Marrero-Charleman v. Commonwealth

• Decision Date: 24 June 2022
• Docket Number: 2020-CA-0608-MR,2020-CA-0763-MR,2020-CA-0765-MR
• Parties: VICTOR MARRERO-CHARLEMAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE AND VICTOR MARRERO-CHARLEMAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE AND VICTOR MARRERO-CHARLEMAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
• Court: Kentucky Court of Appeals

VICTOR MARRERO-CHARLEMAN APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

AND

VICTOR MARRERO-CHARLEMAN APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

AND

VICTOR MARRERO-CHARLEMAN APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

Nos. 2020-CA-0608-MR, 2020-CA-0763-MR, 2020-CA-0765-MR

Court of Appeals of Kentucky

June 24, 2022

NOT TO BE PUBLISHED

APPEAL FROM KENTON CIRCUIT COURT HONORABLE PATRICIA M. SUMME, JUDGE, HONORABLE GREGORY M. BARTLETT, JUDGE, ACTION NOS. 18-CR-01172, 18-CR-00749, 16-CR-01147

BRIEFS FOR APPELLANT: Steven J. Buck Frankfort, Kentucky

BRIEF FOR APPELLEE: Daniel Cameron Attorney General of Kentucky Stephanie L. McKeehan Assistant Attorney General Frankfort, Kentucky

BEFORE: LAMBERT, MCNEILL, AND TAYLOR, JUDGES.

OPINION

MCNEILL, JUDGE

Victor Marrero-Charleman^[1] appeals from the denial of his motion to withdraw his guilty plea in three circuit court cases. After examining the record and applicable law, we affirm.

Relevant Factual and Procedural History

In December 2016, Marrero was indicted for tampering with physical evidence. Kenton Circuit Court Case No. 16-CR-01147. That case was assigned to Judge Gregory Bartlett. In December 2017, Marrero and the Commonwealth

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entered into a plea agreement, pursuant to which he was to receive pretrial diversion. The court accepted the guilty plea and released Marrero on his own recognizance pending sentencing.^[2] But when Marrero failed to appear for sentencing he was indicted for first-degree bail jumping. Kenton Circuit Court Case No. 18-CR-00749. That case also was assigned to Judge Bartlett.

While those charges were pending, in September 2018, Marrero was indicted for two counts of robbery in the first degree and one count of tampering with physical evidence. Kenton Circuit Court Case No. 18-CR-01172. That case was assigned to Judge Patricia Summe.

Thus, though Marrero had the same attorney in all three cases, the charges proceeded along separate tracks in separate courtrooms until July 2019, when he entered into a package, comprehensive plea agreement with the Commonwealth. The agreement recommended that Marrero receive a total sentence of eighteen years (ten total years for the charges before Judge Summe, consecutive to eight total years for the charges before Judge Bartlett). Judge Bartlett and Judge Summe held separate guilty plea hearings, after which each accepted Marrero's guilty plea.

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However, before he was sentenced by either judge, Marrero indicated he wished to withdraw his guilty pleas. In November 2019, via conflict counsel, Marrero filed a written motion to withdraw his guilty plea in all three cases. The gist of his motion was an assertion that his plea was involuntary because his appointed counsel, Ashley Graham, had not communicated adequately, provided adequate discovery, or filed motions Marrero wished her to file.

In January 2020, Judge Summe held a thorough, roughly three-hourlong hearing on Marrero's motion to withdraw his guilty plea at which facts and circumstances pertaining to the charges pending before both Judge Summe and Judge Bartlett were discussed. Marrero testified that Graham had not provided him with sufficient paper discovery. Instead, she provided him with DVDs which supposedly contained discovery, but he could not get most of them to play on the jail's equipment. He also testified that Graham had not met often with him and had not filed motions he requested, such as a motion to suppress.

Graham also testified. She admitted she had not given Marrero all of the "paper" discovery, such as thousands of pages from Facebook. But she testified that she had provided him DVDs containing discovery to view at the jail and she believed those discs were functional. She also testified that Marrero had refused to meet with her at least once when she went to the jail to go over the

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discovery with him. According to Graham, she did not file the motions Marrero requested because she did not believe there were proper grounds to do so.

A little over two months later, Judge Summe issued a meticulous order denying Marrero's motion to withdraw his guilty plea as to the charges pending in her courtroom. The gist of Judge Summe's order was that Graham was more credible than Marrero, that Marrero had not shown his plea was involuntary, and that the court did not believe it appropriate to let him withdraw his voluntary plea. Soon thereafter, Judge Summe sentenced Marrero, via video, in accordance with the sentence called for in the plea agreement. Marrero appealed. Case No. 2020-CA-0608-MR (for Kenton Circuit Court Case No. 18-CR-01172).

