled and was ultimately captured in Warren County, where
he was indicted for fleeing or evading police and several misdemeanor offenses.
He entered a plea pursuant to North Carolina v. Alford1 to charges in both counties,
agreeing to serve a total term of twenty-five (25) years’ imprisonment.2
1 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 162 (1970). 2 In No. 16-CR-00278, Cox pleaded guilty in Warren Circuit Court to amended charges of fleeing or evading police in the first-degree, operating a motor vehicle while under the influence of intoxicants, first offense, and resisting arrest. The sentences for all three (3) counts ran concurrent to one another for a total of five (5) years, but ran consecutive to the twenty (20) year sentence he received in No. 16-CR-000838, the Jefferson Circuit Court case wherein he pleaded guilty to the amended charge of manslaughter in the first degree and tampering with physical evidence. He agreed to a seventeen (17) year sentence for the manslaughter count and three (3) years for the tampering count, to run consecutive to one another for a total of twenty (20) years, but consecutive to the Warren Circuit charges. Therefore, when the Warren Circuit Court sentence was ordered to run consecutive to his Jefferson Circuit Court sentence, his total sentence of imprisonment was twenty-five (25) years.
-2- In 2020, Cox filed motions in both Jefferson and Warren Circuit
Courts pursuant to RCr 11.42 alleging that his appointed counsel rendered
ineffective assistance of counsel in advising him to accept the plea bargains he
entered, which resolved the cases in both counties. Both the Jefferson Circuit
Court and the Warren Circuit Court denied relief without evidentiary hearings. We
affirm.
STANDARD OF REVIEW
The standard of review employed when the voluntariness of a guilty
plea is challenged for the purported lack of effectiveness of counsel is well
established. The trial court must determine whether the guilty plea was entered
knowingly, voluntarily, and intelligently by considering the totality of the
circumstances. Edmonds v. Commonwealth, 189 S.W.3d 558, 566 (Ky. 2006).
Such an inquiry is fact intensive and is reviewed by the appellate court only for
clear error. Id. In determining whether the voluntariness of the plea was
implicated by deficient performance of counsel, the standard established in
Strickland v. Washington is applied by the reviewing court. 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984).
The Strickland standard sets forth a two-prong test for ineffective assistance of counsel:
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel
-3- was not functioning as the “counsel” guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
[Strickland, 466 U.S. at 687, 104 S. Ct. at 2064]. To show prejudice, the
defendant must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is the probability sufficient to undermine the confidence in the outcome.
Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 695.
Bowling v. Commonwealth, 80 S.W.3d 405, 411-12 (Ky. 2002).
The second prong of the Strickland analysis concerns the showing of
prejudice, that but for the deficient performance of counsel, the outcome of the
matter would have been more favorable to the Movant. Thus, we need not
question the performance of counsel if we first determine that the Movant cannot
show prejudice.
The trial court’s inquiry into allegations of ineffective assistance of counsel requires the court to determine whether counsel’s performance was below professional standards and caused the defendant to lose what he otherwise would probably have won and whether counsel was so thoroughly ineffective that defeat was snatched from the hands of probable victory.
-4- Bronk v. Commonwealth, 58 S.W.3d 482, 487 (Ky. 2001) (internal quotation marks
and citations omitted) (emphasis added).
We will employ this standard of review in reviewing each allegation
of ineffective assistance of counsel Cox brings against the two attorneys appointed
in the separate indictments to represent him.
ANALYSIS
a. Jefferson County judgment
Cox impugns the performance of his counsel by attacking the
sufficiency of the evidence against him and alleging counsel overstated the
likelihood of a conviction. However, it is not appropriate to attack the sufficiency
of evidence after the entry of a guilty plea. “Entry of a voluntary, intelligent plea
of guilty has long been held by Kentucky Courts to preclude a post-judgment
challenge to the sufficiency of the evidence.” Taylor v. Commonwealth, 724
S.W.2d 223, 225 (Ky. App. 1986).
The entry of an unconditional guilty plea requires the accused to
acknowledge the accuracy of the facts underlying the indictment.
A defendant who elects to unconditionally plead guilty admits the factual accuracy of the various elements of the offenses with which he is charged. By such an admission, a convicted appellant forfeits the right to protest at some later date that the state could not have proven that he committed the crimes to which he pled guilty. To permit a convicted defendant to do so would result in a double benefit in that defendants who elect to
-5- plead guilty would receive the benefit of the plea bargain which ordinarily precedes such a plea along with the advantage of later challenging the sentence resulting from the plea on grounds normally arising in the very trial which defendant elected to forego.
