Opinion
NO. 2011-CA-002307-MR NO. 2011-CA-002308-MR
07-12-2013
NATHAN BARTHOLOMEW FLERLAGE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Thomas M. Ransdell Assistant Public Advocate Frankfort, Kentucky BRIEFS FOR APPELLEE: Jack Conway Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEALS FROM BOONE CIRCUIT COURT
HONORABLE JAMES R. SCHRAND II, JUDGE
ACTION NOS. 10-CR-00224 & 10-CR-00226
OPINION
AFFIRMING
BEFORE: NICKELL, THOMPSON, AND VANMETER, JUDGES. NICKELL, JUDGE: Nathan B. Flerlage appeals from a Boone Circuit Court order denying his motion to withdraw his guilty pleas. Having reviewed the record, the briefs and the law, we affirm.
Flerlage was charged under two separate indictments which were treated as one case by the trial court. The charges on the first indictment included one count each of marijuana cultivation (five or more plants) while in possession of a firearm; possession of drug paraphernalia while in possession of a firearm; receiving stolen property; possession of a defaced firearm; and being a persistent felony offender in the second degree (PFO II) The charges on the second indictment included eight counts of possession of a handgun by a convicted felon and an additional eight counts of possession of a firearm by a convicted felon.
Kentucky Revised Statutes (KRS) 218A.1423, a Class C felony due to operation of KRS 218A.992(1)(a).
KRS 218A.500, a Class D felony due to operation of KRS 218A.992(1)(b).
KRS 514.010, a Class D felony.
KRS 527.050, a Class A misdemeanor.
KRS 527.040(2), a Class C felony.
KRS 527.040(2), a Class D felony.
Flerlage was also indicted separately by federal authorities, apparently on the same set of facts. He eventually entered a guilty plea to the federal charges.
Initially, Flerlage was represented by the same attorney in the state and federal proceedings. This attorney filed motions to withdraw in both cases after Flerlage became dissatisfied with his representation. Flerlage sent a letter opposing the motion to the Boone Circuit Court stating the federal judge had denied the attorney's motion to withdraw. He requested that, should the court grant the motion, his attorney be compelled to refund part of his fee so Flerlage could retain new counsel. The circuit court granted the motion to withdraw, and counsel from the Department of Public Advocacy (DPA) was appointed to represent Flerlage. The court did not order repayment of the fee.
Flerlage subsequently became dissatisfied with the representation he was receiving from his court-appointed attorney, Jason Gilbert, and eventually wrote another letter to the trial judge, alleging his current attorney's caseload did not allow him adequate time to research and investigate his case. He asked for appointment of competent and effective counsel.
The trial court treated the letter as a pro se motion to appoint new counsel, and held a hearing at which Flerlage stated his attorney was "really busy." He related an instance when his attorney failed to inform him of a plea offer until the day it was scheduled to be entered. Flerlage explained that he had been generally willing to accept the terms of the agreement, but felt he needed to consult with the attorney representing him on his federal appeal, and had been unable to contact that attorney on such short notice. The plea offer was later withdrawn by the Commonwealth, and replaced with a less favorable offer, and Flerlage believed his attorney was responsible. The trial judge determined Flerlage was still working with his attorney and never expressly ruled on the pro se motion to appoint new counsel.
Flerlage eventually accepted a plea offer under both indictments. Under the terms of the offer, the state prosecutor agreed to recommend all his sentences be served concurrently for a total sentence of ten years, and also agreed to recommend the ten-year sentence run concurrently with his federal sentence.
During the plea colloquy, Flerlage complained again about his appointed attorney. He repeated that he had trouble communicating with him because public defenders are overburdened, and that he had been unable to take advantage of the earlier, more advantageous plea offer from the Commonwealth because his attorney did not contact the prosecutor in time to accept the offer.
Flerlage's attorney responded that Flerlage had repeated contact with the DPA trial division director about his representation, and after investigating his complaints the director had not taken any action. He also stated his immediate supervisor, Rodney Barnes, did not review Flerlage's complaints because Barnes had a conflict of interest.
The trial judge told Flerlage he had the option of going to trial on the charges. Flerlage declined. He entered guilty pleas, which the trial judge found were knowingly, voluntarily, and intelligently made.
