Steven Zapata v. Commonwealth of Kentucky ( 2020 )

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TO BE PUBLISHED
fiuprrme Gland Hf fienfnnkg
2018 SC 000666 MR
STEVEN ZAPATA
APPELLANT
ON APPEAL FROM JEFFER
V SON CIRCUIT COURT
HONORABLE MITCH PERRY
JUDGE
NO 13 CR 002075
COMMONWEALTH OF KENT
UCKY
APPELLEE
OPINION OF THE COURT
BY JUSTICE WRIGHT
AFFIRMING
A Jefi'erson County Grand Jur
y indicted Steven Zapata for
one count of
murder for killing his wife, Ton
defia. On October 28, 2015, Zap
ata entered a
guilty plea pursuant to North
Carolina :2 Alford 91 S Ct 160
(1970) in which
he maintained his innocence
while acknowledging the Comm
onwealth had
sufl'icmnt evidence to convict
him On November 5, Zapata
’s cou rt appointed
counsel filed a motion to withdr
aw his guilty plea. On Novemb
er 9, Zapata
mailed his own motion to wit
hdraw the plea, alleging deficie
nc1es 1n
representation The trial cou
rt denied both mot ions and Zapata appealed In
Zapata v Commonwealth, 516
S W 3d 799 (Ky 2017) this Cou
rt vacated the
Judgment and order denyin
g Zapata’s motion to withdr
aw the guilty plea and
remanded the case for further pro
ceedings
On remand, the trial court per
mitted Zapata’s newly appomt
ed conflict
counsel time to consult with Zap
ata, review prior counsel’s lit
igation file, and
determine if Zapata wished to con
tinue with his guilty plea or procee
d with a
new motion to withdraw the ple
a Zapata’s new counsel filed a
mo ton to
withdraw the guilty plea
The trial court conducted an evi
dential-y hearing on the new mot
ion to
withdraw the guilty plea Zap
ata and his previous counsel,
Angela EHeman,
testified at the hearing After
additional briefing, the tria l court denied Zapata s
motion to withdraw his guilty ple
a. The trial court sentenced Zap
ata to 24
years’ imprisonment in accord
ance with the plea agreement He
now appeals
to this Court as a matter of right
Ky Const § 110(2)(b)
Zapata raises two main issues
on appeal 1) the trial court erred by not
permitting him to withdraw his
guilty plea (due to (a) ineffective
assistance of
counsel, (b) Elleman’s disquahfy
ing conflict of interest, and (c) “Za
pata’s
incorrect belief of his absolute
right to withdraw his guilty ple
a at any time
prior to sentencing”) and 2) eve
n assuming the plea was volunt
arily entered,
the trial court abused its discre
tion when it denied his motion to
withdraw his
guilty plea. After careful review, we
affirm the trial court
I BACKGROUND
Zapata and his wife, Tondelia,
had been married for three mo
nths when
she was found strangled to dea
th in the c0uple’s shared apartm
ent In
statements to police, Zapata claime
d Tondelia attacked him with a kni
fe
Zapata claimed that, in response
to Tondelia’s attack, he punched
her multiple
2
times and had his hands aro
und her throat According to
Zapata, Tondel ia
was alive when he left the apa
rtment. Zapata was indicted
for her murder
Zapata was examined for
competency to stand trial
by the Kentucky
Correctional Psychiatric Center
(KCPC) and by his court appoin
ted defense
counsel’s retained expert Fol
lowing a hearing, the trial cou
rt determined
Zapata was competent After
that ruling by the trial cou rt Zapata filed a
motion to represent himself as
hybrid counsel The trial court
conducted a
hearing pursuant to Faretta v
Califomia 95 S Ct 2525 (1975)1 and permitted
Zapata to act as hybrid counse
l
Zapata and the Commonwealth
reached a negotiated plea agreem
ent and
appeared in court to enter the
plea On October 28, 2015, Ell
eman and Zapata
negotiated a reduction in the agr
eed sentence recommendation for
murder from
25 years to 24 years and Zapata
entered an Alford plea Paperw
ork filed in
conjunction with the guilty ple
a included a “Motion to Enter Gui
lty Plea” form
R
1 me United States Supreme Cou
represent himself at trial in Fan rt set out the requirements for an
atta, 4-22 U S at 835 “In Order accused to
the accused must ‘knowingly and to represent himself,
intelligently forgo those relinquis
Although a defendant need not hed benefits
himself have the skill and experi
order competently and mteIligen ence of a lawyer in
tly to choose self representation,
aware of the dangers and disadv he should be made
antages of self representation, so
establish that he knows what he is that the record will
doing and his choice is made With
(internal citations and quotation
marks omitted)
eyes open ”)
Section 1 1 of the Kentucky Con
stitution also addresses this iss
“[ijn all criminal prosecutions the ue, stating
accused has the right to be hea
counsel ” Our predecessor Court conclu rd by himself and
limited waiver of counsel, spectf ded this means “an accused may
ying the extent of services he des make a
entitled to counsel whose duty will ires, and he then is
be confined to rendering the spe
services (within, of course, the nor cified kind of
mal scope of counsel services) ”
514 S W2d 692 696 (Ky 197 Wake v Barker,
4)
3
signed by Zapata with an unSigned “Cer
tificate of Counsel ” The trial court
conducted a colloquy pursuant to Rag
lan 0 Alabama 395 U S 238 (1969)
which requires trial Judges to ensure
guilty pleas are made intelligently,
knowingly, and voluntarily During the
Boylcm colloquy the trial court
questioned Zapata about the rights list
ed in the motion, but did not ask
Elleman any questions about the certifica
te of counsel The trial court
accepted the plea and set the case for sent
encing
A few days later, Elleman filed a motion
to withdraw Zapata’s guilty plea
with no reasons specified in support of
the motion Zapata filed his own
motion to withdraw the guilty plea clai
ming (among other things) that he had
been deceived by Elleman’s incorrect advi
ce that he could withdraw his guilty
plea any time before sentencing, “no proble
m ” According to Zapata, the deceit
rendered his plea involuntary
Despite Elleman’s aclmowledgment of the
awkward position created by
the allegations made by Zapata in the motion,
the trial court did not appoint
conflict counsel, noting that Zapata was acti
ng as hybrid counsel The trial
court heard arguments, took no proof, and
denied the motions to withdraw the
