Opinion
2023-CA-0778-MR
07-26-2024
DESANTO BECKLEY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Jennifer L. Wade Frankfort, Kentucky. BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky, Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky.
NOT TO BE PUBLISHED
APPEAL FROM CAMPBELL CIRCUIT COURT HONORABLE DANIEL J. ZALLA, JUDGE ACTION NO. 21-CR-00676
BRIEFS FOR APPELLANT: Jennifer L. Wade Frankfort, Kentucky.
BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky, Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky.
BEFORE: COMBS, LAMBERT, AND MCNEILL, JUDGES.
OPINION
MCNEILL, JUDGE.
Desanto Beckley (“Beckley”) appeals from the Campbell Circuit Court's denial of his motion to withdraw his guilty plea pursuant to RCr8.10. We affirm.
Kentucky Rules of Criminal Procedure.
Beckley was indicted by a Campbell County Grand Jury for First-Degree Robbery and subsequently entered a guilty plea to the amended charge of Second-Degree Robbery with a recommended sentence of five-years' imprisonment. Before sentencing, Beckley moved to withdraw his guilty plea, arguing his family had pressured him to accept the offer.
At the hearing on the motion to withdraw, Beckley was represented by two attorneys from the Department of Public Advocacy, Amy Miller ("Miller") and Sheena Baylon ("Baylon"). Miller informed the court the Commonwealth had warned they might call her to testify to any discussions with Beckley about family pressure to plead guilty and that Beckley had agreed to waive the potential conflict for that limited purpose. The court questioned Beckley if he understood the waiver and if the waiver was made freely and voluntarily and Beckley said "yes." Beckley then testified about how he felt pressured by his family to plead guilty so he could return home sooner to help them raise his four children.
Following Beckley's testimony, the defense called Miller to testify to her discussions with Beckley about family pressure. Although Beckley never told Miller he felt pressured by his family to plead guilty, they had discussed the financial hardship his mother was experiencing raising his children and that his family wanted him to get home as quickly as possible. They were concerned about the amount of potential jail time he faced if he went to trial as well as the delay in waiting to go to trial. From their discussions, Miller knew the family was heavily involved in Beckley's case but did not know at the time this was significant pressure on him to plead guilty.
At the close of the hearing, Miller asked the court to allow Beckley to withdraw his guilty plea. She now believed his guilty plea was not completely voluntary due to the pressure placed upon him by his family. Miller noted the family pressure was clear in their discussions prior to the entry of the guilty plea, even if she was unaware of its influence. The court took the motion under submission and eventually denied it. This appeal followed.
We review a trial court's denial of a motion to withdraw a guilty plea for abuse of discretion. Greene v. Commonwealth, 475 S.W.3d 626, 630 (Ky. 2015). "So we will not disturb the denial of [Beckley's] motion to withdraw his guilty plea absent a determination that the trial court's ruling was arbitrary, unreasonable, unfair, or unsupported by legal principles." Id. (quoting Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).
On appeal, Beckley does not directly challenge the trial court's denial of his motion to withdraw his guilty plea. Instead, he argues he was denied his right to conflict-free counsel at the hearing on the motion to withdraw. Specifically, he argues the court's inquiry into whether he knowingly waived conflict-free counsel was inadequate and the court should have appointed substitute counsel. He concedes these arguments are unpreserved and requests palpable error review under RCr 10.26.
Palpable error review is inappropriate, however, because any conflict arising from Miller's testifying in support of Beckley's motion to withdraw was invited error. "Generally, a party is estopped from asserting an invited error on appeal." Quisenberry v. Commonwealth, 336 S.W.3d 19, 37 (Ky. 2011) (citation omitted). "Invited errors amount to a waiver and are not subject to appellate review." Webster v. Commonwealth, 438 S.W.3d 321, 324 (Ky. 2014) (citation omitted).
Our Supreme Court has even held that "a statement violating a defendant's Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)] rights admitted at trial can be determined to be invited error." Kelly v. Commonwealth, 554 S.W.3d 854, 866 (Ky. 2018) (citing Clay v. Commonwealth, No. 2012-SC-000421-MR, 2014 WL 4160134 (Ky. Aug. 21, 2014)).
