Opinion
No. 2000-CA-001699-MR.
May 24, 2002.
Appeal From Henderson Circuit Court, Honorable Stephen A. Hayden, Judge, Action No. 97-CR-00088.
Tad Thomas, Louisville, Kentucky, Brief and Oral Argument for Appellant.
Albert B. Chandler, III, Attorney General, John E. Zak, Assistant Attorney General, Frankfort, Kentucky, Brief for Appellee.
Dennis W. Shepherd, Assistant Attorney General, Frankfort, Kentucky, Oral Argument for Appellee.
OPINION
William Antonio Skinner has appealed from a judgment of conviction and sentence entered in the Henderson Circuit Court on June 28, 2000, which convicted him pursuant to a guilty plea of burglary in the third degree, theft by unlawful taking over $300.00, and unlawful imprisonment in the first degree. At Skinner's sentencing hearing, the trial court denied his motion to withdraw his guilty plea, denied his motion for probation and sentenced him to prison for a term of five years. Having concluded that the trial court abused its discretion by refusing to allow Skinner to withdraw his guilty plea, we reverse and remand.
Kentucky Revised Statutes (KRS) 511.040.
On May 8, 1997, the Henderson County grand jury indicted Skinner for seven separate offenses related to an alleged robbery and kidnapping. Skinner was convicted by a jury of one count of robbery in the first degree, one count of burglary in the first degree, and one count of kidnapping. On appeal to this Court, Skinner's convictions were reversed on the grounds that the Commonwealth's Attorney, during the trial, impermissibly commented on Skinner's post-arrest silence. Skinner's case was remanded for a new trial.
Skinner was acquitted of the other charges.
Skinner v. Commonwealth, (Case No. 1997-CA-002376).
Upon remand, Skinner and the Commonwealth entered into a plea agreement which provided that he would plead guilty to the amended charges of burglary in the third degree, theft by unlawful taking over $300.00, and unlawful imprisonment. The Commonwealth agreed to recommend that Skinner receive a five-year prison sentence on each conviction, and that his sentences run concurrently and be probated.
At a hearing on May 11, 2000, the Henderson Circuit Court accepted Skinner's plea of guilty and scheduled a sentencing hearing for June 12, 2000. After he had entered his guilty plea but before his sentencing hearing, Skinner was indicted by the Henderson County grand jury for the unrelated offense of trafficking in marijuana within 1,000 yards of a school. As a result of the new indictment, the trial court continued Skinner's sentencing hearing until June 26, 2000.
At the sentencing hearing on June 26, 2000, Skinner's counsel orally moved the trial court to allow Skinner to withdraw his guilty plea. Apparently, Skinner was interested in negotiating a new plea agreement so the new charge and the previous charges could be resolved together. The trial court denied Skinner's motion and proceeded with the sentencing hearing. As promised the Commonwealth recommended that Skinner receive three, five-year sentences and that the sentences run concurrently. The Commonwealth also recommended pursuant to "the original offer" that Skinner receive probation pursuant to the standard terms and conditions under Kentucky law. In support of a probated sentence, Skinner produced evidence of gainful employment in California and noted his jail-time credit of approximately 260 days. After considering the evidence produced at the hearing, including the presentence investigation report, the Henderson Circuit Court denied Skinner's motion for probation and sentenced him to prison for a term of five years on each conviction, with the sentences to run concurrently. Upon learning that he would not receive probation, Skinner once again orally moved the trial court to allow him to withdraw his guilty plea. The motion was denied and the judgment of conviction and sentence was entered on June 28, 2000. This appeal followed.
Skinner claims that the trial court erred when it denied this motion for probation and then denied his motion to withdraw his guilty plea. Skinner argues that RCr 8.10 and Kentucky case law require the trial court to inform a defendant of its decision not to follow the plea agreement and to allow him to withdraw his guilty plea if he so chooses.
Kentucky Rules of Criminal Procedure.
RCr 8.10 provides as follows:
At 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 [emphasis added].
If the court rejects the plea agreement, the court shall, on the record, inform the parties of this fact, advise the defendant personally in open court or, on a showing of good cause, in camera, that the court is not bound by the plea agreement, afford the defendant the opportunity to then withdraw the plea, and advise the defendant that if the defendant persists in his guilty plea the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement [emphasis added].
The court can defer accepting or rejecting the plea agreement until there has been an opportunity to consider the presentence report.