plea Zapata was sentenced pursuant to the
ter ms of the plea agreement
In Zapata’s original appeal, this Court found
an actual conflict existed
between Zapata’s interests and Elleman’s inte
rests over the motion to withdraw
the guilty plea The case was remanded, and
the posture of the case was
returned to the point in time when the plea
had been accepted, but before the
motion to withdraw the plea had been mad
e On remand, conflict counsel was
4
appomted, a new motion to withdraw the plea
was filed, and the trial court
denied the motion and sentenced Zapata
according to the plea agreement
11 ANALYSIS
A The trial court did not err in denying
Zapata’s motion to withdraw
his guilty plea due to ineffective assistan
ce of counsel, counsel’s
alleged conflict of interest, or Zapata’s inco
rrect belief that he could
Withdraw his guilty plea at any point prio
r to sentencing
Zapata first argues that the trial court should
have granted his motion to
withdraw his guilty plea “in View of his former
public defender’s ineffectiveness
in the plea negotiations and her disqualifyin
g conflict of interest as well as
Zapata’s incorrect belief of his absolute right
to withdraw his guilty plea at any
time prior to sentencing ” We will address each
of these issues in turn
1 Ineffective assistance of counsel
Zapata claims his counsel was inefi'ective duri
ng plea negotiations and
that the trial court erred in denying his motion
to withdraw his plea on these
grounds Zapata asserts that EHeman both esse
ntially aban doned his
representation during plea negotiations and told
him that he could Withdraw
the plea agreement at any tune before sent
encmg He argues this essential
abandonment of representation and incorrect advi
ce amounted to ineffective
assistance of counsel requiring the trial court to gran
t his motion to withdraw
his plea
At the outset, we note
[ulnder either [RCr 8 10 or RCr 1 1 42] to be entit
led to relief on
that ground the movant must allege with particul
arity specific facts
which, if true, would render the plea involuntary
under the
Fourteenth Amendment’s Due Process Clause,
would render the
plea so tainted by counsel’s ineffective assistan
ce as to violate the
5
Sixth Amendment, or would
otherwise clearly render the
invalid plea
Commonwealth v 1’71de 394 S
W 3d 867 874 (Ky 2012) On app
eal “we
review the trial court’s factual
findings only for clear error, but
its application
of legal standards and precedent
s de novo ” Id “If the trial judge’s
findings
of fact in the underlying action
are not clearly erroneous, Le , are
supported by
substant1al evidence, then the
appellate court’s role is confine
d to determining
whether those facts support the
trial judge’s legal conclusion ” Com
monwealth
v Delaney 20 S W 3d 471 473
74 (Ky 2000) Mere doubt as to the
correctness of a finding would not
justify reversal, and the appellate
court does
not consider and weigh evidence
de novo However, if a finding is without
adequate evidential-3' support
, the reviewing court may regard it
as clearly
erroneous ” Commonwealth v Har
relson, 14 S W 3d 541, 548—49 (Ky 2000)
Zapata’s claims regarding his aba
ndonment by counsel repeatedly
return
to the fact that Elleman had fai
led to Sign the Certificate of Cou
nsel” located
on page 2 of the Motion to Enter
Guilty Plea ” The Certificate of Counsel on
that form reads
1 To the best of my knowledge and
belief the defendant
understands the allegations contai
ned in the indictment
and/or any amendments thereto
I have fully discussed
with the defendant the charges and
any possible defenses
to them and I believe that he/ she
fully understands the
charges and possible defenses I
have reviewed with the
defendant the attached “Commonwe
alth’s Ofl'er on a Plea
of Guilty” and the Foregoing “Motio
n to Enter a Plea of
Guilty,” and I believe he/ she unders
tands these
documents
6
2 To the best of my howledge and
belief, his [her plea of
“GUILTY” is made freely, knowingly
, mtelligently and
voluntarily I have fully explained
the defendant 8
constitutional rights to him /her and
I believe that he/ she
understands them
3 The plea of “GUILTY” as ofl'ered
by the defendant is
con31stent with my advice to him /he
r, and I recommend
to the Court that his/her plea he acc
epted
The reasons for Elleman’s failure to
Sign the form were extenswely
explored during the evidential-y hearin
g According to Elleman, she did not
sign the certificate because she disagr
eed with the trial court’s ruling that
Zapata was competent to stand tria
l following his examination at the Ken
tucky
Correctional Psychiatric Center (KCPC)
Zapata raises no issues in this appeal
concerning that competency ruling
However, according to Elleman, Zapata
’s
competency remained an Issue for her
—even after the trial court had ruled
otherwise At the plea withdrawal hea
ring on rem and, Elleman said, “I didn’t
Sign [the certificate] because my person
al opinion was that Mr Zapata wasn’t
competent ”
Zapata’s conflict counsel asked Ellema
n if her failure to Sign the
certtficate Was because everything list
ed in the certificate was not true
including that the plea was voluntarily
entered Elleman responded that her
concerns over Zapata’s competency ext
ended over the entire guilty plea. After
reviewing the plea colloquy transcript,
Elleman acknowledged the trial court
did not ask any questions about the cert
ification during the Boykzn hearing on
the plea and Elleman did not inform the
court of her concerns
7
3
Zapata argues that, “[a] signed and
dated Certificate of Counsel is a
requirement for a defendant entering
a guilty plea.” He insists that Ellema
n’s
failure to Sign the form is indicative of
the fact that she had abandoned her
client during the plea negotiations and
he was unrepresented at that stage
of
trial He refers to no rule of procedur
e, rule of evidence, or case authority that
requires counsel’s signature on this for
m before a guilty plea may be accepted
Under the facts and Circumstance
s of this case, we decline to hold eith
er that a
signed certificate was a requirement for
the entry of Zapata’s guilty plea or that
it indicates E11eman abandoned her client.
