Woods v. Com.
| Decision Date | 28 June 1990 |
| Docket Number | No. 89-SC-194-MR,89-SC-194-MR |
| Citation | 793 S.W.2d 809 |
| Parties | Melvin WOODS, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
J. Kirk Griggs, II, Lexington, for appellant.
Frederic J. Cowan, Atty. Gen., Ian G. Sonego, Asst. Atty. Gen., Criminal Appellate Div., Frankfort, for appellee.
Melvin Woods was charged and convicted in McCracken Circuit Court of two separate narcotics offenses: (1) "Trafficking in Schedule II Narcotic Controlled Substance [Cocaine], Second or Subsequent Offense," for which he was sentenced to twenty years; and (2) "Trafficking in Marijuana, Under 8 Ounces, Second or Subsequent Offense," for which he was sentenced to five years. The sentences were run consecutively for a total of twenty-five years. He appeals to this Court as a matter of right.
As part of an ongoing investigation into drug dealing in the area of Seventh and Adams in Paducah, Kentucky, Officer Donnie Hill, an undercover agent who had been previously "wired" to tape-record his activities, made two "buys" from Melvin Woods at a bar in that vicinity. The first transaction was a $10 bag of marijuana, and the second, a separate transaction sometime later on the same day, was $25 worth of cocaine.
Trial testimony included that of the undercover agent named Hill who made the buys, of his "backup" who was in a car outside attempting to record the transmissions from Hill's concealed microphone, and of an expert witness from the Kentucky State Police Laboratory who tested the buys and found the first to be 1.5 grams of marijuana and the second to be 6/100's of a gram of a white powder which she "believed" to be cocaine.
The principal questions on appeal are generated by the evidence regarding the appellant's prior drug offense, which served as the basis of his conviction as a subsequent offender. This was a conviction three years earlier in McCracken District Court for possession of marijuana. The arrest record, a "Citation," specifies as the "details" of the "violation":
At trial on the present offenses the District Court Clerk testified the case file showed the notation "pled guilty through attorney," and that this notation, "through attorney" meant that the defendant was "probably not" in the courtroom. Before trial the appellant had filed a Motion to Suppress, supported by his Affidavit, establishing that the notation on the District Court docket in full was as follows:
"P.G. [pled guilty] through atty [Attorney], 21 days--Credit for Time Served."
This Motion, supported by Affidavit, further states:
The evidence the appellant was not present, and was not advised of his constitutional rights as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), is uncontroverted by evidence in the record to the contrary. Nevertheless, the trial judge's Order, overruling the Motion to Suppress, "found from the evidence presented that the said conviction is valid on its face and the Court having found no evidence to the contrary ... the Motion to Suppress is hereby denied."
The trial judge could have reached this result only for one of two reasons: (1) because the Circuit Judge had been the District Judge at the time the plea of guilty was entered to this prior marijuana offense and was now ruling on the Motion to Suppress from his personal knowledge of facts not in this record; or (2) because the court was of the opinion that the plea of guilty in absentia, as permitted by RCr 8.28(4) in "prosecutions for misdemeanors," precludes the defendant from later challenging the conviction on grounds the trial judge had not "canvassed" his Boykin rights. Boykin v. Alabama, supra, specifies the court taking a guilty plea must discuss certain federal constitutional rights with the defendant to make sure he had a full understanding of what the plea connotes and of its consequences. Regardless of which of these two alternative reasons support the circuit court's decision to permit the Commonwealth to utilize the prior misdemeanor conviction to establish this appellant as a subsequent offender, the situation calls for reversal.
