Tervanda Tobin v. Commonwealth of Kentucky ( 2021 )

RENDERED: APRIL 23, 2021; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0606-DG
TERVANDA TOBIN APPELLANT
ON REVIEW FROM JEFFERSON CIRCUIT COURT
v. HONORABLE A.C. MCKAY CHAUVIN, JUDGE
ACTION NO. 14-XX-000066
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: CALDWELL, JONES, AND KRAMER, JUDGES.
JONES, JUDGE: Tervanda Tobin seeks discretionary review of the Jefferson
Circuit Court’s opinion and order. The circuit court affirmed the district court’s
denial of Tobin’s motion to withdraw her guilty plea, vacated the district court’s
order to revoke her conditionally discharged sentence, and remanded the matter to
the district court for a new revocation hearing. Tobin sought our review of the
circuit court’s decision regarding the motion to withdraw her guilty plea. After
careful consideration, we reverse the circuit court’s denial of the motion to
withdraw the guilty plea and remand to district court for further proceedings.
I. BACKGROUND
After being involved in a motor vehicle collision the previous month,
Tobin appeared in Jefferson District Court on July 16, 2012, for arraignment on a
charge of failure to maintain insurance. Pursuant to customary practice in
Jefferson District Court, “the presiding district court judge overviewed the rights of
a criminal defendant to those present in the courtroom before calling individual
cases.” (Appellant’s Brief at 1.) The district judge informed the gathered
defendants of their rights as follows: the right to remain silent; the right to an
attorney; the right to a public defender, if the court determined a defendant could
not afford an attorney; the right to trial by jury; the right to call witnesses; the right
to confront witnesses; and the right to appeal an adverse decision of the court.
Following this group colloquy, the district court called the individual cases on its
docket, which included Tobin’s arraignment. She appeared without counsel. The
district court did not inquire as to whether she wanted an attorney, nor did it repeat
any of the other elements of the group colloquy. The court continued Tobin’s case
after entering a plea of not guilty for her.
Less than two months later, Tobin appeared in district court to enter a
guilty plea she had negotiated with the Commonwealth without the assistance of
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counsel. As noted below, Tobin’s guilty plea form does not appear in the record.
Under the terms of the plea, Tobin agreed to the maximum term of ninety days’
incarceration and a fine of $1,000.00, conditionally discharged for two years. As
part of the conditions for her release, Tobin agreed to make restitution in the
amount of $2,811.02, payable at the rate of $130.00 per month. The district court
asked Tobin if she had enough time to examine the guilty plea form. She
answered, “Yes.” The district court then asked if Tobin had read and understood
the plea form. Again, Tobin responded in the affirmative. The district court then
asked how Tobin pleaded to the charge, and she replied, “Guilty.” The district
court accepted her plea and orally informed her of the conditionally discharged
fine and sentence. The court then stressed that she must make her restitution
payments in a timely fashion and that failing to do so would violate the terms of
her plea.
Unfortunately, Tobin fell behind in her restitution payments within a
few months of her sentence. At a hearing on January 29, 2013, the Commonwealth
moved to revoke her conditional discharge. The district court continued the matter
for another month and urged Tobin to make her restitution payments. In February,
Tobin once more appeared before the district court. She informed the court that
she had lost her job and was trying to find work, which is why she could not make
the payments. The district court patiently explained that the restitution payments
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were not optional and failing to make those payments would land her in jail. The
district court continued the matter at least twice more. On April 26, 2013, the
district court heard the Commonwealth’s motion to revoke because Tobin was over
$300.00 in arrears on her restitution. The district court asked Tobin if she had an
attorney. She answered in the negative, pointing out that she “[had not] had an
attorney the whole time [she had] been coming to court.” The district court stated,
“You might need an attorney, but right now it looks like you’re probably going to
jail for ninety days.” This is the only time on the record in which Tobin and the
district court spoke about the possibility of counsel in her case. After noting the
absence of other violations on Tobin’s record, the district court continued the case
once more. On June 27, 2013, Tobin failed to appear for her hearing. The district
court sentenced her in absentia to serve the ninety-day sentence and issued a
warrant.