Zapata goes so far as to allege that “[t]he
failure of a trial judge to elimt
this information [contained on the form
] from counsel via either the form or
questioning renders the plea involuntary
” (emphasis added) Again,
Zapata directs us to no legal authority mak
ing such a signature or inquiry by
the trial court mandatory for a finding of
voluntariness We decline to adopt
such a position today
The trial court determined the guilty ple
a was voluntary based on the
totality of Circumstances present in this cas
e In its order, the trial court
stated
Trial courts are in a unique position when it
observation of criminal defendants Ove
com
es to the
r the course of a case,
from indictment to finaljudgment or acqu
ittal, a Court observes
how defendants interact with their attorney
s, howr they participate
in their own defense, and their bearing in
listening and responding
to the Court In the case of Steven Zapata,
this Court had the
occasion to observe him on no fewer than
twenty occasions
During the two and a half year pendency of
Zapata’s case, this
Court observed on multiple occasions that Zap
ata was as savvy,
smart, and sophisticated as any Defendant
who has appeared
8
before this Court Nothing that
was raised at the evidentiary
hearing concerning Zapata’s mot
ion to Mthdraw his guilty plea
changed those observations
Zapata, in his capacity as defend
ant and hybrid counsel,
participated meaningftu in his own
defense He communicated
on numerous occas10ns with thi
s Court, demonstrating an
understanding of the processes and
procedures which took place,
and in fact meaningfully partiapau
ngm them At each conference
between Zapata’s election to repres
ent himself in a hybrid counsel
Situation and his final guilty plea,
Zapata reaifinned his desire to
continue representing himselfin CQI'
IJUI‘ICHOI‘I with Elleman
Zapata ofl‘ered spirited arguments
in his own defense, both to this
Court and apparently in negotiations
with the Commonwealth’s
Attorney In fact, on the day of the
scheduled plea hearing and
with the assistance of lineman, he
successfully negonated a
flirther One (1) year reduction in total sen
tence
Included in the more than twenty cou
rt appearances noted in the trial cou
rt
order, a review of the record discloses
that two appearances were competenc
y
hearings, one was a Faretta hearing, and
one a Boykm plea colloquy The trial
court observed Zapata when he testifi
ed at the heating on the motion to
withdraw his plea There were signifi
cant interactions bet ween Zapata, his
attorneys, the Commonwealth, and the
trial court in a variety of hearings
Zapata’s involvement in these hearin
gs contrasts with more limited events suc
h
as an arraignment, where “yes or no” ans
wers or “state your full name” are the
more typical interacnons between a tria
l court and a defendant
The opportunities this trial court had
to observe Zapata and draw
conclus1ons fiom those observations
, support the tn'al court’s findings A
signed certificate of counsel would have
been evidence of the voluntariness of
the plea (as it would have provided Ell
eman’s opinion that Zapata voluntari
ly
entered his plea), but the absence of the
signed certificate is not proof that the
9
plea was involuntary A failure to sign or
testify is an absence of proof rather
than proof of anything
As this case demonstrates, the better prac
tice is for trial courts to review
both motions to enter guilty pleas and cert
ificates of counsel with a defendant’s
counsel during the plea colloquy Any issu
es or concerns that counsel has can
be resolved, and a clear record established
In this case, for whatever reason,
the trial court did not ask counsel question
s about the certificate of counsel
While that did not, in and of itself, rend
er this plea invalid, the better practice
for all concemed in future cases is for the trial
court to take the time to ask
counsel questions about the plea and the docu
ments filed in conjunction
therewith
We also consider the actual words Zapata spok
e in the Boykzn plea
colloquy “Solemn declarations in open court carr
y a stro ng presumption of
verity Blaclcledge v Allzson, 97 S Ct 1621 1629 (197
7) However we do not
View those declarations in isolation “In other
words, the validity of a guilty
plea is determined not by reference to some magic
incantation rec1ted at the
time it is taken but from the totality of the circ
umstances surrounding it ”
Kotas v Commonwealth, 565 S W 2d 445 447 (Ky
1978) (Citing Brady :2
United States 90 S Ct 1463 (1970)) We have
directed trial courts
In cases where the defendant disputes his or her volu
proper exerase of this discretmn requires trial
ntai
iness, a
courts to cons1der
the totality of the Circumstances surrounding the
guilty plea and
juxtapose the presumption of voluntariness inhe
rent in aproper
plea colloquy with a Strickland v Washmgton[ 104
S Ct 2052
(1984),] inquiry into the performance of counsel
10
Bronk v Commonwealth, 58 S W 3d 482 486 (Ky
2001) [footnotes omitted)
In applying Strickland to plea agreements, we have
quoted the Court of
Appeals statement that.
