Ronald Triplett v. Commonwealth of Kentucky ( 2020 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
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RENDERED: DECEMBER 17,2020
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2019-SC-0331-MR
2019-SC-0333-MR
RONALD TRIPLETT APPELLANT
ON APPEAL FROM MONTGOMERY CIRCUIT COURT
V. HONORABLE WILLIAM EVANS LANE, JUDGE
NOS. 16-CR-00164 AND 17-CR-00116
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Ronald Triplett entered a conditional guilty plea to five indicted charges:
two counts of first-degree rape and one count each of first-degree sodomy,
kidnapping, and first-degree criminal possession of a forged instrument. A
jury, empaneled to recommend his sentence, recommended Triplett serve
eighty-five (85) years in prison. The circuit court ultimately sentenced Triplett
to serve seventy (70) years in accordance with Kentucky law.1
Triplett raises four issues on appeal. He claims the circuit court erred
by: 1) denying his motion to suppress; 2) denying his motion to withdraw his
guilty plea; 3) allowing the jury to hear unduly prejudicial details about his
1 The circuit court initially sentenced Triplett to eighty-five years in prison and
the length of his sentence was part of Triplett’s appeal. However, shortly after Triplett
filed his appellate brief, the circuit court entered an amended judgment sentencing
Triplett to seventy years in prison, the maximum allowed by Kentucky Revised Statute
(KRS) 532.110, rendering the issue moot. With leave of this Court, the
Commonwealth supplemented the record with the amended judgment.
prior offenses; and 4) failing to instruct the jury that his sentences may run
partially consecutively and partially concurrently. Upon review, we affirm the
Montgomery Circuit Court’s amended judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2019, Triplett entered a conditional guilty plea in
Montgomery Circuit Court to all charges contained in 16-CR-00164 (one count
each of first-degree rape, first-degree sodomy, kidnapping, and first-degree
criminal possession of a forged instrument) and 17-CR-00116 (one count first-
degree rape), reserving the right to appeal the circuit court’s pretrial denial of
his motion to suppress evidence. The Commonwealth and Triplett requested
jury sentencing. The jury heard the following evidence.
In late July 2016, J.B. was walking along a Mount Sterling, Kentucky
street. A man, later identified as Ronald Triplett, driving a black Cadillac
Escalade, pulled up beside her and asked if she needed a ride. Triplett told
J.B. he would pay her to get inside his vehicle. J.B. declined. Triplett drove
away, and J.B. continued to walk. Triplett later walked up behind her, put a
hand over her mouth, and forcibly took her through a wooded area back to the
Escalade.
Triplett drove J.B. to a building and forced her up a flight of stairs to a
door that had multiple locks on both the inside and outside. The apartment
inside contained a bed and J.B. saw a gun in the apartment. Triplett raped
J.B. vaginally and anally. He forced her to perform oral sex on him and he also
performed oral sex on her. Afterward, Triplett dropped J.B. off in the area
where she had been walking. J.B. called 911 and was able to give a partial
2
license plate number, described her assailant, and when an officer arrived,
showed him the building in which Triplett raped and sodomized her. The
officer transported J.B. to the local hospital and the medical staff examined her
for sexual assault.
The police determined Triplett was associated with the building and
discovered he owned a black Escalade. The partial license plate number given
by J.B. matched the first four numbers of Triplett’s vehicle. When the police
executed a search warrant for the building, they found an apartment inside
and, as described by J.B., the door had multiple latches and locks on both
sides. The police discovered surveillance equipment inside. The police also
found a fake but realistic looking handgun, a hidden camera, handcuffs, ankle
shackles, a strap-on dildo, 15 counterfeit $100 bills, and latex gloves. The
police contacted the Bureau of Alcohol, Tobacco, and Firearms (ATF) and
requested its electronic crime branch examine the electronic equipment found
in the building. The police sought an arrest warrant for Triplett and an officer
was dispatched to Triplett’s home.
Mrs. Triplett told the police that her husband had been gone for about
three days and she had not seen him. She said Triplett told her he needed to
come up with some money for an attorney because after picking up a girl and
having sex with her, the girl said she would tell authorities he raped her if he
did not give her money. The police tracked Triplett to a hotel room in Livonia,
Michigan. Livonia police officers arrested Triplett in the hotel parking lot. The
officers also took possession of the electronic equipment, computers, jump
3
drives, videos, and discs in Triplett’s hotel room.2 Kentucky authorities
obtained a search warrant and retrieved the items from the Michigan
authorities upon extraditing Triplett back to Kentucky.
One of the items seized from the hotel room was a video of the sexual
assault of J.B. Portions of that video were later shown to the jury.
