Porter v. Commonwealth

• Decision Date: 22 December 2011
• Docket Number: No. 2010–SC–000189–MR.,2010–SC–000189–MR.
• Parties: Larrell Jarvor PORTER, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

394 S.W.3d 382

Larrell Jarvor PORTER, Appellant

v.COMMONWEALTH of Kentucky, Appellee.

No. 2010–SC–000189–MR.

Supreme Court of Kentucky.

Dec. 22, 2011.

Samuel Todd Spalding, Lebanon, KY, Counsel for Appellant.

Jack Conway, Attorney General of Kentucky, John Paul Varo, Assistant Attorney General, Office of Criminal Appeals, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice ABRAMSON.

Larrell Porter pled guilty to three counts of trafficking in a controlled substance in the first degree, second or subsequent offense; being a persistent felony offender in the second degree; and two counts of possession of drug paraphernalia. This plea, which resulted in a twenty-year prison sentence, was pursuant to the second plea deal offered by the Commonwealth, the first of which Porter rejected when he refused to comply with a condition attached to the plea deal, namely that he waive his right to view video recordings of the drug buys. The Commonwealth imposed the condition on its initial plea offer to protect the identity of the confidential informant and several active investigations. The trial court denied Porter's subsequent motion to withdraw his guilty plea, a ruling Porter challenges on appeal. Porter also argues the condition in the initial plea offer violated his right to discovery and his “substantial rights” and, further, that the Commonwealth acted improperly when it conditioned the first plea deal on waiver of his right to view the video. For the following reasons, we affirm.

RELEVANT FACTS

In November and December of 2006, police officers in Marion County, Kentucky used a confidential informant (informant) to make three controlled drug buys from Porter. Based on these transactions, Porter was indicted on three counts of trafficking in a controlled substance in the first degree, second or subsequent offense, a class B felony; two counts of possession of drug paraphernalia, a class A misdemeanor; and as a persistent felony offender in the second degree (PFO 2). The trial court's Order of Arraignment and Discovery (discovery order) required the Commonwealth to comply with several rules of discovery, including Kentucky Rule of Criminal Procedure (RCr) 7.24(2), which permits the defendant to inspect and copy “tangible objects” in the Commonwealth's possession or control. The discovery order also specified discovery must be completed seven days prior to the pretrial, which was set for October 20, 2008. On September 15, 2008, the Commonwealth filed a response to the discovery order, indicating the Commonwealth possessed an incriminating “Audio and Video CD of the drug transaction(s),” listing “Confidential informant, identity not to be revealed at this time” as a known eyewitness and averring the Commonwealth did not possess any exculpatory evidence.

At or around this time, the Commonwealth offered Porter a twelve-year sentence ¹ for all of the crimes charged, providedPorter agreed not to view the video of the drug buys.² As part of this offer, defense counsel was permitted to view the video and disclose to Porter the entirety of its contents, except the identity of the informant. The Commonwealth explained the “counsel-only” condition was in place to protect the informant, to maintain the informant's usefulness as a law enforcement asset, and to preserve ongoing investigations in which the informant was involved. This initial offer of twelve years was withdrawn when Porter insisted on personally viewing the video. The Commonwealth sent the video to him on May 18, 2009. The Commonwealth then extended an offer of twenty years for each trafficking charge and twelve months for each drug paraphernalia charge, all to run concurrently for a total prison sentence of twenty years for all charges. Porter eventually accepted this offer and pled guilty on October 12, 2009.

On January 4, 2010, Porter moved to withdraw his guilty plea, claiming the condition attached to the first plea offer rendered his later plea unknowing and involuntary. Porter further alleged violation of both his right to discovery and his “substantial rights,” as well as prosecutorial misconduct. After a hearing on the matter, the trial court denied Porter's motion, finding it was within the Commonwealth's discretion to offer a plea deal conditioned on the defendant waiving his right to view a video, in order to protect the identity of a confidential informant. Porter was sentenced to twenty years in prison in accord with his plea agreement and now appeals as a matter of right. Ky. Const. § 110(2)(b).