“A showing that counsel’s assistance was ineffectiv
e in enabling a
defendant to intelligently weigh his legal alternatives
in deciding to
plead guilty has two components (I) 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 aflected the outcome of the
plea process
that, but for the errors of counsel, there is a reasonab
le probabihty
that the defendant would not have pleaded guilty,
but would have
insisted on gomg to trial "‘
Bronk, 58 S W 3d at 486 (quoting Sparks v Commonwe
alth, 721 S W 2d 726727 28 (Ky App 1986))
Zapata argues the trial court limited his ability to inqui
re about
ineffective ass:stance of counsel issues during the hearing
on the new motion
The record reveals the trial court (on one occasion) did tell Zapat
a’s counsel
that the hearing was not being held to rule on a general ineff
ective assistance
of counsel motion Instead, the trial court directed counsel to focus on
those
issues connected to the guilty plea and the motion to with
draw the guilty plea
Spemfically, the trial judge stated, “[t]here is no 1201‘ 1 1 42
motion on the
table ” In response, Zapata’s counsel argued vigorously that
ineffectve
assistance was an issue involved in the motion to withdraw the
guilty plea We
note the trial court did not prevent counsel during the rema
inder of the hearing
from asking questions about ineffechve assistance of counsel
as it related to
the guilty plea or the motion to withdraw the plea. After aski
ng counsel to take
a deep breath and calm down, the trial court directed him to proc
eed The trial
11
Judge concluded by saying “[a]sk whatever
question you are curious about to
Ms E11eman ” (emphasis added ) In telli
ng Zapata’s counsel to ask “whatever
question” he wanted, the trial court lifted
any limitation regarding questioning
as to inefiective assistance of counsel.
Zapata asserts this single (and later revoked)
limitation by the trial court
afi‘ected his ability to present facts concerni
ng ineffective assistance of counsel
through testimony As noted above, after
a thorough search, we found no
other trial court directives in the record that limi
ted his questioning nor does
Zapata cute to any others It appears the trial
court inihally intended to avoid a
hearing on issues generally related to ineffectiv
e assistance of counsel and
sought to keep the focus on the guilty plea and
the motion to withdraw the
guilty plea As noted, the trial court withdrew
that restrict ion and allowed
Zapata’s counsel to question E11eman Followin
g the exchange between
Zapata’s counsel and the trial Judge, it would have
been unreasonable for
Zapata’s counsel to believe he could not ask E11e
man questions to support an
inefi'ective assistance of counsel claim relating
to the plea withdrawal
In response to questions at the hearing, E11e
man testified that Zapata
expressed regrets about entering the plea whe
n he called E11eman asking her to
file a mohon to set aside his plea Regrets after
entering a plea are not
uncommon, especially when the plea bargain
includes the recommendation for
a substantial sentence (as was the case herein)
However, regrets alone do not
require that a trial court allow a defendant to with
draw his guilty plea.
12
As noted above, on the day
he entered his guilty plea,
Zapata asked the
Commonwealth to reduce
the sentencing recommenda
tion by one year Zapata
also insisted on an Alford
plea and the Commonwealth
agreed Elleman was
successful in obtaining bot
h the reduction in the senten
cing recommendation
and the Alford plea Zapata req
uested
While the trial court did not
use the words “ineffective ass
istance of
counsel,” it did efl‘ectively add
ress Zapata’s claim The tri
al court summarized
what Zapata was asking the
trial court to do and clearly
rejected that request
Essentially, Zapata’s argume
nt is that his court appointed
attorney Angela EHeman mis
led him by advising him tha
could withdraw his guilty ple t he
a at any time prior to final sen
And that further, she con tencing
tinued this deceit by lying
during evidentiary hearings in un de r oat h
this case For this Court to
with Zapata’s arguments, it agr ee
is required to believe not onl
Elleman misled Zapata regard y that
ing his ability to withdraw his
but that she also lied while und plea,
er oath concerning that mislea
advise The Court simply doe ding
s not believe those assertion
EHeman, and rejects Zapata’s s about
arguments in their entirety
A review of the record reveal
s a substantial basis supportin
g the trial
court’s factual findings and, the
refore, those findings are not
clearly erroneous
Having accepted those factua
l findings, we note that the rec
ord supports the
finding that E11eman contin
ued to represent Zapata throug
hout the plea
negotiation process Zapata
had engaged the Commonwe
alth in plea
negotiations in his dual role as
defendant and hybrid counse
l
After this Court’s remand for
a plea withdrawal hearing,
Elleman
testified that once the trial cou
rt found Zapata competent, she
had a choice to
assist Zapata in his plea or ass
ist him at trial Elleman sai
d that Zapata
indicated through his action
s that he desired a plea agreem
ent She testified
13
the proposed plea was acceptable in light of the evide
nce she thought would be
presented at trial Elleman said, “I did not feel I had
a viable defense that
