Carrigan v. Commonwealth

• Citation: 414 S.W.3d 16
• Decision Date: 27 September 2013
• Docket Number: No. 2012–CA–000841–MR.,2012–CA–000841–MR.
• Parties: Michael CARRIGAN, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

414 S.W.3d 16

Michael CARRIGAN, Appellant

v.COMMONWEALTH of Kentucky, Appellee.

No. 2012–CA–000841–MR.

Court of Appeals of Kentucky.

Sept. 13, 2013.

As Modified Sept. 27, 2013.

Shannon Dupree, Assistant Public Advocate, Frankfort, KY, for Appellant.

Jack Conway, Attorney General of Kentucky, Todd D. Ferguson, Assistant Attorney General, Frankfort, KY, for Appellee.

Before CAPERTON, COMBS, and LAMBERT, Judges.

OPINION

COMBS, Judge:

Joseph Michael Carrigan appeals the judgment of the Barren Circuit Court which found him guilty of nineteen criminal offenses and sentenced him to a total of ten-years' incarceration. After our review, we vacate and remand.

On May 26, 2011, a grand jury indicted Carrigan of nineteen counts of various felonies and driving misdemeanors. Carrigan appeared in Barren District Court for arraignment on June 27, 2011. At that time, he told the court that he was trying to hire an attorney. Carrigan also stated to the court that he did not understand the first-degree robbery charge. The court advised him to consult with counsel. The Department of Public Advocacy (DPA) represented Carrigan at the arraignment. On July 11, 2011, Carrigan appeared in Barren Circuit Court. His counsel argued for bond reduction and then withdrew from representing Carrigan.

Two days later, Carrigan informed the court that he was confident that he would hire someone but he did not know exactly when he would have counsel. On August 1, 2011, the Commonwealth advised the court that it had extended plea offers to Carrigan and to his co-defendant. Carrigan was still not represented by counsel at this point. An attorney informed the court that he had been retained by Carrigan's father to merely review the case.

Two weeks later, that same attorney informed the court that he had declined to represent Carrigan. Carrigan then told the court that he intended to hire another attorney, and the court set a trial date of December 8, 2011.

On September 26, 2011, Carrigan informed the court that he was still without counsel. He stated that his family was trying to “work out the money situation.” On October 17, 2011, Carrigan reported that he had spoken to an attorney but that an agreement had not been finalized. On October 31, 2011, counsel appeared in court with Carrigan, but she had not entered an appearance at that time. She also appeared with Carrigan for a pre-trial conference on December 5, 2011. The Commonwealth reported that Carrigan and his co-defendant had rejected plea offers and had proposed counter-offers.

On December 8, 2011, Carrigan entered a plea of guilty. Notably, one of the charges to which he pled was a first-degree robbery charge, which is categorized as a violent offense in Kentucky Revised Statute[s] (KRS) 439.3401(1)( l ). At the date scheduled for sentencing, January 30, 2012, the court informed the Commonwealth and Carrigan's counsel that it had received a letter from Carrigan in which he expressed his desire to withdraw his guilty plea. The letter had indicated that Carrigan admitted he was guilty of crimes-but that he did not intend to plead guilty to a violent crime. Carrigan's attorney responded by asking for some time to file the motion to withdraw the plea. The court then passed sentencing until the following week.

On February 6, 2012, Carrigan's counsel advised the court that after reviewing Carrigan's letter, she would not be filing a motion to withdraw the guilty plea. Carrigan and his father had begun their search for an attorney who would file the motion. The court once again continued the sentencing.

Carrigan appeared for sentencing again on February 20, 2012. He still had not found an attorney who was willing to file a motion to withdraw his plea. Carrigan's counsel moved to withdraw her representation, and Carrigan said that he would obtain other counsel as soon as possible. The court continued sentencing.

On March 19, 2012, Carrigan appeared for sentencing again but was still without counsel. The court informed Carrigan that as a county prisoner, he was an expense to the county; therefore, they needed to proceed with sentencing soon. Carrigan expressed that he had been displeased with his former counsel's representation and that he was still attempting to retain counsel. The court continued the sentencing hearing for two weeks.

On April 2, 2012, the court called another sentencing hearing for Carrigan. It allowed Carrigan to explain that he had not found counsel because his father had not been able to find an attorney whose rates they could afford. All their money had been spent on Carrigan's former counsel. The court told Carrigan that the sentencing would occur in two weeks. Carrigan reiterated that his family was having difficulty “coming up with the money” and that he was dissatisfied with his former counsel's work.