Meanwhile, the motion to withdraw the guilty plea in the cases pending before Judge Bartlett proceeded differently. Judge Bartlett held a very brief, non-evidentiary hearing on Marrero's motion to withdraw his guilty plea on March 9, 2020 - after Judge Summe had held her evidentiary hearing but before her written decision was issued. However, when Judge Bartlett held his hearing everyone was aware that Judge Summe was likely to deny Marrero's motion to withdraw because she had indicated as much at a status hearing in February 2020.

At the hearing, Marrero's counsel reminded Judge Bartlett that she and the Commonwealth had asked him via email to view Judge Summe's hearing

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instead of conducting his own,^[3] and Judge Bartlett indicated he had granted their request and had watched Judge Summe's hearing. Judge Bartlett orally denied Marrero's motion to withdraw his plea, stating "based upon that [his viewing of Judge Summe's hearing] and my own record in these cases, the motion to withdraw plea will be denied in each case." Video Record, 3/9/20 at 3:26:34 et seq.

Marrero's counsel soon thereafter asked Judge Bartlett if he intended to issue a written order, and Judge Bartlett responded, "Well, if you need one, yes." Id. at 3:26:54 et seq. Counsel then vaguely said, "I'm going to presume the answer to that question is yes, unless you were joining Judge Summe's findings, which I know you haven't seen yet because she's not finished with hers yet." Id. at 3:26:59 et seq. Judge Bartlett eventually responded, "If you want some brief written order, it'll be entered." Id. at 3:27:11 et seq. Marrero's counsel requested nothing else.

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Despite his statement, Judge Bartlett did not issue a written order denying Marrero's motion to withdraw his guilty plea before sentencing Marrero, via video, in accordance with the plea agreement in May 2020. Marrero appealed. Case Nos. 2020-CA-0763-MR (for Kenton Circuit Court Case No. 18-CR-00749) and 2020-CA-0765-MR (for Kenton Circuit Court Case No. 16-CR-01147). We ordered the three appeals to be consolidated and resolve them all in this combined Opinion.

Analysis

Marrero's main argument is that both judges erred in denying his motion to withdraw his guilty plea. He also raises a fatally underdeveloped argument that Judge Bartlett failed to make adequate findings. Finally, Marrero argues that both judges erred in sentencing him via video conference. For judicial convenience, we will address Marrero's arguments in a different order than he presents them to us.^[4]

No Error in Sentencing Via Video

We begin with Marrero's argument that it was improper to sentence him via videoconference. We disagree.

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When Marrero was sentenced, the COVID-19 pandemic had begun. No vaccines were available. Thus, our Supreme Court issued various administrative orders to help courts remain open as necessary while trying to best ensure the safety of court personnel, attorneys, and litigants. For example, Section 1 of Order 2020-13 cancelled all dockets, with some limited exceptions, from March 16, 2020 through April 24, 2020. https://kycourts.gov/Courts/Supreme-Court/Supreme%20Court%20Orders/202013.pdf (last visited Apr. 26, 2022). Similarly, Order 2020-16 cancelled most dockets and closed judicial facilities to in-person services during April 2020. https://kycourts.gov/Courts/Supreme-Court/Supreme%20Court%20Orders/202016.pdf (last visited Apr. 26, 2022). As had Order 2020-13, Order 2020-16 also stated in Section 1 that "Judges must use available telephonic and video technology to conduct all hearings, unless the parties are unable to participate remotely." Id. Those were the dire circumstances present when Marrero was sentenced via video.

Of course, in a perfect world, sentencings should be done face-to-face. But the world was decidedly imperfect when Marrero was sentenced. Under the circumstances here, neither Judge Bartlett nor Judge Summe erred by following Kentucky's highest court's mandate for trial courts to conduct proceedings remotely to the greatest extent possible.

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Moreover, Marrero points to absolutely no concrete prejudice he suffered from being sentenced via video. For example, there were no technical difficulties which prevented any participant from hearing or seeing any other participant. Thus, these cases are materially distinguishable from K.D.H. v. Cabinet for Health and Family Services, 630 S.W.3d 729, 740-41 (Ky. App. 2021), in which we held that, despite the pandemic, it was improper to continue to conduct a hearing via video when technical difficulties led to the court being unable to hear testimony.

Nonetheless, Marrero broadly contends he "had both a procedural and constitutional right to be personally present at all critical stages of his case." Appellant's brief, p. 16. For his procedural argument, Marrero cites Kentucky Rule of Criminal Procedure (RCr) 8.28(1), which provides in relevant part that "[t]he defendant shall be present at the arraignment, at every critical stage of the trial including . . . the imposition of the sentence." For his constitutional argument, Marrero cites Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934), overruled in part on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S.Ct....