Julius D. Thomas v. Commonwealth of Kentucky ( 2017 )

IMPORTANT NOTICE
NOT ·To BE PUBLISHED OPINION
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THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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
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RENDERED: NOVEMBER 2, 2017
NOT TO BE PUBLISHED
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2016-SC-000593-MR · [5) ~LI ~u f.z.7/11 !(,;,. 14J,..,DC
JULIUS D. THOMAS APPELLANT
· ON APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE MARY M. SHAW, JUDGE
NO. 13-CR-003085
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
. AFFIRMING
App~llant, Julius D. Thomas, appeals from the Jefferson Circuit Court
judgment convicting him of incest, third-degree rape, and third-:degree sodomy,
and sentencing him to prison for a total of twenty years. The trial court
seritented Appellant in accordance with his penalty agreement with the
Commonwealth. Appellant claims the trial court erred by not allowing him to
withdraw the penalty agreement. As grounds for relief, he claims that he did
not voluntarily and intelligently enter the agreement, and alternatively, the trial
court abused its discretion by denying his :rpotion.
For reasons stated below, we affirm the judgment of the Jefferson Circuit
Court.
I. FACTUAL AND PROCEDURAL BACKGROUND
A jury found Appellant guilty of incest, third-degree rape, and third-
· degree sodomy. The next day, knowing that the jury could recommend a
sentence of up to thirty years in prison, Appellant 189 S.W.3d
558, 570 (Ky. 2006) (citing Rodriguez v. Commonwealth, 87 S.W.3d 8, 10 (Ky.
2002); Elkins v; Commonwealth, 154 S.W.3d 298, 300 (Ky. App. 2004)).
For a waiver of a constitutional right to be valid, the defendant in a
criminal prosecution must voluntarily, knowingly, and· intelligently waive the ·
right. Brady v. United States, 397 U.S. 742, 748 (1970); King v. Commonwealth,
374 S.W.3d 281, 290 (Ky. 2012) (citations omitted). Before accepting a waiver,
the trial court must "make an affirmative showing, on the record, that [a waiver
of a constitutional right] is voluntary and intelligent." Edmor:ids, 189 S.W.3d at
565 (citing Boykin v. Alabama, 395 U.S. 238, 241-242 (1969)). A waiver is
intelligent when "done with sufficient awareness of the relevant circumstances
and likely consequences." Brady, 397 U.S. at 748 (citations omitted). A
finding of an intelligent waiver of the right to appeafas part of a sentencing
agreement is supported when the defendant is advised by competent counsel
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and is made aware of the rights he is waiving, and when there is nothing to
indicate that the defendant was incompetent, or otherwise not in control of his
mental faculties. See id. at 756. A waiver is voluntary if the defendant is not
induced by threats or by misrepresentations by the Commonwealth or the trial
court. Id .. at 755; Edmonds, 189 S.W.3d at 565. Appellant's waiver was not
invalid in either respect.
In his colloquy with the trial court before the formal entry of the penalty
agreement, Appellan:t acknowledged that 1) he was not coerced into the r
agreement; 2) he y.rtderstood- he was giving up the penalty-ph~se rights to jury
. sentencing, to present witnesses and evidence, and to not testify; and 3) he
understood he was giving up the right to appeal. Appellant also affirmed he
agreed with the Commonwealth's recommendation that he serve 20 years for
incest, 5 years for rape, and~ years for sodomy, to be served concurrently.
Additionally, Appellant affirmed he understood his parole eligibility status, his
legal responsibilities as a sex offender, and that upon release from prison, he
was subject to conditional discharge. for five years. "Solemn declarations in
open court carry a strong presumption of verity." Blackledge v. Allison, 431 .
U.S. 63, 97 (1977).
' evidence to suggest that he was not truthful in his
Appellant offers no
colloquy with the court. He says only that he was rushed in· deciding whether
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to accept the offered sentence of twenty years and eliminate -the risk of a
greater penalty that the jury could impose. We recognize that Appellant had
relatively little time in which to make a serious decision in the midst of an
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ongoing trial. But the urgency inherent in such circumstances does not equate
. to coercion. There is no evidence that anyone threatened him or that,his
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acceptance of the agreement was induced by anything other than the benefit he ·
received from his bargain. With or without time constraints, having to choose
between the strong probability of a lesser sentence, at the price of waiving his
constitutional right to appeal, and the possibility that a jury would set a much
greater sentence, does not render the waiver compulsory and involuntary. See
Brady, 397 U.S. at 750-751; see also Edmonds, 189 S.W.3d at 570.
We see nothing to suggest "that [Appellant] did not or could not, with the
help of counsel, rationally ~eigh the advantages of [the jury deciding his
.....
penalty]
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against the advantages of [entering the sentencing
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agreement]."