On April 16, 2012, the court began by declaring that it needed to proceed with sentencing, stating that if Carrigan later obtained counsel, he could file an appeal. The court also stated that it would not allow Carrigan to withdraw his plea based on the content of the letter that Carrigan had sent. The court acknowledged that Carrigan had pled guilty to a violent crime but that he did not consider himself to be violent.

Carrigan responded that he had not committed a violent crime. He reiterated that his former attorney had pressured him into pleading. He also alleged that counsel's law partner was a relative of one of Carrigan's victims and that she had told him that it would be simple to have his guilty plea withdrawn if he changed his mind prior to sentencing. Carrigan also told the court that counsel based her advice on Carrigan's charges in other counties; however, Carrigan had not actually been indicted in those counties. He also claimed that his former counsel had not fully informed him of the implications of a violent offense conviction.

The court proceeded to sentence Carrigan to ten-years' incarceration. When Carrigan asked how an appeal could be initiated, the court advised Carrigan to write the court and to request an appointed attorney. This appeal—by appointed counsel—follows.

Carrigan first contends that the trial court erred by sentencing Carrigan when he was not represented by counsel. We agree.

It is fundamental that under the Sixth Amendment of the United States Constitution, “a criminal defendant has a right to be represented by counsel that extends beyond the actual trial to every critical stage of the proceedings.” Stone v. Commonwealth, 217 S.W.3d 233, 237 (Ky.2007). (Citations omitted.) (Emphasis added.) Critical stages are events that place the accused in an adversarial situation. Cain v. Abramson, 220 S.W.3d 276, 280 (Ky.2007). The right to representation has been deemed the most basic right of an accused person. U.S. v. Cronic, 466 U.S. 648, 654, 104 S.Ct. 2039, 2044, 80 L.Ed.2d 657 (1984). (Quoting Schaefer, Federalism and State Criminal Procedure, 70 Harv. L.Rev. 1, 8 (1956)). If a defendant has been completely denied counsel, prejudice is presumed, tainting the proceedings and requiring reversal. Cronic, 466 U.S. at 659, 104 S.Ct. at 2047.See also Stone, supra.

Although authority in Kentucky is sparse on this issue, the Supreme Court of the United States has determined that “sentencing is a critical stage of the criminal proceeding at which he is entitled to the effective assistance of counsel.” Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1205, 51 L.Ed.2d 393 (1977). (Internal citations omitted.) Carrigan was not represented by counsel at sentencing, a fact which we conclude rendered the proceeding unfair. Accordingly, we must vacate and remand.

While Carrigan's first argument is dispositive, we believe that it is also important to address his other contention—that the trial court erred by not holding an evidentiary hearing on his request to withdraw his guilty plea. After acknowledging Carrigan's letter that expressed his desire to withdraw his plea of guilty, the trial court announced that it wanted “a formal motion.” At the time, Carrigan was represented by counsel, and his counsel agreed to write and submit a motion. However, his counsel changed her mind and—in open court—refused to file the motion. Carrigan was unable to afford private counsel; thus, a formal motion was never before the court. We are aware that a defendant's letter to the court is not a pleading that is properly before the court and, therefore, arguably is not ripe for our review. Dillingham v. Commonwealth, 995 S.W.2d 377, 381 (Ky.1999). “Nonetheless, we feel it is appropriate to reach the merits of the issue based on the particular facts of this case.” Id.¹

Kentucky Rule[s] of Criminal Procedure (RCr) 8.10 provides that “any time before judgment the court may permit the plea of guilty ... to be withdrawn and a plea of not guilty substituted.” Whether the motion should be granted is left to the discretion of the trial court. Rodriguez v. Commonwealth, 87 S.W.3d 8, 10 (Ky.2002). However, if the motion recites that a guilty plea was involuntary, the defendant is entitled to a hearing on the motion. Edmonds v. Commonwealth, 189 S.W.3d 558, 566 (Ky.2006).

Both in his letter and orally at sentencing, Carrigan claimed that he was pressured into entering his guilty plea. He also alleged ineffectiveness of counsel due to a conflict of interest. Carrigan stated that his counsel's partner was a relative of one of the alleged victims. We also note that beginning with his first court appearance, Carrigan had expressed questions about the charge of first-degree robbery that would result in his classification as a violent offender, the very concern that Carrigan expressed in his letter to the court and verbally at his sentencing. He also alleged that his counsel pressured him to plead guilty because of the alleged charges from other counties, which apparently have never materialized. The court's response to Carrigan's allegations was that if a hearing had been...