Over a year later, on October 27, 2014, Tobin was apprehended on the
outstanding warrant and arraigned for resisting arrest the next day. For the first
time, the district court appointed counsel for Tobin, and Tobin moved the circuit
court to set aside her earlier guilty plea. As grounds for the motion, Tobin argued
she did not understand she had the right to the services of a public defender due to
her indigence. Furthermore, Tobin’s motion asserted she had not knowingly,
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intelligently, and voluntarily waived her right to counsel in the previous
proceedings.
In a hearing on the motion, the district court ruled that Tobin gave a
knowing and voluntary plea. The district court pointed out that Tobin should have
heard about her right to an attorney when the judge recited it during the group
colloquy. The district court acknowledged that the record does not indicate
whether Tobin was in the courtroom during the group colloquy, but added that
defendants are required to be present for it. The district court then ruled that Tobin
was also aware of her right to an attorney because the standardized guilty plea
form, which she signed, informed her of such.1 Furthermore, the district court
determined that the plea was not out of line with other, similarly situated
1
Tobin’s signed guilty plea form is not part of the record and appears to be lost, along with
much of the district court’s original file in this case. However, the video record shows Tobin’s
colloquy with the district court in which she acknowledged reading and signing the form. The
standardized form motion to enter a guilty plea, currently designated AOC-491, lists a
defendant’s constitutional rights, in bold type, as follows:
I further understand the Constitution guarantees to me the
following rights:
(a) The right not to testify against myself;
(b) The right to a speedy and public trial by jury at which I
would be represented by counsel and the Commonwealth
would have to prove my guilt beyond a reasonable doubt;
(c) The right to confront and cross-examine all witnesses
called to testify against me;
(d) The right to produce any evidence, including attendance of
witnesses, in my favor;
(e) The right to appeal my case to a higher court.
I understand that if I plead “GUILTY,” I waive these rights.
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defendants, and Tobin clearly understood the consequences of her repeated failures
to pay restitution as required by her plea.
Tobin appealed the district court’s ruling to Jefferson Circuit Court.
After briefing and an oral argument held on March 4, 2015, the circuit court ruled
that Tobin had waived her right to counsel by signing her guilty plea. The circuit
court noted that, “like a Russian nesting doll,” the guilty plea form contains
explicit waivers of all other rights, including the right to counsel. The circuit court
acknowledged that district court moves more quickly and differently than one
accustomed to circuit court would expect. The circuit court also acknowledged
that it would be better practice for a district court to recite a defendant’s rights
before accepting the plea. Ultimately, however, the circuit court held that the law
only required the district court to ask a defendant entering a guilty plea whether he
or she read the form and signed it.
After a significant delay caused by an apparent clerical error,2 the
circuit court entered its opinion and order on April 12, 2019. The circuit court’s
2
The circuit court explained the delay in a footnote:
In the absence of an AOC-280 [Notice of Submission of Case for
Final Adjudication], the matter has been “under submission” but
unattended to since January of 2015. This blunder was only
discovered by the Court shortly before it was brought to the
Court’s attention by counsel. The undersigned sincerely
apologizes for any inconvenience and distress to the parties and
counsel in consequence of this unprecedented but wholly
unacceptable oversight.
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order denied Tobin’s motion to set aside her guilty plea but vacated the district
court’s order to revoke her conditionally discharged sentence, finding the
revocation in absentia a violation of Tobin’s right to due process. The circuit court
then remanded the case to the district court for a new revocation hearing. We
subsequently granted Tobin’s petition for discretionary review.
II. ANALYSIS
Tobin presents three arguments for our review. In the first, she argues
the district court committed structural error by failing to ensure she waived her
fundamental right to counsel. Upon review of the record, we agree that the record
is devoid of any indication that Tobin waived her right to counsel during plea
negotiations, a critical stage of the prosecution against her. Because we are
required to reverse and remand on that basis, we need not consider Tobin’s
remaining arguments on appeal.
First, however, as a procedural matter, the Commonwealth urges us to
affirm based on defects in Tobin’s RCr3 11.42 motion, the vehicle by which she
brought this matter before the circuit court. The Commonwealth asserts the motion
was not signed or verified by the movant, as required by RCr 11.42(2), warranting
a summary dismissal of her motion, and we should affirm the circuit court on those
grounds alone. However, Tobin correctly points out that this argument, touching
3
Kentucky Rules of Criminal Procedure.