.
Brady, 397 U.S. at 750. When questioned by.the trial court at the time of his
waiver, Appellant gave no indication that he lacked an essential understanding
of the situation or an awareness of the consequences of the waiver of his rig~t
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to .appeal.
Substantial eviaence supports the trial court's conclusion that Appellant
voluntarily and intelligently entered the sentencing agreement.
B. The trial court did not abuse its discretion when it declined to permit
Appellant to withdraw from the penalty agreement.
Appellant argues that even if he voluntarily and intelligently entered the
; sentencing agreement, the trial court abused its discretion when denying his
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motion to withdraw from it. He argues that granting his motio_n to withdraw
from the agreement would have been the fair and just thing to do.
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He argues that because a penalty agreement_to forgo jury sentencing is
simply one aspect of a plea agreement, this Court should apply to his
sentencing,agreement the seven factors identified in United States v..
Hockenberry, 730 F.3d 645, 662 (6th,.Cir. 2013),
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as fair and just reasons for
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allowing a federal defendant to withdraw a guilty plea.1 Under Federal Rules of
Criminal Procedure l l(d)(2)(B) a guilty plea may be withdrawn if "the defendant
can. show a.fair andjust reason for requesting the withdrawal." Although th~
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Hockenberry factors may touch on considerations relevant to determining
whether a waiver of a constitutional right is valid, we decline to alter our
existing precedent for determining wh~ther the trial court erred when denying a
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motion· to withdraw from an agreement in which a defendant waived a
constitutional right. Consequently, we next.address whether t~e trial court's
decision to deny Appellant's motion was arbitrary, unreasonable, unfair, or
_____ unsupported by sound legal principles. Commonwedlth v. English, 993 S. W .2d
941, 945 (Ky. 1999)._ _/
Citing Parson v. Commonwealth, 144 S.W.3d 775, 782-785 (Ky. 2004),
the. Commonwealth points out that becaµse it detrimentally relied upon the
agreement when it waived its opportunity to se.ek a gre~ter sentence and
1 The seven, non-exclusive Hockenberry factors are:
(1) the amount of time that elapsed between the plea and the motion to
withdraw it; (2) the presence (or absence) of a valid reason for the failure
to move for withdrawal earlier in the proceedings; (3) whether the
defendant has asserted or mfilntained his innocence; (4) the
circumstances underlying the entry of'the guilty plea; (5) the defendant's
.nature and background; (6) the degree to which the defendant has had
prior experience with the criminal justice system; and (7) potential
prejudice to the government if the motion to withdraw is granted.
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released the jury that had heard the guilt-phase evidence, Appellant should not
be permitted to withdraw from his waiver. If the agreement were to be set
aside, before an appeal of the guilt phase could be heard., the trial court would
have to complete a penalty phase trial using a new jury' before whom the guilt-
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phase ·evidence would be replicated.
Appellant's agreement with the Commonwealth is a contract. We have
made clear that if an "offer is made by .the prosecution and accepted by the
accused, either by entering a plea or by taking action to his detriment in
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reliance on the offer, then the agreement becomes binding and enforceable."
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Commonwealth v. Reyes, 764 S.W.2d 62,, 65 (Ky. 1989). A defendant is entitled
to insist on the benefit of his bargain. See Santobello v. New York, 404 U.S.
257, 261-262 (1971). When, as in this case, there has been no unfairness or
constitutional infirmity "in securing agreement between an accused and a
prosecutor," id. at 261, there is no valid or compelling reason why Appellant
should not likewise be held to his bargain in accordance with the general laws
applicable to contracts.
When Appellant entered into negotiations with the Commonwealth, he
was left with little bargaining power. One thing he could offer in exchange for a
twenty-year sentence recommendation was his right to appeal. He decided to
make a deal- rather than take a chance that the jury would recommend a
greater sentence. The Commonwealth, relied upon Appellant's promise and
kept its promise. Appellant "was fully aware of the likely consequences when
he [entered the sentencing· agreement]; it is not unfair to expect him to live with
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those consequences now." Mabry v. Johnson, 467 U.S. 504, 511 (1984). We ·
cannot say that the trial court's _denial of Appellant's motion to withdraw from
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the sentencing agreement was arbi~rary, unreasonable, unfair, or unsupported
by sound legal principles. The trial court did not abuse its discretion.
III. CONCLUSION
For the foregoing reasons, the judgment of the Jefferson Circuit Court is__../
'· affirmed.
All sitting. All concur.
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COUNSEL FOR APPELLANT:
Linda Roberts Horsman
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Andy Beshear
Attorney General of Kentucky
Todd Dryden Ferguson I
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Assistant Attorney General
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