Sparks v. Com.

• Decision Date: 21 November 1986
• Docket Number: No. 86-CA-295-MR,86-CA-295-MR
• Citation: 721 S.W.2d 726
• Parties: Roy Kenneth SPARKS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

Page 726

721 S.W.2d 726

Roy Kenneth SPARKS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 86-CA-295-MR

Court of Appeals of Kentucky.

Nov. 21, 1986 Discretionary Review Denied by Supreme Court Jan. 13, 1987.

Roy Kenneth Sparks, pro se.

David L. Armstrong, Atty. Gen., Joseph R. Johnson, Asst. Atty. Gen., Frankfort, for appellee.

Before HAYES, C.J., HOWERTON and REYNOLDS, JJ.

HOWERTON, Judge.

Roy Kenneth Sparks appeals from a judgment of the Carter Circuit Court which denied his motion to vacate sentence pursuant to RCr 11.42. We affirm.

Sparks was originally arrested and indicted for murder and first-degree robbery. The appellant initially rejected a plea bargain offer from the Commonwealth, and his case went to trial in March 1984. Three days into the trial, however, Sparks, on the advice of counsel, agreed to plead guilty to murder. In return, the Commonwealth agreed to drop the robbery charge and to recommend a sentence of 35 years in prison. This plea was accepted by the trial court, and Sparks was duly sentenced to 35 years.

In his RCr 11.42 motion, pro se, Sparks alleged (1) that a tape recorded conversation in which he made incriminating statements was illegally obtained; (2) that there was insufficient evidence to support a guilty verdict; (3) that the warrant for his arrest was defective; (4) that his guilty plea was invalid as being involuntary and not intelligently made; and (5) that he received ineffective assistance of counsel. The appellant also moved for an evidentiary hearing. The trial court denied the motion for a hearing and also the motion to vacate sentence, and Sparks brought this appeal.

We note first that a plea of guilty constitutes a waiver of all defenses other than that the indictment charged no offense. Sanders v. Commonwealth, Ky.App., 663 S.W.2d 216, 218 (1983). The trial court therefore properly limited its consideration below to the appellant's allegations that his guilty plea was invalid and that he received ineffective assistance of counsel. Where, as here, the trial court denies a motion for an evidentiary hearing on the merits of allegations raised in a motion pursuant to RCr 11.42, our review is limited to whether the motion "on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction." Lewis v. Commonwealth, Ky., 411 S.W.2d 321, 322 (1967). Where the movant's allegations are refuted on the face of the record as a whole, no evidentiary hearing is required. Hopewell v. Commonwealth, Ky.App., 687 S.W.2d 153, 154 (1985).

On appeal, Sparks reiterates his allegations that his guilty plea was invalid and that he received ineffective assistance of counsel, and he further contends that the trial court abused its discretion in denying the motion for an evidentiary hearing. We disagree.

The test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970). There must be an affirmative showing in the record that the plea was intelligently and voluntarily made. Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969). However, "the validity of a guilty plea is determined not by reference to some magic incantation recited at the time it is taken but from the totality of the circumstances surrounding it." Kotas v. Commonwealth, Ky., 565 S.W.2d 445, 447 (1978), (citing Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970)).

The record in the case before us indicates that Sparks elected to plead guilty after three days of a jury trial, during which the Commonwealth...