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upon particular case jurisdiction, was not raised in the circuit court and was thus
waived. The Kentucky Supreme Court considered a similar question in a recent
case:
When the Commonwealth challenged in the Court
of Appeals the trial court’s grant of shock probation on
the basis that the trial court lacked jurisdiction to do so,
the Commonwealth was challenging the trial court’s
jurisdiction over the case. But the Commonwealth failed
to present that challenge to the trial court. [P]articular-
case jurisdiction is subject to waiver. Because the
Commonwealth did not raise th[is] jurisdictional issue
until appeal[, the Commonwealth] waived any issue
relating to particular-case jurisdiction.
Martin v. Commonwealth, 576 S.W.3d 120, 122 (Ky. 2019) (citations and internal
quotation marks omitted).
Turning to the substantial issue of Tobin’s right to counsel, we begin
by noting that the Sixth Amendment’s right to counsel applies to matters occurring
in district court when those matters could result in imprisonment—regardless of
the length of the sentence. “It has been noted in Argersinger v. Hamlin, 407 U.S.
25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972), that no person may be imprisoned for
any offense whether it is classified in the traditional sense as felony, misdemeanor
or petty, unless represented by counsel.” Lewis v. Lewis, 875 S.W.2d 862, 865
(Ky. 1993). The right to counsel is not merely a trial right. “It is well-settled that a
criminal defendant has a right to be represented by counsel that extends beyond the
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actual trial to every critical stage of the proceedings.” Stone v. Commonwealth,
217 S.W.3d 233, 237 (Ky. 2007) (citations omitted).
A plea negotiation is one such critical stage. The Kentucky Supreme
Court has made it very clear that the Sixth Amendment’s right to counsel is
particularly important in the context of plea negotiations.
It is axiomatic that the advice of counsel is vitally
important to a criminal defendant’s understanding of a
guilty plea agreement. The decision to accept or reject a
plea offer necessarily involves an analysis of the charges,
the nature and admissibility of the Commonwealth’s
evidence, and an accurate assessment of the defendant’s
actual guilt. “[A]n intelligent assessment of the relative
advantages of pleading guilty is frequently impossible
without the assistance of an attorney.”
Id. at 239 (quoting Brady v. United States, 397 U.S. 742, 748 n.6, 90 S. Ct. 1463,
1469, 25 L. Ed. 2d 747 (1970)). “[P]lea negotiations, guilty plea hearings, and
sentencing hearings are all ‘critical stages’ at which the right to counsel attaches.”
Id. (citations omitted). The Stone Court ultimately held that “we are bound by the
U.S. Supreme Court’s very clear dictates that the complete denial of counsel at a
critical stage is reversible error per se, not subject to harmless error review.” Id. at
240 (citation omitted).
Of course, like any other constitutional right, a criminal defendant
may waive his or her right to counsel. “Waiver of the right to counsel, as of
constitutional rights in the criminal process generally, must be a ‘knowing,
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intelligent ac[t] done with sufficient awareness of the relevant circumstances.’”
Iowa v. Tovar, 541 U.S. 77, 81, 124 S. Ct. 1379, 1383, 158 L. Ed. 2d 209 (2004)
(quoting Brady, 397 U.S. at 748, 90 S. Ct. at 1469). “Tovar involves waiver of
counsel to enter a guilty plea[.]” Depp v. Commonwealth, 278 S.W.3d 615, 617
(Ky. 2009). Commenting on Tovar, the Kentucky Supreme Court stated, “While
what is required at different stages of the trial may vary, the Court clarified as to
the Sixth Amendment that the constitutional minimum for determining whether a
waiver was ‘knowing and intelligent’ is that the accused be made sufficiently
aware of his right to have counsel present and of the possible consequences of a
decision to forgo the aid of counsel.” Depp, 278 S.W.3d at 618. Finally, it is
significant that no “magic words” are required to find a defendant has made a
“voluntary, knowing and intelligent” waiver; only a review of the record can verify
that such a waiver took place. Id. at 618-19.
The Commonwealth argues Tobin was fully informed of her right to
counsel when she was arraigned, when she executed her guilty plea form, and
when she entered her plea in open court. Although it is true that the district court’s
group colloquy informed the gathered defendants of the right to counsel, there is
nothing in the record to indicate Tobin actually heard the district court’s reading
and elected to waive her right to counsel at this stage. The record is silent on this
point. “Presuming waiver from a silent record is impermissible. The record must
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show, or there must be an allegation and evidence which show, that an accused
was offered counsel but intelligently and understandingly rejected the offer.