would result in a not guilty or a lesser charge, so that’
s why I recommended the
guilty plea.” Far from abandoning her client, E11eman
assisted Zapata in
making a reasonable choice under the Circumstances
Elleman carried out
Zapata’s wishes to the extent possible and assisted him in reduc
ing the agreed
upon offer by one year on the day the plea was entered
Elleman also obtained
the Alford plea Zapata sought
Furthermore, there is no reasonable possibility that but
for the claimed
inefi‘ective assistance, Zapata would have chosen to go to
trial and face higher
penalties of 20 to 50 years or life imprisonment A revie
w of relevant facts
shows why this is so The cause of death in this case was stra
ngulation—a
slow and violent method of inflictmg death Zapata then fled from
the scene
and crossed state lines to avoid arrest In Zapata’s statements
to the police, he
admitted everyflfing except that his wife was dead when he left
the apartment
However, Zapata’s version of events makes no logical sense
If it were true that
Zapata’s wife were alive when he left their apartment, then his
wife would have
most likely survived bemg choked If someone is strangled and
the pressure
ceases prior to death, the victim will likely start breathing again
unless the
airway has been crushed This would simply not have been a valid
defense at
trial At sentencing, the jury would have also been privy to Zapat
a’s exten sive
criminal history (comprising numerous out of state felony conviction
s,
including one for aggravated rape)
14
Under the facts of this case, we hold
that there was no ineffective
assistance of counsel during plea nego
tiations, much less ineffective assistan
ce
so substantial that it impacted the plea
process Elleman did not “malkle
errors so serious that counsel’s perfor
mance fell outside the wide range of
professxonally competent ass1stance ”
Bronk, 58 S W 3d at 486 (internal
quotations and citations omitted) But even assuming Elleman was ineffect
ive
in her representation of Zapata, her alle
ged “deficient performance [would not
have] so seriously aflected the outcome of the
plea process that, but for the
errors of counsel, there Is a reasonable prob
ability that the defendant would
not have pleaded guilty, but would have msis
ted on going to trial ” Id
We afirm the trial court’s factual findings
related to Zapata’s allegation
of Ineffective assistance, as they were not
clearly erroneous For the foregoing
reasons, the trial court did not err in its refu
sal to allow Zapata to withdraw his
plea on grounds that Elleman’s assistance
was inefi‘ectwe
2 Conflict ofInterest
In Zapata’s first appeal to this Court, we held
“[t]here IS no doubt an
actual conflict wasted in this case Zapata’s counsel was placed in the
untenable position of defending her own inte
rests which were adverse to her
d1ent[’]s Zapata 516 S W 3d at 803 The conflict we
held crusted in that
case only extended to Zapata’s plea withdraw
al hearing, in which he had made
allegations of deficiencies in Elleman’s represen
tauon In the present appeal, ‘
Zapata asserts that the conflict of interest cas
ted even before the plea was
entered, thus rendering his plea involuntary
15
Zapata argues on appeal that “Ms EHeman’s total disagreeme
nt with
Zapata’s election to proceed to trial as a hybrid defense team
was for her a
conflict of interest that undermines the voluntariness of Zapata’s
guilty plea ”
Zapata further states that even zealous advocates may be unawa
re of a
debilitating conflict of mterest.
During the Faretta hearing at which the trial court decided Zapata could
act as hybrid counsel, Elleman stated that she was concerned with
the
possibility that Zapata may ask improper and unethical questions—
or want her
to ask such questions Elleman testified that Zapata “had very stron
g beliefs
that witnesses should be asked questions that were not admissible or
relevant ” For example, E11eman was concerned that Zapata’s delusions about
her worlnng for the FBI and tampering with evidence could give rise to
improper questions Elleman was concerned that Zapata would ask queshons
he thought he had a basis to ask, but in reality, no hams casted
She feared
such potential improper questions could undermine Zapata’s position with the
jury
E11eman described her concern about Zapata asking or expecting her to
ask witnesses improper questions as “much of the conflict going forward
”
Zapata now says that her words concerning a “conflict” were indicative of a
conflict of interest that denied Zapata adequate representation We disag
ree
Given the context of her statement, E11eman was clearly referring to the
“conflict” between her ethical responsibilities as an attorney and unethical
16
questions Zapata, acting as hybrid counsel, may expec
t her to ask This is not
the type of disqualifying conflict our precedent recognizes
While we acknowledge that it was a case about a confli
ct of interest
arising from an attorney's former representation of a client
, we find guidance in
the standard regarding disqualifying conflicts of interest set
out in Marcum u
Scorsone 457 S W 3d 710 (Ky 2015) There we overruled prior
precedent
requiring an attorney be disqualified for the mere appearance
of mpropriety
Instead, we set out a new standard, to wit. “[bIefore a lawye
r is disqualified ,