First, if the Circuit Judge knew, contrary to the record, that he did in fact canvass the appellant's Boykin rights with him on the prior occasion when he accepted the guilty plea while serving as District Judge, this is "personal knowledge" of the type abjured in KRS 26A.015(2)(a) and the Canons of Judicial Ethics as codified in SCR 4.300, Canon 3C, Disqualification, subsection (1)(a). Both the statute and our rule specifically require a Judge to "disqualify himself in any proceeding where he has personal knowledge of disputed evidentiary facts concerning the proceedings." 1 The record in this case shows that at the same time the appellant filed his Motion to Suppress, he also filed a Motion to Recuse, specifically addressed to the fact that the Circuit Judge was the same "Judge who signed the order dated October 30, 1986, reflecting a conviction of this defendant on a charge of possession of marijuana." This Motion to Recuse was overruled along with the Motion to Suppress. If the Circuit Judge was not going to suppress the evidence of this previous misdemeanor conviction and thus remove the second or subsequent offender issue from this case, it was an abuse of discretion for him to deny the Motion to Recuse, because he would then be sitting in violation of the statute and rule quoted above. In Carter v. Commonwealth, Ky.App., 641 S.W.2d 758 (1982), the Court of Appeals held a trial judge was required to recuse because he was the County Attorney at the time of a prior plea of guilty which was now being challenged in a persistent felony offender proceeding. The conflict is even more pronounced in present circumstances than in Carter, and the rationale of the Carter Opinion is persuasive and controlling. As authority to the contrary, the Commonwealth has cited Marlowe v. Commonwealth, Ky., 709 S.W.2d 424 (1986), cert. denied 479 U.S. 946, 107 S.Ct. 427, 93 L.Ed.2d 378 (1986), holding a case need not be reversed automatically because a judge who sat in a prior related case fails to recuse. Marlowe rejects a per se disqualification rule in all circumstances. But recusal must be the rule in those situations where the judge's knowledge about the case is obtained from a source other than the case record and may bear on the decision.
Further reasons for recusal are: (1) there was an issue on appeal that called for the trial judge to review a decision he had made at the District Court level; and (2) the trial judge was apprised of his connection with the matter sufficiently in advance of the time when the case was to be heard so that he could have been replaced without interrupting the procedure. The situation called for recusal.
Of course, the situation regarding recusal is different if the trial judge sustained the Motion to Suppress based solely on the record from District Court and the authority to take a guilty plea in absentia under RCr 8.28(4). But the situation would still require reversal. When a defendant challenges the validity of a prior conviction for enhancement purposes, his federal constitutional rights under Boykin v. Alabama, supra, and its progeny must take precedence over our Rules of Procedure permitting trial of misdemeanors in absentia. Whether a plea of guilty is voluntary for purposes of the federal constitution is a federal question. Marshall v. Lonberger, 459 U.S. 422, 431, 103 S.Ct. 843, 849, 74 L.Ed.2d 646 (1983). Federal law requires that before any court accepts a guilty plea first it must determine that the defendant is fully cognizant of the fundamental constitutional guarantees which are waived upon entry of the plea. Sizemore v. District Court, 735 F.2d 204, 206 (6th Cir.1984). In Dunn v. Commonwealth, Ky., 703 S.W.2d 874 (1986), cert. denied 479 U.S. 832, 107 S.Ct. 121, 93 L.Ed.2d 67 (1986), we said that a silent record does not automatically foreclose use of a prior conviction because Boykin v. Alabama, supra, involved a direct appeal rather than a collateral attack upon a final judgment. A final judgment of conviction, like any judgment, should be entitled to a presumption of regularity, at least until there is some evidence to the contrary. The United States Supreme Court has not yet held otherwise.
But here the record is not silent. The record reflects that the prior conviction was based upon appellant's guilty plea made "through [his] attorney." Both the District Court Clerk's testimony and the appellant's Affidavit, uncontradicted, establish the prior conviction was constitutionally defective because the court did not canvass the appellant's Boykin rights with him at that time. Indeed, there is nothing here to suggest that his attorney, or anyone else, did so either. Unless the trial judge had personal knowledge of the circumstances of this guilty plea which proved otherwise, in which case he should have recused himself and been a witness, it was prejudicial error to overrule the Motion to Suppress in these circumstances.
Further, this error was compounded when the evidence of this prior misdemeanor offense was introduced during the guilt phase of the trial on the present charges. Because the "second or subsequent offense" issue was tried interwoven with the current offenses for which the appellant was on trial, the whole case was prejudiced. Both the trial judge's failure to recuse and this inadmissible evidence of collateral...
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