While the Commonwealth indicated it might ask Miller to testify about the voluntariness of Beckley's plea, Beckley was the one who, in fact, called Miller to substantiate his testimony about family pressure to plead guilty. "We have often held that a party is estopped to take advantage of an error produced by his own act." Robertson v. Commonwealth, 677 S.W.3d 309, 318 (Ky. 2023) (quoting Wright v. Jackson, 329 S.W.2d 560, 562 (Ky. 1959)). See also Gray v. Commonwealth, 203 S.W.3d 679, 686 (Ky. 2006), as corrected (Oct. 20, 2006), as corrected (Oct. 31, 2006) (citation omitted) ("A defendant cannot complain on appeal of alleged errors invited or induced by himself, particularly where . . . it is not clear that the defendant was prejudiced thereby.").
Even were we to consider Beckley's arguments on the merits, we would find no error, much less palpable error. It is established that "[a] criminal defendant has a right to be represented by counsel that extends beyond the actual trial to every critical stage of the proceedings." Stone v. Commonwealth, 217 S.W.3d 233, 237 (Ky. 2007). "[A] motion to withdraw a guilty plea made before entry of the final judgment of conviction and sentence is a 'critical stage' of the criminal proceedings to which the right to counsel attaches." Commonwealth v. Tigue, 459 S.W.3d 372, 384 (Ky. 2015). "[P]rejudice may be presumed, and a per se Sixth Amendment violation may thus be found, when there has been a complete denial of counsel . . . at a critical stage of the criminal proceeding . . . or when counsel is burdened by an actual conflict of interest[.]" Id. at 385 (internal quotation marks and citations omitted).
Beckley argues there is an inherent conflict when a defendant is represented at a hearing on a motion to withdraw a guilty plea by the same attorney that negotiated the plea, citing Tigue, 459 S.W.3d at 388. He contends Miller was conflicted because the motion to withdraw pitted his interests against hers: she had to "defend her candor to the court about the plea's voluntariness during the guilty plea hearing while trying to argue that the plea was involuntary."
First, our Supreme Court rejected the assertion that an inherent conflict exists when the same attorney represents a defendant in proceedings to enter and withdraw a guilty plea in Dorsey v. Commonwealth, 565 S.W.3d 569, 574-77 (Ky. 2018). Second, Beckley was not denied his right to counsel. Even assuming Miller had a conflict of interest, Beckley's rights were adequately represented by Baylon, who questioned Miller on his behalf. Anticipating a potential conflict if Miller were called to testify about the circumstances surrounding the entry of the plea, two attorneys from the DPA appeared to represent Beckley at the hearing on the motion to withdraw. There are no allegations or evidence that Baylon's representation of Beckley at the hearing was burdened by a conflict of interest.
While Beckley's appellant brief refers to earlier statements made at his Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), hearing that he felt Baylon was working against him and that her lack of communication led him to misread people, there is no claim of any actual conflict at the time of the hearing on the motion to withdraw, or that Baylon's performance was in anyway deficient, or that Beckley was prejudiced by her performance.
Third and finally, Tigue is factually distinguishable from this case. In Tigue, there was an actual conflict in defense counsel's representation of the defendant calling into question the voluntariness of the plea. Tigue alleged his counsel coerced him into entering the plea by refusing to prepare a defense. Here, Beckley alleged his plea was involuntary due to family pressure, not counsel's performance. Tigue's counsel also refused to assist him in attempting to withdraw his guilty plea whereas Miller helped Beckley prepare for the hearing and ardently advocated for withdrawing his plea.
Further, Tigue's allegation of coercion created an actual conflict of interest at the hearing on the motion to withdraw because "[w]hen a defendant ma[kes] a claim of coercion during his plea withdrawal hearing . . . his accusation place[s] his attorney in the position of having to defend himself, and potentially to contradict [the defendant], in open court." Tigue, 459 S.W.3d at 387 (internal quotation marks and citation omitted). Because Beckley's claim of coercion concerned his family, Miller was not put in a position where she had to defend herself or contradict Beckley; thus, there was no actual conflict.
Rather than contradict Beckley, Miller confirmed her awareness of the family pressure Beckley was experiencing around the time of the guilty plea. She readily admitted she was unaware of the level of pressure he felt or that it influenced his decision to plead guilty. And while she believed his decision to plead guilty was voluntary at the time, she now believed it was not. Miller urged the court to allow Beckley to withdraw his guilty plea because she "believe[d] her client."
Simply put, "[Beckley] did have competent representation during the hearing to withdraw his guilty plea and counsel was not placed at odds with representing [Beckley]'s interests, i.e., [s]he was not laboring under a conflict." Dorsey, 565 S.W.3d at 574. The trial court did not err in denying Beckley's motion to withdraw his guilty plea.
For all the foregoing reasons, the order of the Campbell Circuit Court is affirmed.
ALL CONCUR.