Timothy Robinson v. Commonwealth of Kentucky

RENDERED: JULY 8, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1576-MR
TIMOTHY ROBINSON APPELLANT
APPEAL FROM LINCOLN CIRCUIT COURT
v. HONORABLE JERRY J. COX, JUDGE
ACTION NO. 13-CR-00063-001
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: DIXON, JONES, AND K. THOMPSON, JUDGES.
JONES, JUDGE: The appellant, Timothy Robinson, appeals the Lincoln Circuit
Court’s November 18, 2020 order denying his RCr1 11.42 motion to vacate his
sentence. Robinson alleges that his trial counsel was ineffective in failing to
inform him of the full range of penalties he faced if he elected to proceed to trial
instead of accepting the Commonwealth’s plea offer. Having reviewed the record
and being otherwise sufficiently advised, we affirm.
1
Kentucky Rules of Criminal Procedure.
I. BACKGROUND
In October of 2013, Robinson was indicted and charged with one
count each of first-degree sodomy (victim less than twelve years old),2 incest
(victim less than twelve years old),3 and use of a minor in a sexual performance
(victim less than twelve years old).4 The indictment alleged that these offenses had
taken place between January 1, 2009, and July 30, 2012, and had been committed
against Robinson’s minor son, Z.R. At the time the indictment was issued,
Robinson was already serving a twenty-year sentence resulting from a 2012
conviction. Assistant Public Advocate Stacy Coontz was appointed to represent
Robinson.
The Commonwealth offered to resolve all charges against Robinson in
exchange for Robinson’s serving a twenty-one-year sentence, which would run
concurrently with the sentence Robinson was already serving for the 2012
conviction. A note taken by Attorney Coontz, which is contained in the record,
indicates that Robinson stated that he would consider the offer, but he did not want
to have to give testimony against his brother, who had been indicted on charges
related to those against Robinson. From the record, it appears that Attorney
2
Kentucky Revised Statutes (KRS) 510.070(1)(b), a Class A felony.
3
KRS 530.020(2)(c), a Class A felony.
4
KRS 531.310(2)(b), a Class B felony.
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Coontz proposed a counteroffer to the Commonwealth whereby Robinson would
plead guilty to all charges in return for the Commonwealth’s agreement to
recommend that Robinson serve a twenty-year sentence, to run concurrently with
the sentence Robinson was already serving.
On April 4, 2014, Robinson filed a motion to enter a guilty plea,
accepting the Commonwealth’s amended offer of a sentence of twenty years to run
concurrently with his present sentence. However, before the trial court accepted
Robinson’s guilty plea, he changed his mind and withdrew the motion. During a
pretrial hearing, the trial court confirmed on the record that Robinson had
consulted with his attorney and was knowingly rejecting all the Commonwealth’s
plea offers.
The case proceeded to trial on April 14, 2014. On the morning of
trial, the trial court again confirmed there were no outstanding plea offers, and the
prior offers were communicated to and knowingly rejected by Robinson.
Robinson’s trial lasted three days, during which Z.R. gave detailed testimony about
the acts Robinson had committed against him. Robinson was found guilty on all
charges. The jury recommended sentences of life imprisonment for sodomy, fifty
years’ imprisonment for incest, and twenty years’ imprisonment for use of a minor
in a sexual performance. The trial court entered final judgment and sentence on
July 11, 2014, sentencing Robinson in accordance with the jury’s recommendation.
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Upon direct appeal to the Kentucky Supreme Court, Robinson’s conviction and
sentence were affirmed. Robinson v. Commonwealth, No. 2014-SC-000467-MR,
2015 WL 4979794 (Ky. Aug. 20, 2015).
Robinson filed his RCr 11.42 motion in August 2016 raising four
claims, including the instant claim that Attorney Coontz failed to properly advise
him of the full range of penalties in connection with the Commonwealth’s plea
agreement. On December 12, 2016, the trial court denied Robinson’s motion
without holding an evidentiary hearing. Robinson appealed the trial court’s denial
to our Court. While we affirmed the trial court’s denial of relief as to three of
Robinson’s claims, we vacated the denial of Robinson’s claim that Attorney
Coontz was ineffective in connection with the Commonwealth’s plea offer.
Robinson v. Commonwealth, No. 2017-CA-000883-MR, 2019 WL 1422565, at *1
(Ky. App. Mar. 29, 2019). To this end, we noted that Robinson alleged that
Attorney Coontz never told him that he could face life in prison if convicted at
trial, and nothing in the record “indicate[d] whether trial counsel informed
Robinson of the maximum sentences he faced if he elected to proceed to trial.” Id.
at *3. As such, we remanded the advice of counsel claim with instructions for the
trial court to conduct an evidentiary hearing with respect to the advice Attorney
Coontz gave Robinson in connection with the Commonwealth’s plea agreement.
Id. at *5.
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On remand, in accordance with our instructions, the trial court
conducted an evidentiary hearing on November 13, 2020. Robinson and Attorney
Coontz both testified at the evidentiary hearing. Attorney Coontz testified that:
(1) she advised Robinson that the sentencing range was 20 to 50 years to life
imprisonment; (2) she told him that, if he did not accept this offer, he could die in
prison; (3) she told Robinson it was a terrible idea not to take the plea; and (4) after
the verdict was rendered, Robinson turned to her and admitted he should have
taken the plea. In contrast, Robinson testified that Attorney Coontz never
told him what penalty he faced, and when discussing the plea offers, they only
discussed trial strategy. He further testified that the first time he discovered he
was facing a life sentence was when the jury’s verdict was read at trial.