Anything less is not waiver.” Carnley v. Cochran, 369 U.S. 506, 516, 82 S. Ct.
884, 890, 8 L. Ed. 2d 70 (1962).
Next, the Commonwealth argues Tobin was fully informed of her
right to counsel when she executed her guilty plea form. As noted previously,
Tobin’s district court file disappeared at some point in the proceedings between
district court and circuit court. Her signed guilty plea form is not part of the
record, and there is nothing in the video record to suggest Tobin had the aid of
counsel when she executed the guilty plea form or that she knowingly, voluntarily,
and intelligently waived such counsel. The video record appears to indicate that
Tobin was not advised by counsel when she negotiated the plea; Tobin’s counsel
on appeal argued to the circuit court that Tobin accepted the maximum penalty for
the pleaded offense and that counsel would not have advised her to take that offer.
Finally, the Commonwealth argues Tobin was informed of her right to
counsel when she entered the guilty plea in open court. This is critical, because
this is the only evidence in the record regarding the circumstances of her plea.
Here, the district court asked if Tobin had enough time to review the guilty plea,
whether she read it and understood it, and whether she understood she would be
giving up the right to a trial. Tobin answered all of these things in the affirmative.
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Notably absent, however, was whether Tobin understood she had a right to an
attorney. The missing guilty plea form, assuming it was identical to AOC-491,
does contain language explicitly stating a criminal defendant has the right to
counsel during trial. However, there is nothing in the video record, and nothing in
the standardized form, which explicitly states that the defendant has the right to
counsel when negotiating a guilty plea or that counsel was waived.
Indeed, the standardized guilty plea form, AOC-491, presumes the
presence of an attorney during plea negotiations: “Comes the Defendant, in person
and with aid of counsel, and respectfully moves this Court to allow him/her to
withdraw his/her former plea of “NOT GUILTY” and enter a plea of “GUILTY”
as set forth below. . . .” (Emphasis added.) There are multiple other references to
counsel in the form, including a section at the bottom entitled “Certificate of
Counsel,” wherein the defendant’s attorney can attest to his or her knowledge and
belief (1) the defendant understands the allegations, and (2) the defendant
knowingly, intelligently, and voluntarily pleads guilty. Based on the state of the
record, we do not know what version of the guilty plea form Tobin may have
signed. We do not know if an attorney explained the terms of the guilty plea to
her. We do not know if Tobin signed any other forms, similarly lost, indicating
she waived her right to counsel during plea negotiation. What we do know is that,
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pursuant to Carnley v. Cochran, supra, we cannot presume waiver of the right to
counsel from a silent record.
In holding the district court met its obligation to ensure Tobin’s plea
was knowing, intelligent, and voluntary, the circuit court relied on Commonwealth
v. Crawford, 789 S.W.2d 779 (Ky. 1990). In Crawford, the Supreme Court held a
waiver of Boykin4 rights was sufficiently demonstrated when the defendant “has
already waived those rights by written waiver, has acknowledged his signature
thereto, and has further acknowledged that he understood those rights.” Crawford,
789 S.W.2d at 780. However, the Supreme Court also pointed out that “[t]he
validity of a guilty plea is determined not by reference to some magic incantation
recited at the time it was taken but from the totality of the circumstances
surrounding it.” Id. (quoting Kotas v. Commonwealth, 565 S.W.2d 445, 447 (Ky.
1978)). The circumstances in Crawford bore significant dissimilarities to the facts
of this case. In Crawford, the trial court had evidence, in the form of a signed
“Certificate of Counsel,” showing “that counsel had fully explained the indictment
herein and that the waiver of rights entered by Crawford had been entered freely
and voluntarily.” Id. Here, the record gives no similar assurances. Without any
indication that Tobin’s constitutional right to counsel at a critical stage was
4
Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).
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protected, or that she gave a valid waiver of that right, we are forced to conclude
that the district court erroneously accepted her guilty plea.
III. CONCLUSION
For the foregoing reasons, we reverse the opinion and order of the
Jefferson Circuit Court denying Tobin’s motion to withdraw her guilty plea, and
we remand this matter to district court for further proceedings consistent with this
Opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Yvette DeLaGuardia Daniel Cameron
Louisville, Kentucky Attorney General of Kentucky
Michael J. O’Connell
Jefferson County Attorney
David A. Sexton
Special Assistant Attorney General
Louisville, Kentucky
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