In Haight v. Commonwealth, our Supreme Court discussed the development and purpose of RCr 8.10. In an earlier appeal, Haight had "obtained reversal of his original death sentence on grounds that actions of the trial court had misled him into believing that there was a commitment from the court to impose a sentence other than death." In a second appeal, the Supreme Court denied Haight relief in his attempt to obtain "an extraordinary writ to require enforcement of the original plea agreement and to prevent any effort to secure the death penalty[.]" In the Haight trilogy, our Supreme Court has provided a helpful analysis of the factors to be considered in determining whether the trial court has abused its discretion in refusing to allow a defendant to withdraw his guilty plea.
Ky., 938 S.W.2d 243 (1996).
Haight v. Commonwealth, Ky., 760 S.W.2d 84 (1988).
Haight, 938 S.W.2d at 245.
Haight v. Williamson, Ky., 833 S.W.2d 821 (1992).
Haight, 938 S.W.2d at 245.
In Haight's first appeal, which applied RCr 8.10 before the 1989 amendment mandating that the trial court allow the defendant to withdraw his guilty plea after the trial court has rejected the plea agreement, the Supreme Court stated:
We have determined that appellant's guilty plea was defective and the trial court erred in overruling his motion to withdraw it.
A plea of guilty constitutes a waiver of several fundamental constitutional rights. In view of the importance of the rights being abandoned, to be valid the plea must be knowing, intelligent and voluntary. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). RCr 8.08 expressly prohibits acceptance of a guilty plea without a prior determination that it is voluntary.
An examination of Kentucky case law reveals no reluctance to confront the issue when the validity of a guilty plea is challenged and, in a proper case, vacate the judgment. We have previously held that a guilty plea by a defendant who appeared to be "confused about his need for an attorney, the seriousness of the charges, the possible penalties involved, . . ." was invalid. Maxwell v. Commonwealth, Ky., 602 S.W.2d 169 (1980). We have also held that a guilty plea entered upon the mistaken belief that a murder charge would be reduced to manslaughter "was not `voluntary' in a constitutional sense." Allen v. Walter, Ky., 534 S.W.2d 453 (1966). In a very significant case, Couch v. Commonwealth, Ky., 528 S.W.2d 712 (1975), this Court settled the question of whether failure of the trial court to follow the recommendation of the Commonwealth's Attorney rendered the guilty plea involuntary. We held that it did not, but gave notice that if the defendant was misled by the action of the trial court, refusal to allow withdrawal of his guilty plea would amount to an abuse of discretion.
. . .
While we have no difficulty concluding that appellant was misled by the ambiguous and confusing remarks of the trial court, the record does not demonstrate the existence of an outright commitment to impose a particular sentence. Just as we will not deprive appellant of his rights based upon misleading remarks, we will not bind the hands of the trial court and require enforcement of the agreement unless an unmistakable commitment is made.
Haight, 760 S.W.2d at 87-88.
In Haight's third appeal, the Supreme Court discussed the application of RCr 8.10 as follows:
By the 1989 amendment of RCr 8.10, upon the determination of a trial court that it will not follow the plea agreement made between the prosecutor and the defendant, the defendant has a right to withdraw the guilty plea without prejudice to the right of either party to go forward from that point. Commonwealth v. Corey, Ky., 826 S.W.2d 319 (1992). At the time of appellant's original guilty plea there was no such rule and upon a guilty plea, the only requirement upon a trial court was to sentence within the range provided by law. In Haight v. Commonwealth this Court determined that the plea agreement was fundamentally flawed. We believed the trial court made statements from which the defendant could have believed a commitment to a life sentence had been made. We corrected the trial court error and directed the parties to go back to the point of beginning and start all over. While RCr 8.10 as amended, effective August 28, 1989, had not yet been promulgated, we applied legal principles which had the same effect as the post-amendment RCr 8.10. Upon rejection of the plea agreement by the trial court, we directed the parties to start over, with the result being precisely what RCr 8.10 as amended would have yielded.
Id. at 251.
In other words, the current version of RCr 8.10 requires the trial court to permit a defendant to withdraw a guilty plea if the court rejects the terms of the plea agreement. While the trial court has the sole discretion in deciding whether to accept or reject a plea agreement, the trial court must permit a defendant the opportunity to withdraw his guilty plea if the trial court deviates from its terms. The purpose of the rule is "to eliminate the possibility of arbitrary or freakish sentencing and validate honest plea bargaining between the Commonwealth and the defendant while reserving unto the trial court the final decision as to sentencing."