Prior to final sentencing, Flerlage sent another letter to the trial judge. He reminded the court that he had originally requested his prior counsel reimburse part of his fee as a condition of being allowed to withdraw, and he stated he would not have chosen his present attorney if he had been financially able to hire other counsel. He alleged his present counsel had missed nine appointments to speak with him at the jail and had refused to interview potential witnesses. Flerlage stated that when he brought this to Gilbert's attention, Gilbert replied, "Sorry, I don't have time to follow up on your requests; I am working on a murder case." He alleged that his Sixth Amendment rights had been violated due to his attorney's incompetence.
At sentencing, Flerlage was represented by a conflict attorney from DPA who informed the court that he had been appointed to assist Flerlage in filing a motion to withdraw the guilty pleas. A hearing was held on the motion, at which Flerlage and Jason Gilbert, his prior DPA attorney, testified. The trial judge ultimately denied the motion to withdraw the guilty plea, and sentenced Flerlage, in accordance with the plea agreement, to a total sentence of ten years' imprisonment, to be served concurrently with his federal sentence. This appeal followed.
Once a criminal defendant has pleaded guilty, he may move the trial court to withdraw the guilty plea, pursuant to RCr 8.10. If the plea was involuntary, the motion to withdraw it must be granted. However, if it was voluntary, the trial court may, within its discretion, either grant or deny the motion. Whether to deny a motion to withdraw a guilty plea based on a claim of ineffective assistance of counsel first requires "a factual inquiry into the circumstances surrounding the plea, primarily to ascertain whether it was voluntarily entered." The trial court's determination on whether the plea was voluntarily entered is reviewed under the clearly erroneous standard. A decision which is supported by substantial evidence is not clearly erroneous. If, however, the trial court determines that the guilty plea was entered voluntarily, then it may grant or deny the motion to withdraw the plea at its discretion. This decision is reviewed under the abuse of discretion standard. A trial court abuses its discretion when it renders a decision which is arbitrary, unreasonable, unfair, or unsupported by legal principles.Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky. App. 2004) (internal citations omitted).
When, as in this case, the defendant argues his plea was rendered involuntary due to ineffective assistance of counsel, the trial court is required
to "consider the totality of the circumstances surrounding the guilty plea and juxtapose the presumption of voluntariness inherent in a proper plea colloquy with a Strickland v. Washington [466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] inquiry into the performance of counsel." To support a defendant's assertion that he was unable to intelligently weigh his legal alternatives in deciding to plead guilty because of ineffective assistance of counsel, he must demonstrate the following:Id. (internal citations omitted).
(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.
The Commonwealth initially offered Flerlage a five-year sentence as part of a plea bargain. According to Flerlage, he was concerned about the effect accepting the plea offer would have on his federal appeal, so he asked Gilbert for a short extension of time to consult with the attorney handling his federal case. Flerlage claims the extension of time was given, but he was brought to court one day and informed by Gilbert that the offer had been changed from five to ten years' imprisonment. Flerlage was eventually able to contact his federal attorney who told him he had conferred with Gilbert and approved the five-year deal. Flerlage's recollection was that Gilbert had failed to inform the prosecutor he accepted the five-year offer. Allegedly, Gilbert later apologized, telling Flerlage he was working on a double homicide case and had forgotten to call the prosecutor. Flerlage contends his counsel's delays meant he was unable to accept the earlier, more advantageous plea offer from the Commonwealth.
Gilbert's testimony regarding this incident differed substantially from Flerlage's. According to Gilbert, Flerlage did not want to accept the other terms attached to the five-year deal—dismissal of the gun charges in return for a guilty plea to the drug charges. Flerlage wanted the opposite scenario—to plead guilty to the gun charges and have the drug charges dismissed. Gilbert testified he conveyed this counter-offer to the prosecutor, but the prosecutor would not agree to the altered terms. Flerlage chose not to accept the offer.
The trial court found Flerlage's claim to be incredible, based on Gilbert's testimony and Flerlage's federal plea agreement (which is not in the record before us). Under these circumstances, we must defer to the findings of the trial court. "[E]ven though, both parts of the Strickland test for ineffective assistance of counsel involve mixed questions of law and fact, the reviewing court must defer to the determination of facts and credibility made by the trial court." Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008). "The test for a clearly erroneous determination is whether that determination is supported by substantial evidence." Id. Gilbert's testimony constitutes substantial evidence supporting the trial court's finding. Furthermore, we must assume the federal plea agreement is similarly supportive of the trial court's findings, because "[i]n the absence of the evidence in the record, we must presume that the judgment of the trial court was supported by the evidence." Miller v. Commonwealth, Dept. of Highways, 487 S.W.2d 931, 933 (Ky. 1972).