the complaining party should be required to show an actual confli
ct, not just a
vague and possibly deceiving appearance of impropriety ” In the
case at bar,
Zapata can Show no such actual conflict
Elleman tesufied that “When you co counsel with a client, there are
inherent difficulties with that relationship ” Among these difiiculues
, Elleman
pointed to differing views about the strength of the case and overal
l strategies
that were In Zapata’s best interest We note that Elleman spoke with
Zapata
on numerous occasions after the trial court granted his mouon to act as
hybrid
counsel
Elleman voiced no concerns at the hearing that Zapata’s delusions
interfered with their discussions about which witnesses the defen
se would call,
which witnesses Elleman would cross examine or question on direct
examination, or Zapata’s dealsion about whether to testify In summary,
Elleman tesufied that although Zapata kept putting off making firm and
final
decisions about trial roles for each of them, she did not indicate prob
lems so
17
severe they endangered the attomey client relat
ionship or created an actual
conflict disqualifying her from representing her clien
t Elleman said she
thought the issue of Zapata’s competency would have
to be revisrced
“somewhere down the road ”
“An ‘actual conflict,’ for Sixth Amendment purposes, is
a conflict of
interest that adversely infects counsel’s performance "
Mickens v Taylor, 535
U S 162 172 n5 (2002) In that same vein this Court has stated
where the alleged conflict is raised at some later paint duri
ng post
conviction proceedings, the standard set forth in Cuyl
er v Sullivan,
446 U S 335 ( 1980) controls. That more stringent
standard requires the defendant to demonstrate both that
a
conflict existed and that it prejudiced him Le , that it
adversely
affected his counsel’s performance—in some cognizable
way Id
Samuels v Commonwealth 512 S W 3d 709 712 13 (Ky
2017]
A review of the record does not support a claim that an actua
l conflict
existed, and much less that counsel’s performance was adver
sely affected by
any purported conflict
Disagreements between an attorney and her client over what
questions to
ask witnesses, trial strategy, and strengths of a chent’s case
are a familiar part
of the tnal landscape Those disagreements occur regar
dless of whether a
client has delusions or whether the client is acting as hybri
d counsel Nothing
in the record supports that commumcanon was broken down
between Eneman
and Zapata evincmg some actual conflict affecbng EHeman’s
representation of
her client As noted above, after the trial court allowed Zapa
ta to proc eed as
hybrid counsel, visits, phone calls, and letters continue
d between Ellernan and
Zapata
18
E11eman testified that because Zapata
kept putting 011' final deusions
about how trial responsibilities were goin
g to be divided, she was preparing as
if she were going to handle the entire trial
Elleman’s demsion to prepare for an
entire trial was a prudent course of acti
on absent a written agreement dividing
trial responsibilities The trial court requ
ired that a document listing the
separate trial responSIbilities for Zapata
and E11eman be filed in the record, but
when Zapata entered the guilty plea, the
trial court had yet to set a final
deadline for that document Without a final
agreement reduced to writ ing, it
was entirely possible that Zapata might deci
de at the last minute he would not
handle anything at trial, or perhaps that
he would handle only a minimal
amount It was equally possible Zapata mig
ht dec1 de to handle most of the
trial, or even all of it. E11eman was obligate
d to be prepared for whatev er
eventuality might occur Her trial preparat
ion does not show any evid ence of a
disquaan actual conflict
A conflict of mterest occurs when an atto
rney’s interests are at odds with
her client’s interests In Zapata’s previous
appeal, this Court held that the trial
court should have appointed conflict counsel
at the hearing on Zapata’s monon
to withdraw his guilty plea as Zapata alle
ged E11eman had provided incorrect
legal advice on which he based his deasion
to plead guilty That is the kind of
actual conflict of interest that would disquali
fy an attorney from representing
her client However, Elleman’s concems over
possible improp er questioning of
witnesses by Zapata, her disagreement with
Zapata acting as hybrid counsel,
and her disagreement with the trial court
finding Zapata competent did not use
19
to the necessary level of an actual conflict so as
to require Elleman’s
disqualification from representing Zapata.
Lawyers routinely disagree with the decisions of their
clients and the
decismns of hial courts These disagreements are
everyday realities of
practicmg law Despite these disagreements, lawyers
are charged with
protectlng their client’s interests Were we to hold that
the simple
disagreement here created a conflict, lawyers would have
to withdraw or seek
conflict counsel every time they disageed with a client’s dems
ion That is not a
reasonable or practical approach to the administration ofJus
tice—and not the
sort of disqualifying actual conflict envisioned by our prec
edent.
EHeman assisted Zapata in entenng the plea bargain Zapa
ta, through
E11eman, improved the agreement to his benefit on the day he
entered the plea.