After Triplett was returned to Kentucky, the police interviewed him.
Triplett admitted he had engaged in sexual acts with J.B. but maintained the
acts were consensual; he declined to elaborate. Triplett also disclosed details
about his prior criminal history. The audio-taped interview was played for the
jury.
Besides the video of J.B.’s sexual assault, the ATF officers discovered
another video that had been made in the same building. The video showed
Triplett having sex with an unconscious woman with a distinctive tattoo. The
police were eventually able to identify the woman as S.E. When S.E. was
shown the video, she confirmed she was the woman in the video, but she had
no recollection of what had occurred when Triplett raped her. Discussing that
time period, S.E. said she woke up the next morning behind a grocery store
and had pain and blood in her groin area but did not know what had
happened. A portion of the video depicting S.E.’s sexual assault was played for
the jury.
J.B. and S.E. read victim impact statements to the jury. Triplett testified
in his own defense, and his wife also testified on his behalf.
2 These items were removed without a warrant. They were stored in the Livonia
Police Department’s evidence room.
4
The jury recommended Triplett serve twenty years for the rape of S.E.;
twenty years for the rape of J.B.; twenty years for the sodomy of J.B.; twenty
years for the kidnapping of J.B.; and five years for the criminal possession of a
forged instrument. The jury further recommended that all sentences run
consecutively to each other for a total prison sentence of eighty-five years.
After the sentencing recommendation but prior to final sentencing,
Triplett moved to withdraw his guilty plea. The circuit court conducted an
evidentiary hearing and then denied the motion. The circuit court imposed the
jury’s recommended sentence of eighty-five years, but subsequently amended
Triplett’s sentence to seventy years in prison.
Additional facts are presented below as necessary.
ANALYSIS
I. The Circuit Court Did Not Err by Denying Triplett’s Motion to
Suppress Evidence.
Triplett moved the circuit court to suppress all evidence found in the
Livonia, Michigan hotel room. Det. Holznagle, a detective with the Livonia
Police Department, testified at the suppression hearing. He recounted
receiving a communication from the Montgomery County, Kentucky Sheriff’s
Office that Triplett was wanted on charges of rape, sodomy, and kidnapping,
and that Triplett was believed to be in Livonia, Michigan and driving a black
Escalade for which the license plate number was provided. After 11:30 p.m. on
August 3, 2016, a Livonia officer located the Escalade in the parking lot of a
hotel; other officers soon arrived. Officers spoke with the front desk clerk and
learned Triplett’s room number. At some point, Det. Holznagle contacted the
hotel to verify Triplett had rented a room there for the evening; the clerk
5
informed him that Triplett checked in on August 3 and was due to check out
on August 4.
While the officers were standing in the parking lot, about ten feet away
from Triplett’s room, Triplett approached the officers. The officers confirmed
Triplett’s identity and arrested him around midnight. Det. Holznagle testified
that while being arrested, Triplett expressed with a sense of urgency that he
had belongings in the hotel room, knowing he was going to be arrested and
sent back to Kentucky. Det. Holznagle was under the impression, given his
experience with others and given his own attitude for protecting personal
property, that Triplett did not want the belongings left unattended; Holznagle
knew the local jail would not allow Triplett to take his personal belongings to be
booked with him.
Additionally, once the hotel clerk learned the reason Triplett was being
placed under arrest, the clerk informed an officer that the hotel wanted Triplett
evicted. The officers entered the room soon thereafter.
Det. Holznagle testified that the Livonia Police Department has a good
relationship with the hotel, arrests at the hotel are not uncommon, and it is a
common procedure for the hotel to request the Livonia Police Department to
evict an individual. The officers followed usual hotel guest eviction procedure,
gaining access to the room through the clerk’s assistance, although he could
not recall if the clerk let the officers in Triplett’s room or provided a key to the
officers.
The officers took possession of Triplett’s belongings and inventoried
them. As customary and in accordance with office policy, the inventoried items
6
were photographed, a step taken to counter an evicted guest’s future claims of
property damage due to securing the property. Triplett’s non-monetary value
items, such as his clothes and suitcases, were placed in his Escalade which
was stored in the police department’s parking lot. Triplett’s monetary value
items, like computers, cell phones and perishable items, had an evidence tag
placed on them and were stored in the police department’s temperature-
controlled evidence room for safekeeping, a measure against civil liability for
leaving an arrestee’s monetary value items in a hotel room.
