Rigdon v. Com.

Decision Date13 August 2004
Docket NumberNo. 2003-CA-000872-MR.,2003-CA-000872-MR.
Citation144 S.W.3d 283
PartiesLarry Michael RIGDON II, Appellant v. COMMONWEALTH of Kentucky, Appellee.
CourtKentucky Court of Appeals

Appeal from the Circuit Court, Henderson County, Stephen A. Hayden, J Larry Michael Rigdon II, Eddyville, KY, pro se.

Albert B. Chandler III, Attorney General of Kentucky, Courtney J. Hightower, Assistant Attorney General, Frankfort, KY, for appellee.

Before GUIDUGLI, McANULTY, and MINTON, Judges.

MINTON, Judge.

Larry Michael Rigdon II (Rigdon), pro se, appeals as a matter of right from the judgment of the Henderson Circuit Court sentencing him to a total of three years' imprisonment following his guilty plea to one count of receiving stolen property over $3001 and one count of theft of services under $300.2 Rigdon asserts that the circuit court abused its discretion in denying his motion to withdraw his guilty plea based on his allegation that it was involuntary because it was the product of ineffective assistance of counsel. Having considered the record, the parties' briefs, and the applicable case law, we affirm the judgment of the Henderson Circuit Court.

On June 20, 2002, Rigdon was indicted on the previously-mentioned charges. The indictment also alleged that he was a second-degree persistent felony offender (PFO).3 Rigdon initially entered a not guilty plea. On his scheduled trial date, November 27, 2002, Rigdon filed a motion to enter a guilty plea pursuant to a plea agreement. The Commonwealth agreed to dismiss the charge of being a second-degree PFO in exchange for Rigdon's entering a guilty plea to the two remaining charges. The Commonwealth also agreed to recommend sentences of three years for the receiving stolen property charge and twelve months for the theft of services charge, with the sentences to run concurrently with each other but consecutively with any other sentences which Rigdon had previously been ordered to serve.4 The circuit court then conducted a hearing, pursuant to Boykin v. Alabama,5 to determine whether Rigdon's guilty plea was entered voluntarily. Based upon this hearing, the circuit court made a written finding in its November 27, 2002, order of adjudication of guilt that "the defendant's guilty plea was knowingly, understandable [sic], competently and voluntarily made." Final sentencing was set for January 13, 2003.

On January 6, 2003, Rigdon filed a pro se motion to withdraw his guilty plea on the ground that it was involuntary because it was the result of ineffective assistance of counsel. Rigdon pointed to a lack of communication with his appointed attorney, Greg Sutton of the Department of Public Advocacy (DPA). Rigdon stated that he had only spoken to Sutton twice, once at arraignment and once two days before his trial date. He alleged that Sutton told him upon presenting the plea offer that he "[could not] do anything for"6 Rigdon at trial and that Rigdon "[had] no alternative but to plead guilty to the charges."7 He also stated that Sutton refused to properly investigate potential witnesses even though Rigdon had informed Sutton that these witnesses had "vital testimonial evidence in relevance [sic] of a[sic] exculpatory nature."8 Finally, he alleged that Sutton did not inform him of the options of filing a motion in limine to exclude certain evidence or of entering a conditional guilty plea.

No separate evidentiary hearing was conducted. However, at the January 13, 2003, sentencing hearing, Rigdon was given the opportunity before sentencing to explain to the circuit court why he should be permitted to withdraw his plea and how he had suffered from ineffective assistance of counsel. Rigdon was not sworn in or subjected to cross-examination. Rigdon stated that he never spoke with Sutton after his arraignment until November 25, 2002, two days before his scheduled trial date, when Rigdon was transported from KSP at Eddyville to the Henderson County Jail. Sutton's office also refused to accept Rigdon's collect phone calls. When Sutton came to him with the plea offer two days before trial, Rigdon said that he felt that he "had no other alternative but to take a guilty plea" because he did not think that Sutton could have sufficiently prepared for trial in two days. He also stated that Sutton never explained to him the options of filing a motion in limine or entering a conditional guilty plea. Rigdon did not identify what evidence he believed could have been excluded by a motion in limine or the basis for its exclusion. Similarly, he never identified the basis for a conditional guilty plea. He did not address his earlier allegations that counsel failed to investigate witnesses identified as having exculpatory evidence.