Following the hearing, the trial court entered an order denying
Robinson’s motion to vacate. The denial was based on the trial court’s finding that
Attorney Coontz did in fact advise Robinson that he could be sentenced to life in
prison if he was convicted at trial and urged him to accept the plea agreement.
Robinson’s assertion is that his counsel failed to
advise him on whether he should accept the
Commonwealth’s offer of a guilty plea. However,
relying on the notes provided by counsel and the
arguments brought by the respective parties, the Court
does not find Robinson’s allegations credible. The
record shows that, had Robinson accepted the offer, he
would have received a sentence running concurrent with
a sentence he was already serving. The only difference
would have been his parole eligibility. Considering the
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charges brought against Robinson, counsel’s experience
as an attorney, and the fact that Robinson had already
planned to accept the offer until he spoke with people
that were not his counsel, the Court finds counsel’s claim
that she told Robinson he could spend life in prison,
while trying to dissuade him to change his decision to
accept the plea, more credible. Because counsel testified
under oath that she informed Robinson that he could
spend life in prison if he went to trial, the Court cannot
find that counsel “made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.”
(Record (R.) at 410) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.
Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984)).
This appeal followed.
II. ANALYSIS
In our prior Opinion, we set out the law with respect to ineffective
assistance of counsel claims predicated on the failure to properly advise a
defendant during plea negotiations. Therein, we explained:
The United States Supreme Court has held that a
defendant has the Sixth Amendment right to effective
assistance of counsel in considering whether to accept a
plea bargain. Lafler v. Cooper, 566 U.S. 156, 168, 132 S.
Ct. 1376, 1387, 182 L. Ed. 2d 398 (2012). Trial counsel
is obligated to “advise the client of ‘the advantages and
disadvantages of a plea agreement.’” Padilla v.
Kentucky, 559 U.S. 356, 370, 130 S. Ct. 1473, 1484, 176
L. Ed. 2d 284 (2010) (quoting Libretti v. United States,
516 U.S. 29, 50-51, 116 S. Ct. 356, 133 L. Ed. 2d 271(1995)). A reasonably competent attorney would be
well-aware that Robinson could be sentenced to life
imprisonment if convicted on the charges against him, as
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the sentencing range for Class A felonies is clearly stated
in KRS 532.060. If Robinson’s allegations that trial
counsel did not advise him that he could be sentenced to
life in prison are true, then trial counsel’s performance
was ineffective. If the right to effective assistance of
counsel during plea negotiations is denied, “prejudice can
be shown if loss of the plea opportunity led to a trial
resulting in . . . the imposition of a more severe
sentence.” Lafler, 566 U.S. at 168, 132 S. Ct. at 1387.
Robinson, 2019 WL 1422565, at *3. We then observed that the record did not
conclusively establish whether or not Attorney Coontz advised Robinson of the
possible sentencing ranges were he to reject the plea and proceed to trial requiring
an evidentiary hearing. Id.Both Attorney Coontz and Robinson testified at the evidentiary
hearing. They gave markedly different accounts of what was discussed prior to
Robinson’s decision to reject the plea agreement. Most notably, Attorney Coontz
testified that she explicitly informed Robinson that if he rejected the plea
agreement and was found guilty at trial, he might very well be sentenced to spend
the rest of his life in jail. In contrast, Robinson testified that he did not realize he
was facing the possibility of a life sentence until after the jury returned its verdict
against him. Ultimately, the trial court concluded that Attorney Coontz’s
testimony was more credible and, based on her testimony, found that Attorney
Coontz “informed Robinson that he could spend life in prison if he went to trial[.]”
(R. at 410.)
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Robinson argues that the lack of any mention of the range of penalties
in Attorney Coontz’s contemporaneous notes undermines her testimony. However,
this fact does not compel a rejection of her testimony, and the trial court detailed
the reasons it found Attorney Coontz to be the more credible witness. It is not our
place to reweigh the evidence. “[T]he standard of review in RCr 11.42
proceedings, when the trial court conducts an evidentiary hearing, requires that the
reviewing court must defer to the determinations of fact and witness credibility
made by the trial judge.” Commonwealth v. Robertson, 431 S.W.3d 430, 435 (Ky.
App. 2013).
Based on Attorney Coontz’s testimony, the trial court found that
Robinson was appropriately advised on the sentencing range should he be
convicted at trial. Accordingly, the trial court concluded that Attorney Coontz was
not ineffective. Attorney Coontz’s testimony supports the trial court’s findings,
and its conclusions of law are in line with our prior Opinion and established
precedent. As such, we can discern no reversible error.
III. CONCLUSION
For the reasons set forth above, we affirm the Lincoln Circuit Court.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Timothy Wayne Robinson, pro se Daniel Cameron
Burgin, Kentucky Attorney General of Kentucky
Christina L. Romano
Assistant Attorney General
Frankfort, Kentucky
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