Zapata (again through E11eman) convinced the Commonwe
alth to agree he
could proceed with an Alford plea There was no actual confl
ict of interest that
exhibited an adverse efi'ect on counsel’s performance and
no prejudice to
Zapata. The trial court did not err in denying Zapata’s
motion to withdraw his
plea on grounds of E11eman’s alleged conflict of interest
3 Mum’s incorrect belief that he could withdraw his plea
at any
time
Zapata next argues that the trial court and E11eman both
failed to correct
his mistaken belief that he could withdraw his guilty plea at
any time before
sentencing He asserts that he could not have entered the plea
voluntaril y,
knowingly, and intelligently while harboring this incorrect belie
f that he could
withdraw the plea The problem with Zapata’s assertion is that
it has no basis
20
In Kentucky jurisprudence He would have us craft an
entirely subjective rule
out of whole cloth that would look solely at an individual defen
dant’s assertions
concerning what he believed when entering a plea. If we
were to do so, every
defendant would have grounds to Withdraw his plea agreement
simply by
making an assertion that he did not properly understand some
detail of the
procedures employed once the plea was entered
In Kentucky RCr 8 10 states in pertinent part that [a]t any time befor
e
judgment the court may permit the plea of guilty to be withdrawn and a
plea of not guilty substtuted However, the only language from RCr 8 10
contained 1n Zapata’s motion to enter a guilty plea concerns Zapata’s
options in
the event the trial court were to reject the plea agreement The
only
cucumstance the paperwork identified in which a plea could be withd
rawn was
if the trial court rejected the plea agreement Here, the trial court accep
ted the
plea agreement and that language is inapplicable Given the contents of
Zapata’s signed plea agreement form taken as a whole, his alleged
belief that
he could withdraw his plea at any time before sentencing “no probl
em” was not
reasonable
We do not expect a trial court to disclose and discuss every possible
consequence of a plea during a Bowen plea colloquy That would be
both
impossible and impractical Rather, “[t]he defendant need only be aware of
the
(111801: consequences of the plea the trial court 18 under no consttutional
obligation to inform the defendant of all the possible collateral conse
quences of
21
the plea Commonwealth v Thompson, 548 S W 3d 881 889 (Ky 2018)
(internal citations omitted)
Zapata stated during the Boykm colloquy that among other things
he
understood there would not be a trial, he would not be cross examining
witnesses, he gave up the right to remain silent, and there would be no
appeal
Zapata acknowledged he had read, reviewed, and signed the motion to enter
a
guilty plea which contained a list of his rights It has long been the rule
in this
Commonwealth that acknowledging the written guilty plea form containing a
defendant’s rights is suflic1ent “No cases are cited requiring a judge to read
from the bench a defendant’s rights to a defendant who has already waived
those rights by written waiver, has acknowledged his signature thereto, and
has further acknowledged that he understood those rights ” Commonwealth v
Crawford 789 S W 2d 779 780 (Ky 1990) Although not lengthy (and as
noted, would have been improved by questions directed at Eneman conce
rning
the plea and the Certificate of Counsel), the colloquy in this case was clear and
unequivocal, and provided an opportunity for Zapata to ask questions
Zapata testified on remand at the plea withdrawal hearing that Elleman
told him he could withdraw his plea any time before sentencing, “no problem ”
Elleman teshfied she reviewed the motion to enter a guilty plea with Zapata
and she did not tell Zapata that he could withdraw his guilty plea any time
The two testimonies are at odds with one other
Elleman teshfied that if Zapata could withdraw the plea at any time as he
claimed, then there would be no need to enter a plea The trial court had
22
ample opportunity to observe both Zapata and
Elleman at the plea colloquy
and the remand hearing The trial court clearly
chose to believe Elleman and
to disbelieve Zapata “The trial court had an oppo
rtunity to see the witnesse s
and observe their demeanor on the stand, and recog
nition must be given to its
superior position to Judge their credibility and the
weight to be given their
testimony Kotas 565 S W 2d at 447
Pointing to discrepancies in Elleman’s testimony,
Zapata argues the trial
court erred in believing her testimony rather than his
However, no matter how
vigorous the disagreement, the trial court is tasked
with 9.0ng testimony and
making demsions regarding credibility The trial cour
t had extenswe
experience with both Zapata and Elleman during the
trial and was free to
utilize those prior interactions in determining credibilit
y
Moreover, even though he was given the opportunity to
ask questions of
the court, Zapata did not ask about the possible with
drawal of his plea before
sentencing IfZapata had any doubts before, he shou
ld have known from the
trial judge’s comments at the Boykm hearing that the
plea, if accepted, ended
Zapata’s case The trial Judge made statements such
as, that he was “holding
plea sheets indicating a resolution of the case,” and aske
d Zapata if he
“understood that a guilty plea is in lieu trial meaning,
takes the place of a
trial, and ifI accept this here in a few moments, the case
is over and you
cannot appeal this guilty plea Zapata indicated that he understood that the
case would be over if the trial court accepted his guilt
y plea The trial court
23
and Elleman could not timely cor
rect a misunderstanding of Kentuc
ky law and
procedure by Zapata if they did not
know about it
Elleman’s testimony indicates she
did not know Zapata was under the
belief that he could withdraw his ple
a at any time Zapata and Elleman,
acting
together as hybrid counsel, failed to
bring Zapata’s alleged belief to the
attention of the trial court If Zapata
were to prevail on this cla im, defendants
could claim after a plea that they did
not know or understand a rule of
procedure, a statute, or a rule of evi
dence and because they claim they did