Det. Holznagle testified that if the police did not secure Triplett’s
belongings, the hotel could have stored Triplett’s belongings under the front
desk for some unknown period of time, the hotel may or may not have
attempted to find the owner, and the items could have been damaged, but
since Triplett was arrested by the Livonia police at the hotel, the officers
exercised due care and caution to avoid civil liability. None of the items were
searched by the Livonia police. Det. Holznagle testified that the Livonia officers
were unaware of the items in Triplett’s room and had no knowledge of any
evidence which may have been inside the room. Triplett did not testify at the
suppression hearing.
The circuit court denied the suppression motion and concluded the
warrantless seizure3 of Triplett’s property from the hotel room, falling within
the proffered exceptions of consent or inventory, was reasonable and did not
3 The circuit court noted that the electronics and expensive items were not
searched by the Livonia officers and Kentucky officers did not search the electronics
until after the procurement of a search warrant.
7
impinge improperly on Triplett’s expectation of privacy especially in light of
Triplett’s concern about his property.
Triplett contends that the Michigan police violated his reasonable
expectation of privacy when they entered the hotel room, performed an
inventory search, and seized his property without a warrant. Triplett
challenges both the circuit court’s findings of facts and conclusions of law.
When reviewing a ruling on a suppression motion, we generally employ a
two-step process. First, findings of fact are reviewed and will not be set aside
unless they are clearly erroneous. Kentucky Rule of Civil Procedure (CR)
52.01; Simpson v. Commonwealth, 474 S.W.3d 544, 547 (Ky. 2015). Findings
of fact are not clearly erroneous if they are supported by substantial evidence.
Commonwealth v. Deloney, 20 S.W.3d 471, 473 (Ky. 2000). Substantial
evidence is “evidence of substance and relevant consequence having the fitness
to induce conviction in the minds of reasonable men.” Owens–Corning
Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998) (citations omitted).
Due regard is given to the opportunity of the circuit court to judge the
credibility of the testifying officer and to assess the reasonableness of the
officer’s inferences. Commonwealth v. Whitmore, 92 S.W.3d 76, 79 (Ky. 2002)
(“The Ornelas[4] court recognized that police may draw inferences of illegal
activity from facts that may appear innocent to a lay person and that a
reviewing court should give due weight to the assessment by the trial court of
the credibility of the officer and the reasonableness of the inferences.”).
4 Ornelas v. United States, 517 U.S. 690 (1996).
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Second, the circuit court’s application of the law to the facts is reviewed de
novo. Simpson, 474 S.W.3d at 547.
Here, the circuit court’s finding of fact stated:
The motel wanted [Triplett] evicted and [Triplett] wanted his
computer and other items removed from the room so they weren’t
lost. . . . It is clear from the hearing that [Triplett] did not want the
items left and he had no one available to get the items within a
reasonable time and [at] that time the items were removed from the
room and inventoried.
Triplett argues that these findings of fact are not supported by the evidence
and are clearly erroneous. He argues particularly that it is clear from the
testimony that he did not ask the police to enter his hotel room and gather his
belongings, that he did not express concern about his items being lost, and
that there is no mention of not having anyone available to retrieve his
belongings. Triplett also complains that the circuit court erroneously relied on
Det. Holznagle’s conjecture and sheer speculation to determine that Triplett
wanted the police to collect his belongings.
Consent is a question of fact to be determined from all the
circumstances. See Schneckloth v. Bustamonte, 412 U.S. 218 (1973)
(addressing what the prosecution must prove to demonstrate that a consent
was “voluntarily” given and concluding voluntariness of consent is a question
of fact to be determined from all the circumstances). We note that the only
testimony presented during the suppression hearing describing the Michigan
officers’ encounter with Triplett and the subsequent seizure of his belongings
was Det. Holznagle’s. Although Triplett suggests otherwise, an officer’s
inferences based on every-day or common-sense experiences may be
considered by the circuit court just the same as the officer’s knowledge gained
9
through law enforcement training and experience. Kansas v. Glover, 140 S. Ct.
1183, 1189-90 (2020). As with weighing conflicting testimony, we give
deference to the circuit court as the fact-finder who has the superior position to
judge the credibility of the sole witness and to assess the reasonableness of the
officer’s inferences. See Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003).
Triplett’s argument that no statements directly support the circuit court’s
findings advocates application of a different standard of review than our long-
settled standard. We “take care both to review findings of historical fact only
for clear error and to give due weight to inferences drawn from those facts by
[trial] judges.” Whitmore, 92 S.W.3d at 79 (quoting Ornelas, 517 U.S. at 699).
Det. Holznagle’s testimony was substantial evidence and his testimony was
such that the circuit court could draw the inferences about which Triplett
complains.