Sutton also spoke at the sentencing hearing. Like Rigdon, he was not sworn in or subjected to cross-examination. He conceded that he did not speak to Rigdon in between Rigdon's arraignment and the day when he approached Rigdon with the plea offer, two days before Rigdon's scheduled trial date. Sutton said that he was unable to travel to Eddyville where Rigdon was incarcerated at KSP because of his workload. He also admitted that his office's policy, consistent with cost-saving measures advocated by DPA, was to refuse to accept collect phone calls except in extraordinary circumstances. However, Sutton asserted that he would have been sufficiently prepared for trial if Rigdon had wanted to proceed with a trial. He noted that he had obtained all necessary discovery, and a DPA investigator had investigated the case. He stated that this investigator could have located the appropriate witnesses for trial if necessary. Sutton observed, "I've prepared for trial in a lot less time than two days." He concluded, "If we'd needed to go to trial we would have." Sutton did not address any of Rigdon's other claims.

In its order, entered January 27, 2003, the circuit court summarily denied Rigdon's motion to withdraw his guilty plea in a one-sentence order. Notably, the circuit court made no finding with respect to whether Rigdon's guilty plea was entered voluntarily under the totality of the circumstances. On January 28, 2003, the circuit court entered a judgment of conviction and sentence, sentencing Rigdon according to the Commonwealth's recommendation noted above. Rigdon then filed a timely pro se motion for reconsideration. In its April 15, 2003, order denying Rigdon's motion for reconsideration, the circuit court recounted the testimony of Rigdon and his attorney, Sutton, at the sentencing hearing regarding the brevity of attorney-client communication. The circuit court also described Rigdon's statements made in the plea colloquy as follows:

Under the court's questioning during the guilty plea colloquy, Rigdon testified that he had all the time he wished to consult with his attorney. Rigdon also stated that he was fully satisfied with what his attorney had done for him, and that he had no complaints about his attorney's performance. Rigdon stated that he understood he had the right to go to trial if he so chose and that Sutton had made it clear that if he did wish to go to trial, Sutton would represent him at trial to the best of his ability. Rigdon also specifically assured the court that his guilty plea was "made freely and voluntarily and because [he was] in fact guilty of the charges contained in the indictment."

This testimony, as a whole, indicates that the guilty plea was made intelligently and voluntarily.9

Based on the foregoing, the circuit court denied Rigdon's motion to reconsider its order denying his motion to withdraw his guilty plea.

When a criminal defendant pleads guilty, Rule 8.10 of the Kentucky Rules of Criminal Procedure (RCr) requires the trial court receiving the guilty plea to determine on the record whether the defendant is voluntarily pleading guilty.10 Whether a guilty plea is voluntarily given is to be determined from the totality of the circumstances surrounding it.11 The trial court is in the best position to determine the totality of the circumstances surrounding a guilty plea.12 Once a criminal defendant has pleaded guilty, he may move the trial court to withdraw the guilty plea, pursuant to RCr 8.10. If the plea was involuntary, the motion to withdraw it must be granted.13 However, if it was voluntary, the trial court may, within its discretion, either grant or deny the motion.14 Whether to deny a motion to withdraw a guilty plea based on a claim of ineffective assistance of counsel first requires "a factual inquiry into the circumstances surrounding the plea, primarily to ascertain whether it was voluntarily entered."15 The trial court's determination on whether the plea was voluntarily entered is reviewed under the clearly erroneous standard.16 A decision which is supported by substantial evidence is not clearly erroneous.17 If, however, the trial court determines that the guilty plea was entered voluntarily, then it may grant or deny the motion to withdraw the plea at its discretion. This decision is reviewed under the abuse of discretion standard.18 A trial court abuses its discretion when it renders a decision which is arbitrary, unreasonable, unfair, or unsupported by legal principles.19

A criminal defendant may demonstrate that his guilty plea was involuntary by showing that it was the result of ineffective assistance of counsel. In such an instance, the trial court is to "consider the totality of the circumstances surrounding the guilty plea and juxtapose the presumption of voluntariness inherent in a proper plea colloquy with a Strickland v. Washington20 inquiry into the performance of counsel."21 To support a defendant's assertion that he was unable to intelligently weigh his legal alternatives in deciding to plead guilty because of ineffective assistance of counsel, he must demonstrate the following:

(1) that counsel made errors so serious that counsel's performance fell outside the wide range of professionally competent assistance; and (2) that...

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