Turner v. Commonwealth, 1997-CA-003213-MR

• Decision Date: 25 June 1999
• Docket Number: 1997-CA-003213-MR
• Citation: 10 S.W.3d 136
• Parties: JOE THOMAS TURNER, JR., APPELLANT v. COMMONWEALTH OF KENTUCKY, APPELLEE
• Court: Kentucky Court of Appeals

[1]	10 S.W.3d 136
[2]	JOE THOMAS TURNER, JR., APPELLANT; v.; COMMONWEALTH OF KENTUCKY, APPELLEE
[3]	NO. 1997-CA-003213-MR
[4]	Kentucky Court of Appeals
[5]	APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE STEPHEN P. RYAN, JUDGE ACTION NO. 96-CR-01384
[6]	June 25, 1999
[7]	Before: Huddleston, Johnson And Knopf, Judges.
[8]	Briefs For Appellant: Hon. Bruce P. Hackett Hon. Daniel T. Goyette Louisville, KY Oral Argument For Appellant: Hon. Bruce P. Hackett Louisville, KY Brief For Appellee: Hon. A. B. Chandler III Attorney General Hon. Amy F. Howard Assistant Attorney General Frankfort, KY Oral Argument For Appellee: Hon. Anitria Franklin Assistant Attorney General Frankfort, KY
[9]	The opinion of the court was delivered by: Johnson, Judge
[10]	RENDERED: June 25, 1999; 2:00 p.m. TO BE PUBLISHED
[11]	Commonwealth Of Kentucky Court Of Appeals
[12]	OPINION
[13]	REVERSING AND REMANDING
[14]	** ** ** ** **
[15]	Joe Thomas Turner (Turner) appeals from the judgment of the Jefferson Circuit Court entered on December 4, 1997, pursuant to a plea of guilty. Turner was convicted of rape in the first degree (Kentucky Revised Statutes (KRS) 510.040), assault in the second degree (KRS 508.020), burglary in the first degree (KRS 511.020), unlawful imprisonment in the second degree (KRS 509.030), escape in the second degree (KRS 520.030), and theft by unlawful taking over $300 (KRS 514.030). Turner claims the trial court erred in reinstating his guilty plea after having allowed him to withdraw it. We reverse and remand.
[16]	Turner was alleged to have committed the offenses of rape, assault, burglary, and unlawful imprisonment on March 9, 1996, against C.R., with whom Turner had had a sexual relationship for a period of years. Turner had apparently found C.R. actively engaged in a sex act with Carl Payne (Payne) before committing these offenses against C.R. Turner was indicted for these offenses and for the additional offenses of escape and theft that were alleged to have occurred on January 14, 1996.*fn1
[17]	At a pretrial hearing, the trial court ruled that evidence of Turner's prior bad acts against C.R. would be admissible at trial. These prior bad acts included two prior convictions for assault in the fourth degree and two other alleged assaults in January and February 1996. Subsequent to this ruling, on August 26, 1996, Turner accepted the Commonwealth's offer on a plea of guilty, but, pursuant to Kentucky Rules of Criminal Procedure (RCr) 8.09, reserved his right to appeal from this evidentiary ruling. Turner also continued to maintain his innocence by entering his guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
[18]	On August 29, 1997, Turner filed a complaint with the Kentucky Bar Association (KBA) claiming that his attorney (1) had not "come to see" him in seventeen months; (2) had failed to attempt to get a charge amended in light of the fact that he had already served time; and (3) had told him at one time that she could win his case only later to recommend he accept the plea offer because she did not think she could win. On September 29, 1997, Turner filed in the trial court a pro se motion to withdraw his guilty plea. And, on October 9, 1997, Turner, through counsel, filed an additional motion pursuant to RCr 8.10 to withdraw his guilty plea. Both of these motions relied upon grounds similar to the KBA complaint Turner had filed.
[19]	On November 4, 1997, the trial court entered an order that allowed the guilty plea to be withdrawn and a plea of not guilty substituted therefor. On November 14, 1997, the Commonwealth filed a motion for the trial court to reconsider its order that had permitted Turner to withdraw his guilty plea. The Commonwealth claimed that it would be prejudiced by the withdrawal of the guilty plea because of the difficulties it would encounter in securing the attendance of its witnesses for trial. In particular, the Commonwealth noted that it had learned that one of its witnesses, Avery Bartee (Bartee), had died. It is not clear from the record when Bartee died, but the Commonwealth has not alleged that Turner had knowledge of her death when he moved to withdraw his guilty plea. The Commonwealth claimed that while Bartee was not an eyewitness, she was a material witness in that her testimony would have corroborated the testimony of both Payne and C.R. Payne is deaf, does not work and does not have a permanent address. The Commonwealth argued that Payne was an eyewitness to a portion of the events surrounding the charges, and that Bartee was also needed to locate Payne. The Commonwealth claimed that Payne does not understand sign language and can barely lip read and that in the past Bartee had been able to help Payne communicate and therefore her death would hinder Payne's ability to

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