Kennedy v. Commonwealth, Ky.App., 962 S.W.2d 880, 882 (1997).
Id. at 882.
Corey, supra at 321.
Skinner insists that the condition of his plea agreement which required the Commonwealth to recommend that he receive probation was critical to his decision to enter a guilty plea. While some other promise might be less critical to the plea-bargaining process, we believe it is unassailable that the promise of a probated sentence must be considered as a major inducement for any criminal defendant to enter a guilty plea. From our review of the videotape of the guilty plea hearing and the sentencing hearing, it is apparent that Skinner was genuinely surprised by the trial court's denial of his motion for probation and its deviation from what he considered to be a critical condition of the plea agreement.
At the guilty plea hearing, the trial court made a determined effort to get the two crime victims to state on the record and under oath that they agreed with the Commonwealth's recommendations in the plea agreement, which included Skinner's five-year sentence being probated. In stating the terms of the plea agreement, the Assistant Commonwealth's Attorney specifically stated that it recommended that the charges be amended, that Skinner receive three, five-year sentences to run concurrently, and that the sentences would be probated. One of the victims was in court; and after being sworn by the trial judge, he stated that he was in agreement with the Commonwealth's recommendations. The trial judge explained to this victim that one of the reasons the Commonwealth was recommending probation was because Skinner had already served approximately 260 days of his sentence. After a recess, the Assistant Commonwealth's Attorney stated on the record that he had spoken by telephone with the second victim and she was also in agreement with the Commonwealth's recommendations. In summarizing the terms of the plea agreement, the Assistant Commonwealth's Attorney specifically stated, "at time of sentencing Mr. Skinner would be probated."
While advising Skinner of his constitutional rights, the trial judge told him that he could withdraw his guilty plea if he changed his mind and anything he had previously said could not be used against him. Later during the hearing, after the Commonwealth restated its recommendations, the trial judge told Skinner that he was not required to follow those recommendations. However, at this point, the trial judge made no reference to Skinner's right to withdraw his guilty plea. The trial judge also told Skinner that he was obligated at the time of sentencing to consider probation and conditional discharge, but that Skinner effectively had no recourse on appeal from that decision. Skinner then pled guilty. At the conclusion of Skinner's guilty plea hearing, the trial court agreed to amend the terms of Skinner's bond so he would not have to report to the court and he could travel to California to begin a new job.
This Court in Kennedy, supra, reversed a conviction when the trial court refused to follow the Commonwealth's recommendations made pursuant to the plea agreement that Kennedy's prison sentences would run concurrently rather than consecutively. While recognizing that the trial court in Kennedy had "specifically informed the appellant that the decision to run the sentences concurrently or consecutively was wholly a matter of the court's discretion[,]" this Court also noted that the trial court had "advised him that if it chose to reject the plea agreement [he could] withdraw his plea and proceed to trial." Similarly, in the case sub judice, the trial judge made conflicting and confusing statements concerning Skinner's rights. Skinner was advised by the trial court at one point that he could withdraw his guilty plea, and at another point he was told that the granting of probation was solely within the discretion of the trial court, but he was never told that he could withdraw his guilty plea if the trial court did not follow the plea agreement.
Kennedy, supra at 881.
RCr 8.10 does not sanction capriciousness by a court to entrap a defendant in a deal by granting the court unilateral power to alter a plea bargain without affording the defendant the right to abandon his plea. While the intervening indictment of Skinner doubtlessly altered the equation and caused the Commonwealth to become reluctant to recommend probation and the trial court to become reluctant to grant it, the record supports Skinner's understanding that he had been promised a probated sentence as part of his plea agreement. Under such circumstances, where a key term of the plea agreement has induced the defendant to enter a guilty plea, the defendant must be afforded the opportunity to withdraw his plea and be given his constitutionally-protected right to a jury trial.
Kennedy, supra at 882.
Having granted Skinner relief as to his first allegation of error, we find it unnecessary to address his alternative arguments concerning prosecutorial bad faith and the trial court's failure to fully consider his evidence in support of probation. The judgment of conviction and sentence of the Henderson Circuit Court is reversed and this matter is remanded with directions that Skinner be permitted to withdraw his guilty plea and to proceed to trial.
ALL CONCUR.