Id.
Cox acknowledged the sufficiency of the evidence against him when
he allocuted before the Jefferson Circuit Court. His discussion with the trial court
of the charges against him and the evidence in support of those charges was an
acknowledgement of the validity of the advice of counsel to enter a plea deal
where he was ensured of a sentence less than the maximum, in this instance, a life
sentence.3 “The colloquy is an affirmative showing, on the record, that a guilty
plea is voluntary and intelligent[.]” Simms v Commonwealth, 354 S.W.3d 141, 144
(Ky. App. 2011) (internal quotation marks and citation omitted). Cox cannot now
decry his plea as unfair simply because he has changed his mind. See
Commonwealth v. Pridham, 394 S.W.3d 867, 885 (Ky. 2012).
Further, Cox is unable to show prejudice. He faced a possible life
sentence of imprisonment, and through the assistance of counsel in the negotiation
of the plea bargain to manslaughter he secured a sentence of twenty (20) years.
“Moreover, to obtain relief on this type of claim, a petitioner must convince the
court that a decision to reject the plea bargain would have been rational under the
3 Kentucky Revised Statutes (“KRS”) 507.020(2).
-6- circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372, 130 S. Ct. 1473, 1485,
176 L. Ed. 2d 284 (2010). See also Williams v. Commonwealth, 336 S.W.3d 42
(Ky. 2011). “If the prejudice prong . . . were satisfied by the movant simply saying
he would not have taken the deal absent the misadvice, it would be rendered
essentially meaningless. ‘Prejudice’ requires more than a simple self-serving
statement by the movant.” Stiger v. Commonwealth, 381 S.W.3d 230, 237 n.3 (Ky.
2012).
b. Warren County judgment
Cox entered a guilty plea to the Warren County charges with the
express provision that the sentence he agreed to, five (5) years, would be run
consecutively to the Jefferson County sentence of twenty (20) years for a total term
of imprisonment of twenty-five (25) years. He was finally sentenced in Warren
Circuit Court after being sentenced in Jefferson Circuit Court. The final judgments
of both courts acknowledged that the sentence it was imposing was to run
consecutive to the sentence imposed by the other circuit court.
Cox alleges that his attorney misadvised him to plead guilty to the
amended charges in Warren and agree to the resultant five (5) year sentence
because as the final judgment in Jefferson Circuit Court had been entered, he was
not bound to pleading guilty in Warren Circuit Court to satisfy the more significant
Jefferson plea agreement.
-7- However, when he had previously appeared before the Warren Circuit
Court to enter the plea, he acknowledged during the colloquy that pleading to a
five (5) year sentence in Warren was in his best interest given the more serious
charges, and potential life sentence, he faced in Jefferson. Thus, he acknowledged
that he believed the plea bargain was to his ultimate benefit, even if he might be
agreeing to the maximum sentence to the Warren counts. The record makes it very
clear that the attorneys for both sides in both counties were working cooperatively
to craft plea agreements that were satisfactory to all. Again, a showing of
prejudice requires more than the movant’s self-serving statement. It requires a
showing that rejection of the plea deal entered into would have been a rational
choice. Padilla, 559 U.S. at 372, 130 S. Ct. at 1485. Cox has not made that
showing.
CONCLUSION
Cox avoided the possibility of a life sentence by the entry of his pleas
and received a sentence of twenty-five (25) years. As it is not appropriate to attack
the sufficiency of the evidence after the entry of the plea, it is not possible for him
to reasonably argue that he was prejudiced in any way by pleading guilty and
receiving a sentence of less than the maximum, and considerably less, at that to the
Jefferson County charges involving the death of his girlfriend. As the plea
agreement in Warren County was contemplated by the plea in Jefferson County, it
-8- was not prejudicial to him to have received the maximum five (5) year sentence to
the charges he faced in Warren County, as he faced a possible life sentence in
Jefferson County, were the plea deals to fail. We affirm.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEFS FOR APPELLEE:
Stuart A. Cox, pro se Daniel Cameron West Liberty, Kentucky Attorney General of Kentucky
Christopher Henry Assistant Attorney General Frankfort, Kentucky
-9-