In regard to Triplett’s complaint about the finding that he had no one
available to retrieve his personal items within a reasonable time, the circuit
court heard testimony that Triplett, a resident of Kentucky, was being arrested
in Michigan around midnight;5 that Triplett paid for an overnight stay; and that
it appeared he was the only occupant of the hotel room. A finding of fact is
clearly erroneous only if it is manifestly against the great weight of the
evidence. Frances v. Frances, 266 S.W.3d 754, 756 (Ky. 2008) (citing Wells v.
Wells, 412 S.W.2d 568, 571 (Ky. 1967)). Consequently, upon review, we find
that the circuit court’s findings of fact were not clearly erroneous and consider
5Although Triplett challenges this finding because he has family in Michigan
who could have secured his belongings for him, no such testimony was elicited at the
suppression hearing.
10
next whether these findings support the circuit court’s conclusions of law that
the removal of Triplett’s belongings by the police was reasonable and did not
impinge on Triplett’s Fourth Amendment rights.
The Fourth Amendment states:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to
be seized.
U.S. Const. amend. IV.6
“This text protects two types of expectations, one involving ‘searches,’ the
other ‘seizures.’ A ‘search’ occurs when an expectation of privacy that society
is prepared to consider reasonable is infringed. A ‘seizure’ of property occurs
when there is some meaningful interference with an individual’s possessory
interests in that property.” United States v. Jacobsen, 466 U.S. 109, 113
(1984) (internal citations omitted).7 A privacy right need not be implicated to
bring Fourth Amendment protection to bear upon an unreasonable seizure of
property. Soldal v. Cook Cty., Ill., 506 U.S. 56, 60-66 (1992).8 “Although the
6 Section 10 of the Kentucky Constitution also guarantees the individual right
to be free from unreasonable searches and seizures. It provides that “[t]he people
shall be secure in their persons, houses, papers and possessions, from unreasonable
search and seizure; and no warrant shall issue to search any place, or seize any
person or thing, without describing them as nearly as may be, nor without probable
cause supported by oath or affirmation.”
7 Jacobsen concluded that governmental authorities’ assertion of temporary
dominion and control over a package and its contents entrusted to Federal Express for
delivery constituted a “seizure.” 466 U.S. at 120. The seizure was found to be
reasonable. Id. at 121.
8 Soldal, 506 U.S. at 66 n.10 (citing Horton v. California, 496 U.S. 128, 136-37
(1990)), also explains: “Of course, if the police officers’ presence in the home itself
11
interest protected by the Fourth Amendment injunction against unreasonable
searches is quite different from that protected by its injunction against
unreasonable seizures, neither the one nor the other is of inferior worth or
necessarily requires only lesser protection.” Arizona v. Hicks, 480 U.S. 321,
328 (1987) (internal citation omitted); accord Soldal, 506 U.S. at 60-64.9 Under
the Fourth Amendment then, dwelling-place searches and dwelling-place
seizures must be reasonable and must generally require a warrant to be valid.
Hicks, 480 U.S. at 326-28 (“A dwelling-place search, no less than a dwelling-
place seizure, requires probable cause . . . .”).10
“The reasonableness of [the government’s] invasion of the citizen’s
privacy [or possessory interest] must be appraised on the basis of the facts as
they existed at the time that invasion occurred.” Jacobsen, 466 U.S. at 115.
However, there are established exceptions to the Fourth Amendment’s warrant
requirement. Katz v. United States, 389 U.S. 347, 357 (1967). One exception,
entailed a violation of the Fourth Amendment, no amount of probable cause to believe
that an item in plain view constitutes incriminating evidence will justify its seizure.”
9 United States v. Place, 462 U.S. 696, 700–01 (1983) acknowledges that “in the
context of personal property, and particularly containers, the Fourth Amendment
challenge is typically to the subsequent search of the container rather than to its
initial seizure by the authorities.”
10 Hicks, 480 U.S. at 327 states:
We do not say, of course, that a seizure can never be justified on
less than probable cause. We have held that it can—where, for example,
the seizure is minimally intrusive and operational necessities render it
the only practicable means of detecting certain types of crime. See, e.g.,
United States v. Cortez, 449 U.S. 411, 101 S. Ct. 690, 66 L. Ed. 2d 621
(1981) (investigative detention of vehicle suspected to be transporting
illegal aliens); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct.
2574, 45 L. Ed. 2d 607 (1975) (same); United States v. Place, 462 U.S.
696, 709, and n.9, 103 S. Ct. 2637, 2645 and n.9, 77 L. Ed. 2d 110 (1983)
(dictum) (seizure of suspected drug dealer’s luggage at airport to permit
exposure to specially trained dog).”
12
pertinent here, is consent. Schneckloth, 412 U.S. 218; see also Soldal, 506
U.S. at 65-66. The burden of proof rests with the government to show the
search and seizure are justified under one of the exceptions. Coolidge v. New
Hampshire, 403 U.S. 443, 455 (1971) (citations omitted). If the government
does not meet its burden, introduction of the evidence is generally prohibited.
Wong Sun v. United States, 371 U.S. 471, 484–85 (1963). Under the
exclusionary rule, illegally obtained evidence and any evidence derived from it
must be excluded. Id. at 485.
Case law establishes that Fourth Amendment protection extends to such
places as hotel or motel rooms. Stoner v. California, 376 U.S. 483, 490 (1964).
However, a guest does not have a reasonable expectation of privacy in the hotel
room or any article within it when the hotel lawfully takes possession of the
room once a hotel guest’s rental period has been lawfully terminated. Blades v.
Commonwealth, 339 S.W.3d 450, 453 (Ky. 2011) (citing United States v. Allen,
105 F.3d 695, 699 (6th Cir. 1997)).
Triplett argued before the circuit court that he did not give consent to
search the room; no other exception to the warrant requirement was met; and
he maintained his reasonable expectation of privacy because his rental period
had not expired at the time of his arrest. He reiterates those arguments here,
but further complains that in relation to “consent to evict,” which Det.
Holznagle testified he was given by the hotel, the “inventory search”11
conducted by the Michigan police was a ruse.
11 The Commonwealth’s response to the motion to suppress likened the officers’
photographing and inventorying Triplett’s items to the inventory search conducted by
the police in their community caretaking function in automobile impoundment cases
13
The circuit court decided the motion to suppress when it concluded that
Triplett consented to the police seizure of the items, which infers the officers
could lawfully enter Triplett’s hotel room and remove his belongings for safe-
keeping. Consequently, the circuit court did not reach any conclusions
regarding Triplett’s eviction-related arguments. Because we agree with the
circuit court, we need not and do not consider whether Triplett no longer had a
reasonable expectation of privacy because the hotel clerk wanted him evicted
from the hotel upon his arrest.
Based upon our de novo review, the findings of facts and totality of the
circumstances establish that the Michigan officers did not unreasonably
interfere with Triplett’s possessory interests.12 Jacobsen, 466 U.S. at 115.
Triplett was arrested in Michigan and was understandably concerned about his
personal belongings being left behind in a hotel room. Under the
circumstances, there was nothing fundamentally wrong with the Michigan
officers taking possession of Triplett’s belongings for safekeeping. And only
after a warrant was secured by Kentucky authorities did they search the
electronic equipment, computers, jump drives, videos, and discs. Triplett
consented to the officers’ seizure of the items in his hotel room and therefore
the Michigan officers were justified in inventorying the items and securely
and that this case satisfied the South Dakota v. Opperman, 428 U.S. 364 (1976),
factors for assessing whether an inventory search pursuant to standard police
procedures is reasonable.
12 Det. Holznagle testified that another officer had contact with Mrs. Triplett and
at her request accessed the vehicle and recovered cash from it. Det. Holznagle stated
he was unaware if that officer and Mrs. Triplett discussed release of Triplett’s personal
belongings.
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storing them at the police department. In terms of maintaining possession of
the property until Kentucky authorities took possession, no testimony was
elicited that the Michigan police were presented with or denied a request for
release of Triplett’s property by Mrs. Triplett. The trial court properly denied
Triplett’s motion to suppress because no unlawful seizure occurred.
II. The Circuit Court Did Not Err by Denying Triplett’s Motion
to Withdraw His Guilty Plea.
After the jury recommended he serve eighty-five years in prison but prior
to the formal sentencing, Triplett filed a pro se motion to withdraw his guilty
plea. The circuit court appointed counsel and held an evidentiary hearing.
The circuit court denied Triplett’s motion to withdraw his plea.
RCr 8.10 provides that “[a]t 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.” However, the circuit court only has discretion to deny
a motion to withdraw a guilty plea if the plea was voluntarily made. Rodriguez
v. Commonwealth, 87 S.W.3d 8, 10 (Ky. 2002); see Kentucky Rule of Criminal
Procedure (RCr) 8.10. The circuit court must grant the plea withdrawal upon
finding that the plea was involuntary. Rodriguez, 87 S.W.3d at 10. “A guilty
plea is involuntary if the defendant lacked full awareness of the direct
consequences of the plea or relied on a misrepresentation by the
Commonwealth or the circuit court.” Edmonds v. Commonwealth, 189 S.W.3d
558, 566 (Ky. 2006) (citing Brady v. United States, 397 U.S. 742, 755 (1970)).
Furthermore, in cases when the defendant claims that his plea was not
voluntary due to counsel’s assistance being ineffective, the circuit court must
consider the totality of the circumstances surrounding the guilty plea and
15
consider, with the focus on the voluntariness of the guilty plea, Jackson v.
Commonwealth, 363 S.W.3d 11, 16 (Ky. 2012), whether “counsel made errors
so serious that counsel’s performance fell outside the wide range of
professionally competent assistance,” Bronk v. Commonwealth, 58 S.W.3d 482,
486 (Ky. 2001). If so, the next inquiry is whether “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.” Id. at 486–87.
Triplett testified to ways his defense counsel was ineffective, such as
having limited contact with him and not explaining the penalties for sex
crimes, parole eligibility after serving 85% of the sentence, and ineligibility for
probation. He also testified he entered the plea under the duress and threat of
abandonment of his private counsel, and that his post-traumatic stress
disorder (PTSD) and related headaches and lack of treatment for dental issues
impaired his thinking the day he entered his plea. During the plea colloquy,
when questioned about his PTSD, Triplett specifically stated that he did not
have any mental health impairments affecting his ability to make a knowing
and voluntary plea. During the plea withdrawal hearing, he stated that he just
could not speak up during the plea and being a polite person, probably would
have said yes to the questions whether he was knowingly and voluntarily
entering the plea. Triplett concedes the guilty plea colloquy was thorough.
Triplett’s former defense counsel also testified regarding his
representation of Triplett and the advice to Triplett to plead guilty and have
jury sentencing. A “Client Understanding” memo detailing counsel’s opinion,
16
which Triplett signed on the day he entered his plea, was introduced into
evidence. Former counsel said that he could not recall the number of times he
met face-to-face with Triplett but that he communicated with him through
various means including with Triplett’s wife. He also testified that he would
have explained the consequences of the guilty plea. Former counsel explained
that he had sympathy for Triplett’s mental health surrounding his PTSD, but
that he never doubted Triplett’s competency to participate in his defense. In
response to the circuit court’s question, he opined that if Triplett went to trial,
the jury would have seen even more harmful video footage than that played for
the sentencing jury.
Because of the factual determinations inherent in this
evaluation, Kentucky appellate courts have recognized that “the
trial court is in the best position to determine if there was any
reluctance, misunderstanding, involuntariness, or incompetence to
plead guilty” at the time of the guilty plea and in a “superior
position to judge [witnesses’] credibility and the weight to be given
their testimony” at an evidentiary hearing. Accordingly, this Court
reviews a trial court’s ruling on a defendant's motion to withdraw
his guilty plea only for abuse of discretion by “ascertain[ing]
whether the court below acted erroneously in denying that
appellant’s pleas were made involuntarily.
Bronk, 58 S.W.3d at 487 (internal citations omitted).
The circuit court entered a written ruling evaluating the totality of the
circumstances, id., describing Triplett as a very intelligent, educated man
whose criminal background provided extensive knowledge of the legal system
and how it works. The circuit court observed that along with stating he was
satisfied with counsel’s performance during the plea, Triplett is not an
individual to be coerced by anyone or let his attorney not adequately represent
him. The circuit court also considered that during the sentencing hearing four
17
days after the plea, Triplett again provided no indication that his plea was
involuntary, but instead testified in a frank manner about being a veteran,
having health problems, and his history of incarceration. The circuit court
concluded that Triplett’s plea was freely, intelligently, and knowingly made.
Upon review of the record, the circuit court’s decision that Triplett’s plea was
voluntary is not clearly erroneous and consequently the circuit court did not
abuse its discretion by denying Triplett’s motion to withdraw his guilty plea.
Thomas v. Commonwealth, 605 S.W.3d 545, 554 (Ky. 2020).
III. Palpable Error Relief Is Not Warranted for the Admission of
Evidence of Triplett’s Prior Offenses.
The Commonwealth introduced evidence of Triplett’s prior criminal
offenses via the taped interview conducted by a detective upon Triplett’s return
to Kentucky. During the interview Triplett provided details of his prior criminal
history including “playing around with his babysitter” who claimed she was
raped (Triplett later testified that, twenty-two-years-old at the time, the sixteen-
year-old’s parents prosecuted him); involvement in an armed robbery where a
waitress was shot; holding two federal agents at gunpoint and being on the
FBI’s Ten Most Wanted List; and escaping from prison by walking out the front
door. In response to the Commonwealth’s question, the detective testified that
Triplett described the crimes as someone else’s fault and did not accept
responsibility for the crimes. Defense counsel did not object while the tape was
played, but cross-examined the detective, questioning whether Triplett was
convicted of all the crimes he described. The detective responded it did not
appear Triplett was convicted for the escape and he was unsure about the
crime of holding the federal officers at gunpoint.
18
Triplett now complains the jury heard unduly prejudicial details about
his alleged prior offenses, pointing to the details of the rape victim becoming
pregnant; of his having held two federal agents at gunpoint; and of his being on
the FBI’s Most Wanted List. He also complains that the Commonwealth did not
introduce any certified copies of prior offenses, the method to reliably prove
Triplett’s prior convictions. He seeks palpable error review of these issues.
Under RCr 10.26, if an error is found to be palpable and if that
unpreserved error affects the substantial rights of the defendant, the appellate
court may grant appropriate relief if manifest injustice has resulted from the
error. An error is palpable when it is “easily perceptible, plain, obvious and
readily noticeable.” Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006).
As recently explained in Nami Resources Company v. Asher Land and Mineral,
Ltd., 554 S.W.3d 323, 338–39 (Ky. 2018), at trial, it is the easily perceptible,
obvious, and readily noticeable errors which are so egregiously prejudicial as to
cause manifest injustice for which the trial court has a duty to take corrective
action. The error must be “so manifest, fundamental and unambiguous that it
threatens the integrity of the judicial process.” Martin v. Commonwealth, 207
S.W.3d 1, 5 (Ky. 2006).
“Kentucky’s Truth-in-Sentencing statute is geared toward providing the
jury with information relevant to arriving at an appropriate sentence for the
particular offender.” Williams v. Commonwealth, 810 S.W.2d 511, 513 (Ky.
1991). KRS 532.055(2)(a) thus allows the Commonwealth to introduce
evidence concerning the nature of the defendant’s prior offenses for which he
was convicted, KRS 532.055(2)(a)2, and the date of the commission, date of
19
sentencing, and date of release from confinement or supervision from all prior
offenses, KRS 532.055(2)(a)3. While the nature of the defendant’s prior
offenses is admissible, Triplett directs our attention to Mullikan v.
Commonwealth, 341 S.W.3d 99, 109 (Ky. 2011), which explains that “the
evidence of prior convictions is limited to conveying to the jury the elements of
the crimes previously committed,” and advises that when conveying the
elements, identifiers which might trigger jurors’ memories of the crimes should
be avoided. Triplett also argues that under Finnell v. Commonwealth, 295
S.W.3d 829, 835 (Ky. 2009), wherein we found CourtNet was an unofficial
“document” and not a reliable source to prove a defendant’s prior convictions,
the detective should not have been allowed to testify about Triplett’s prior
criminal history using an NCIC (National Crime Information Center) report.
Although Triplett does not make clear which aspect of the interview’s
description of holding federal agents at gunpoint goes beyond the elements of
the crime, we agree that the detail that Triplett was on the FBI’s Most Wanted
List went beyond the nature of the offense. We find likewise with respect to the
details that his prior rape victim was his babysitter, became pregnant, and that
Triplett claimed she “cried rape.” However, as to Mullikan’s other guidance,
personal identifiers were not used. Furthermore, as Triplett later testified in
response to the Commonwealth’s questioning, the rape of the minor occurred
in 1972 and his next felony occurred in 1978. According to his own testimony,
Triplett was not a resident of Kentucky when he committed these crimes so
triggering jurors’ memories would have been a negligible concern in this case.
20
As to Triplett’s argument that the NCIC report is not a source competent
to prove his convictions, Finnell, 295 S.W.3d at 835, this case is
distinguishable from Finnell. Triplett provided his criminal history during the
detective’s interview with him. On cross-examination, defense counsel elicited
testimony from the detective which clarified Triplett’s criminal convictions. The
detective used the NCIC report to testify that Triplett had not been convicted of
escape nor apparently for holding the federal agents at gunpoint. The essential
problem appears to be that Triplett described crimes for which he was not
convicted, crimes which do not fall within KRS 532.055(2)(a)(2). Although
information regarding crimes for which he was not convicted should not have
been introduced into evidence, nor the extraneous information described
above, we cannot conclude that any error, individually or collectively, was so
manifest that it threatened the integrity of the judicial process. Moreover,
having concluded the trial court did not err by declining to suppress the videos
showing the victims’ sexual assaults (and then allowing the videos to be shown
to the jury), we cannot say that “there is a ‘substantial possibility’ that the
result in the case would have been different without the error.” Brewer, 206
S.W.3d at 349. Stated differently, none of these errors regarding the admission
of details of prior offenses had a substantial possibility of changing the
outcome of this case.
IV. The Jury Instruction Was Not Erroneous.
Pursuant to KRS 532.055(2), “[t]he jury shall recommend whether the
sentences shall be served concurrently or consecutively.” The jury first fixed
the penalty for each of the following counts at twenty years: rape in the first
21
degree (S.E.), rape in the first degree (J.B.), sodomy in the first degree (J.B.),
and kidnapping (J.B.). The jury fixed the penalty for the offense of criminal
possession of a forged instrument at five years. The jury was then instructed it
was authorized to enter a verdict as follows:
You will further recommend in your verdict whether the
punishment which you have fixed for the Defendant under Counts
ONE, TWO, THREE, FOUR, and Count ONE of the second
indictment should run concurrently (at the same time) or
consecutively (one to begin after the completion of the other – the
sentences are all added together).
The preface of the form verdict stated: “We recommend that the
punishment fixed for the Defendant under Counts ONE, TWO, THREE, FOUR,
and Count ONE of the second indictment to be served concurrently (at the
same time) or consecutively (one after the other) as follows[.]” The verdict form
then presented for each crime the option of recommending the fixed
punishment run concurrently or consecutively, the format for each being:
We recommend that the punishment fixed for the Defendant under
Count [number, crime identification], be served . . . :
_____CONCURRENTLY (at the same time)
_____CONSECUTIVELY (one after the other).
The jury marked “consecutively” for each of the five penalties.
Triplett, citing Stoker v. Commonwealth, 828 S.W.2d 619, 627 (Ky. 1992),
argues that this form verdict is erroneous because it did not allow the jury to
choose among all the options-the options of running the sentences all
concurrently or all consecutively, or partially consecutively and partially
concurrently. He seeks palpable error review.
22
In Stoker, the defendant was convicted of seventeen counts, but unlike
the present case, the jury was not given the option to indicate for each count
whether the sentence should run concurrently or consecutively. The
instruction following the fixing of the sentence for all seventeen counts was:
You will further recommend in your verdict whether the
punishments which you have fixed for the Defendant should run
concurrently (at the same time) or consecutively (one to begin after
the completion of the other).
The form of verdict then stated:
We, the jury, recommend that the punishments fixed for the
Defendant shall run _____________________________
concurrently or consecutively.
Id. at 626. We concluded the instruction was erroneous because “where there
are more than two offenses, some may be run concurrently and some
consecutively, . . . the jury should be advised accordingly.” Id. at 627. Stoker’s
directive was satisfied in this case because the jury was provided the
opportunity to recommend for each crime whether the penalty should run
concurrently or consecutively.
Triplett also cites Lawson v. Commonwealth, 85 S.W.3d 571, 581 (Ky.
2002), for the premise that the jury should have been instructed to recommend
that the sentences run concurrently or consecutively, in whole or in part, and
provided a verdict form that clearly allows for all options. In Lawson, 85
S.W.3d at 580 n.22, we
suggest[ed] a more informative and correct verdict form in [that] case
would read:
We, the jury, recommend that the sentences fixed for the
Defendant under Counts 1 and 2 above shall be served
concurrently (at the same time) or consecutively (one to begin after
the completion of the other), in whole or in part, as follows: . . . .
23
However, as explained in Davis v. Commonwealth, 365 S.W.3d 920, 922 n.3
(Ky. 2012), this suggestion was non-precedential obiter dictum, and it remains
so.13
To the extent Triplett argues that the trial court erred by omitting “in
whole or in part” instructions, “when the allegation of instructional error is that
a particular instruction should have been given but was not . . . , RCr 9.54
operates as a bar to appellate review unless the issue was fairly and adequately
presented to the trial court for its initial consideration.” Martin v.
Commonwealth, 409 S.W.3d 340, 346 (Ky. 2013). Under this principle, we may
not review the lack of “in whole or in part” instructions for palpable error. Id.
at 345. To the extent Triplett argues that the instructions were incorrectly
stated or defectively phrased by not including “in whole or in part” instructions,
no precedent exists in support which would allow palpable error relief. See id;
Davis, 365 S.W.3d at 922 n.3. Thus, pursuant to Stoker and its progeny, we
conclude that the jury instructions were not erroneous and palpable error relief
is not warranted.
CONCLUSION
For the foregoing reasons, the Montgomery Circuit Court’s amended
judgment and sentence is affirmed.
All sitting. All concur.
13
Cooper and Cetrulo’s Kentucky Instructions to Juries (Criminal), Section
12.19B (6th ed., LexisNexis 2016), provides an exemplar of the Lawson suggestion but
the commentary qualifies the instruction as not being authoritative, citing Davis.
24
COUNSEL FOR APPELLANT:
Shannon Renee Dupree
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel Jay Cameron
Attorney General of Kentucky
Perry Thomas Ryan
Assistant Attorney General
25