On appeal, Porter argues: (1) the condition imposed by the Commonwealth in its first plea offer rendered his later plea unknowing and involuntary and, thus, the trial court erred when it denied his motion to withdraw his plea; (2) the Commonwealth violated discovery rules when it limited his right to view the video as part of the initial plea deal; (3) the condition violated his “substantial rights”; and (4) the prosecutor's actions were improper. Finding no error, we affirm.

ANALYSIS

I. The Trial Court Properly Denied Porter's Motion to Withdraw His Voluntary and Knowing Guilty Plea.

A trial court may accept a guilty plea upon a determination, made on, the record, that the plea is voluntarily and intelligently made, “with sufficient awareness of the relevant circumstances and likely consequences.” United States v. Ruiz, 536 U.S. 622, 623, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002) (quoting Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)); Edmonds v. Commonwealth, 189 S.W.3d 558 (Ky.2006); RCr 8.08. In determining whether a guilty plea is voluntary, intelligent and sufficiently aware (hereinafter referred to as “voluntary”), the trial court considers the totality of the circumstances surrounding the guilty plea, an inherently fact-specific inquiry. Bronk v. Commonwealth, 58 S.W.3d 482 (Ky.2001). Similarly, when a defendant moves to withdraw his guilty plea, the court must hold a hearing to determine whether the plea was entered voluntarily. Rodriguez v. Commonwealth, 87 S.W.3d 8 (Ky.2002). If the trial court finds the plea was involuntary, it must grant the motion to withdraw. Id. If, however, the trial court determines the plea was voluntary, it may deny the motion to withdraw and enforce the plea. Id. The trial court is in the best position to determine if there was any “reluctance, misunderstanding, involuntariness, or incompetence to plead guilty,” Bronk, 58 S.W.3d at 487, and “solemn declarations in open court carry a strong presumption of verity,” Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). We review a trial court's finding regarding voluntariness for clear error, i.e., whether the determination was supported by substantial evidence, and we review a trial court's ruling on a motion to withdraw for abuse of discretion, i.e., whether it was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Edmonds, 189 S.W.3d at 570.

The trial court in this case properly determined Porter's plea was voluntary and denied his motion to withdraw his plea. As to the first portion of the standard of review, we find the trial court did not err in determining Porter's plea was voluntary. At the initial plea hearing, the trial court ascertained Porter understood the charges and the plea offer, was not under the influence of any drugs or alcohol, and had not been coerced into pleading guilty. The trial court also explained to Porter that a guilty plea in this case could cause him to be charged as a persistent felony offender in the first degree and thus be subject to higher penalties in any future criminal cases. Porter indicated he discussed the offer with his attorney and understood the implications of his guilty plea, including the rights he was waiving by pleading guilty. Porter's counsel confirmed he discussed the guilty plea with Porter and stated he believed Porter entered the plea voluntarily. Porter himself affirmed he was freely and voluntarily pleading guilty. This substantial evidence supports the trial court's finding that the plea was voluntary.

As to the second portion of the standard of review, we find the trial court's decision to deny Porter's motion was reasonable, fair, and supported by sound legal principles. The trial court ³ properly held a hearing on the motion to withdraw, during which it considered counsel's arguments, the motion, the response filed by the Commonwealth and the record in the case, paying particular attention to the plea documents and the initial plea hearing. Considering the totality of the circumstances and finding Porter's plea was voluntary, the court denied Porter's motion to withdraw. There was no abuse of discretion.

Moreover, we fail to see how the Commonwealth's condition in the first plea offer—that Porter not view the video in order to protect the informant's identity—could render Porter's later plea unknowing or involuntary, given that Porter did receive the video five months prior to pleading guilty. Porter claims, “The defendant was forced to guess what evidence the Commonwealth had against him ... Certainly the Defendant's plea could not be considered “knowing” when he never knew what evidence the Commonwealth possessed.” Appellant's Brief 4, 5. However, Porter was aware of the evidence against him because he received discovery more than a year before he pled guilty and, specifically, he received the contentious video nearly five months before he pled guilty. Contrary to his claims, when Porter pled guilty on October 12, 2009, he was well aware of the contents of the video and the evidence possessed by the Commonwealth.

II. Porter's Discovery Rights Were Not Violated.

There is no general constitutional right to discovery in a criminal case. Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977).⁴ “Of course, the more information the defendant has, the more aware he is...