not know or understand the plea mus
t be set as1de It is reasonable to exp
ect
that if an issue is unclear to a def
endant, he or she will either ask cou
nsel or
take advantage of the opportunity the
court provides during the Boykm
colloquy to ask questions and get the
answer he or she needs Zapata’s
answers to the trial court’s questions
in the Boykm colloquy in the contex
t of
the entire case belie his claim that he was
under this mistaken belief regarding
the ability to withdraw his plea. He ack
nowledged to the trial court tha t he
understood that his case would be “ove
r” if the court accepted the plea and
E11eman testified that she had not told
him that he could withdraw his plea
at
any tune before sentencing
In this case, the trial court found Zap
ata to be savvy and smart The
trial judge was in the best position to ass
ess credibility The trial court’s
findings of fact were not clearly errone
ous and it did not err in denying
Zapata’s motion based on his alleged mis
taken belief about the court’s
discretion in allowing him to withdraw his
plea
24
B The trial court did not abuse
its discretion in denying Zapata
motion to withdraw his plea ’s
Zapata asserts the trial court erred
when it failed to exercise its
discretion under RCr 8 10 and set
aside his guilty plea In making thi
s
argument, Zapata restates his oth
er arguments and then claims tha
t even if
the trial court properly found the ple
a was voluntary, the trial court sho
uld
have exermsed its discretion and all
owed the plea to be Withdrawn
A plea may be withdrawn if the tria
l court, In its dweretion, permits the
withdrawal “[T]he rule makes clear tha
t the trial cou rt may permit the
defendant to withdraw even a valid plea
. Under our rule, this latter decision
is
one addressed solely to the trial cour
t’s sound discretion ” Pndham, 394
S W 3d at 885 “The test for abuse of discretion is whe
ther the trial Judge’s
desiswn was arbitrary, unreasonable
, unfair, or unsupported by sound lega
l
principles Goodyear Tire &Rubber Co D Thomps
on, 11 S W 3d 575 581
(2000) (Citing Commonwealth 2) English,
993 S W 2d 941 945 (1999))
Zapata seeks to set aside his guilty ple
a based on either incorrect advice
from his attorney or his own misund
erstanding that he could withdraw his
guilty plea at any tune He masts eith
er of those reasons const1tut e a “fair and
just reason ” The “fair and just reason
” language is found In the American Bar
Assouation Criminal Justice Standa
rds R 12 2 1(a) (1999) and in Federa
l
Criminal Rules of Procedure 1 1(d)(2) (B)
This is an attempt to create a new
test, not found in the Commonwealth
's Rules of Civil or Criminal Proced
ure or
jurisprudence In the Commonwealth
, our Rules leave the withdrawal of a
voluntary plea to the discretion of the
trial court based upon the totality of
the
25
Circumstances in a case We trust our trial courts in makin
g those
determinauons and exercising their discretion
In Pridham, 394 S W 3d at 885 the Appellant asked this Court for
such
relief There, we stated
Cox would have us read into the rule a right of withdrawal
any time a defendant establishes “a fair and Just reason” for it,
provided that withdrawal would not unduly prejudice the
Commonwealth, and he contends that his reason for wanting to
withdraw his plea meets that standard Cf Fed R Grim Proc
1 1(d)(2)(B) ( A defendant may withdraw a plea of guilty after
the court accepts the plea, but before it imposes sentence if
the defendant can Show a fair and just reason for requesting the
withdrawal ”)
Cox did not present this claim to the trial court, and so it
was not properly preserved for our review We decline to address it,
therefore, beyond observing that the denial of Cox’s motion to
withdraw his plea was not a palpable error so as to entitle Cox to
relief under RCr 10 26
Id
More recently, the Court of Appeals took up this issue in Blanton v
Commonwealth, 516 S W 3d 352 356 57 (Ky App 2017) That court
addressed the issue, stating
Blanton has requested that this Court apply the test for
withdrawing a guilty plea under Federal Rules of Criminal
Procedure 11(d)(2) (13) as set forth in United States v Hockenberry
730 F 3d 645 (6th Cir 2013) That federal rule permits a
defendant to Withdraw his guilty plea if he “can Show a fair and
Just reason for requesting the withdrawal ” However, the
Commonwealth points out that “[t]he precise terms of Rule 1 1 are
not constltuuonally applicable to the state courts ” Roddy 1)
Black, 516 F 2d 1380, 1383 (6th Cir 1975)
Id
26
Assuming this issue was properly
preserved below, we agree with the
above cited language in the Court
ofAppeals’ Blanton decrsion and dec
line to
change the standard for withdrawi
ng guilty pleas in Kentucky Our Rul
es of
Criminal Procedure set out a differen
t rule entrusting plea withdrawal to
the
discretion of the trial court A who
le body of case law has develo ped around
this Rule and we will not upset that bal
ance
Zapata further claims the trial court
erred because, under the totality of
the Circumstances, even without find
ing the guilty plea involuntary, the
trial
court abused its discretion Zapata
argues remand is mandated and that
upon remand this Court must order the
trial court to allow Zapata to withdr
aw
his guilty plea We disagree
“The essence of a discretionary power
is that the person or persons
exercising it may choose which of seve
ral courses will be followed ” Franklin
Guy Ky U Malone 957 S W2d 195201 (Ky 1997) ovenuled on other
grounds by Commonwealth v Horns 59
S W 3d 896 (Ky 2001) As we noted
above, the exercise of discrehon to all
ow for withdrawing a guilty plea is hel
d by
the trial court After review of the rec
ord in this case, we hol d that the trial
court did not abuse that discrehon in
declining to allow Zapata to withdraw
his
guilty plea.
III CONCLUSION
After careful review of the issues,
we affirm the trial court’s denial
of
Zapata’s motion to withdraw his guilty plea
.
All sitting All concur
27
COUNSEL FOR APPELLANT
Joseph V Aprile II
Lynch Cox Gilman as Goodman P
SC
COUNSEL FOR APPELLEE
Daniel Jay Cameron
Attorney General of Kentucky
James Daryl Havey
Assistant Attorney General
Kenneth Wayne Riggs
Assistant Attorney General
28