In a related argument, Flerlage contends the Commonwealth should honor its initial offer of a five-year sentence, and the Commonwealth should not have been permitted to break its "agreement" to offer Flerlage a five-year sentence simply because his attorney did not convey his acceptance of the offer in a timely manner. He argues he should be placed in the same position he would occupy if his attorney had been performing properly, and be allowed to accept the offer of five years. He claims he felt he was forced to take the offer of ten years to avoid getting even more time, and consequently his guilty plea was not a voluntary act.
The Commonwealth contends this argument is unpreserved because at no time did Flerlage argue he should be allowed to accept the five-year offer, only that his attorney's failure to relay the offer had pressured him to accept the ten-year offer. In light of the fact that the trial court did not commit clear error in finding Gilbert's version of the events more credible, this argument is rendered moot.
In any event, Flerlage's argument is ill-founded because a plea offer standing on its own is unenforceable.
"[A] plea bargain agreement which has not been consummated is not enforceable unless there has been a reliance on the bargain by the defendant which has resulted in detriment to him, and by 'detriment' we doCope v. Commonwealth, 645 S.W.2d 703, 704 (Ky. 1983). "If the prosecutor makes a plea bargain offer and withdraws it before it is accepted or detrimentally acted upon by the defendant, the defendant will not be heard to complain that his constitutional rights to due process and effective counsel have been violated." Commonwealth v. Reyes, 764 S.W.2d 62, 64-65 (Ky. 1989). In this case, the five-year offer was withdrawn before it was accepted, and Flerlage has not shown he relied on the offer to his own detriment.
not mean a longer sentence. To hold otherwise would abrogate the plea bargain system."
Next, Flerlage argues his attorney's performance was adversely affected by a conflict of interest. Gilbert's immediate supervisor, Barnes, was representing a defendant in a double homicide case in which Flerlage was scheduled to testify for the prosecution. Flerlage argues Barnes and Gilbert wanted him to plead guilty to discredit him as a witness against Barnes's client. He claims Gilbert had a motive to assist Barnes because Barnes was in a position to help or hinder Gilbert's professional career.
Gilbert testified he informed Flerlage his boss was representing the defendant in the homicide case. If Flerlage had objected to his representation for that reason, Gilbert testified he would have informed the court and made arrangements for a conflict attorney to represent Flerlage.
The "constitutional predicate" for an ineffective assistance of counsel claim based upon a conflict of interest is that defense counsel "actively represented conflicting interests." Sanborn v. Commonwealth, 892 S.W.2d 542, 548 (Ky. 1994) (quoting Beet v. Collins, 986 F.2d 1478, 1486 (5th Cir. 1993)). The burden of establishing an actual conflict is on the defendant, who must also show the conflict adversely affected the performance of his lawyer. Epperson v. Commonwealth, 809 S.W.2d 835, 844 (Ky. 1990); Kirkland v. Commonwealth, 53 S.W.3d 71, 75 (Ky. 2001). Flerlage has failed to meet this burden because his claims are purely speculative.
[T]he constitutionalized concern that counsel not serve "two masters" is simply not implicated when a potential conflict of interest fails to develop into an actual conflict of interest. A theoretical or merely speculative conflict of interest will not invoke the protections of the Sixth Amendment. Indeed, as a threshold matter, the defendant must demonstrate that the defense attorney was required to make a choice advancing his own interests to the detriment of his client's interests.Sanborn, 892 S.W.2d at 549 (quoting Beets, 986 F.2d at 1486). Gilbert informed Flerlage of the potential conflict of interest with Barnes. Flerlage has failed to show Gilbert's performance was adversely affected by this purported conflict of interest, or that Gilbert coerced his client to accept the Commonwealth's plea offer to Flerlage's detriment.
Finally, Flerlage argues his guilty plea was not knowing, intelligent and voluntary because the Commonwealth reneged on its promise to run the ten-year sentence concurrently with his federal sentence. He contends the state of Kentucky has kept him as a state prisoner and not turned him over to federal authorities to begin service of his federal sentence. Consequently, his sentence in this case is being served consecutively to his federal sentence, because the federal authorities have no obligation to give him credit for any time spent in state custody toward service of his federal sentence. This argument was never raised before the trial court. "The Court of Appeals is without authority to review issues not raised in or decided by the trial court." Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989).
The order denying Flerlage's motion to withdraw his guilty plea is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Thomas M. Ransdell
Assistant Public Advocate
Frankfort, Kentucky
BRIEFS FOR APPELLEE: Jack Conway
Attorney General of Kentucky
M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky