IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
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RENDERED: DECEMBER 17, 2015
NOT TO BE PUBLISHED
0 ,Suprrinr (Iiinrf of 7firtItarAg.,-,\
2014-SC-000469-MR
AND
2014-SC-000534-MR
KIRBY BRYAN RUANO APPELLANT
ON APPEAL FROM FAYETTE CIRCUIT COURT
V. HONORABLE ERNESTO SCORSONE, JUDGE
NO. 12-CR-01233
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
VACATING AND REMANDING
The trial court accepted Kirby Bryan Ruano's guilty plea; but Ruano filed
a motion with to withdraw that guilty plea before sentencing. After questioning
Ruano and his counsel, the trial court denied Ruano's motion and sentenced
him in accordance with the plea agreement to thirty years' imprisonment for
murder and ten years' imprisonment for robbery, to run concurrently, for a
total sentence of thirty years.
Ruano now appeals as a matter of right' the trial court's summary
denial of his motion to withdraw his guilty plea after a discussion on the record
with Ruano and his counsel. We conclude that the trial court's informal
1 Ky.Const. § 110(2)(b).
disposition of Ruano's motion to withdraw his guilty plea compromised his
right to conflict-free counsel. So we vacate the judgment and the order denying
Ruano's motion to withdraw his guilty plea and remand the matter to the trial
court for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND.
Ruano and two others were indicted on charges of murder and robbery.
The indictment contained a capital-offense classification and alleged the crime
was committed with aggravating circumstances. The Commonwealth did not
file its notice of aggravators for more than a year after the return of the
indictment.
After the Commonwealth filed its notice of aggravators, Ruano moved to
exclude aggravated penalties, arguing that if the Commonwealth intended to
seek them, it should have given notice much sooner. Until the
Commonwealth's notice of aggravated penalties, Ruano's counsel had been
preparing for trial as if the case were non-capital. But before the scheduled
hearing on Ruano's motion to exclude the aggravated penalties, Ruano reached
a plea agreement with the Commonwealth. So the trial court conducted a
proper plea colloquy with Ruano and accepted his guilty plea. The trial court
delayed sentencing while one of Ruano's co-defendants stood trial. Ruano
moved the court to withdraw his plea before a sentencing hearing could be
held.
The trial court questioned Ruano and counsel about the grounds for
Ruano's motion before denying it. The trial court then sentenced Ruano
2
according to the terms of his plea agreement and entered judgment
accordingly.
II. ANALYSIS.
Kentucky Rules of Criminal Procedure (RCr) 8.10 provides that "any time
before judgment the court may permit the plea of guilty or guilty but mentally
ill[] to be withdrawn and a plea of not guilty substituted." 2 As the rule
indicates, the decision on the motion to withdraw a guilty plea is committed to
the sound discretion of the trial court. That is true with a single exception: if a
defendant alleges his plea was "entered involuntarily[, he] is entitled to a
hearing on the motion." 3 And if the trial court then finds a defendant
involuntarily entered his guilty plea, that defendant's RCr 8.10 motion must be
granted. 4 We review a trial court's decisions on such motions for an abuse of
discretion. The trial court's determination of whether the defendant voluntarily
entered the plea, though, is reviewed for clear error, i.e., "whether the
determination was supported by substantial evidence." 5
Ruano's challenge to the trial court's denial of his withdrawal motion is
effectively two-pronged: (1) the trial court erroneously denied his withdrawal
motion without holding an evidentiary hearing; or, in the alternative, (2) the
process followed by the trial court to decide the motion effectively denied him
the right to counsel afforded by the Sixth Amendment to the United States
2 Emphasis added.
3 Williams v. Commonwealth, 229 S.W.3d 49, 51 (Ky. 2007).
4 Edmonds v. Commonwealth, 189 S.W.3d 558, 566 (Ky. 2006).
5 Id. at 566 (citing Rodriguez v. Commonwealth, 87 S.W.3d 8, 10-11 (Ky. 2002)).
3
Constitution and Eleventh Amendment to the Kentucky Constitution. And if
his rights were violated, Ruano contends we should remand the case for an
evidentiary hearing with conflict-free counsel.
In fact, the trial court did conduct a hearing during which Ruano and his
counsel were questioned about Ruano's RCr 8.10 motion. However, neither
Ruano nor his counsel was placed under oath. Ruano told the trial court that
just before he was offered the plea deal his girlfriend heard that "people would
handle him" if he returned to the streets. Ruano said he took this as a threat
and grew concerned about the safety of his family if he were out of prison with
them. Also, Ruano told the trial court he was given less than twenty-four
hours to review the terms of the plea deal—a length of time in retrospect Ruano
felt was unfair. Finally, Ruano said he was pressured'by the Commonwealth's
late notice of its intent to seek the death penalty.
The trial court responded by reminding Ruano of the extensive colloquy
they had when Ruano entered his guilty plea. According to the trial court, at
no point during that guilty-plea colloquy did Ruano indicate that the guilty plea
was contrary to his wishes or otherwise involuntary. Ruano indicated he
understood the terms of the guilty plea and the ramifications of his acceptance.
The trial court asked Ruano if he had answered truthfully all the questions
during his guilty-plea colloquy. Ruano's first response was that he had not
been truthful during his guilty-plea colloquy; but after the trial court allowed
him time to consult with counsel, Ruano changed his response to say that he
had been truthful during the guilty-plea colloquy.
4
The trial court is free to deny a motion under RCr 8.10 without an
evidentiary hearing, "if the allegations in the motion are inherently unreliable,
are not supported by specific facts or are not grounds for withdrawal even if
true."6 After all, a[s]olemn declarations in open court carry a strong
presumption of verity. The presentation of conclusory allegations unsupported
by specifics is subject to summary dismissal, as are contentions that in the
face of the record are wholly incredible." 7 But trial courts must be cautious in
taking this tack because "the validity of a guilty plea is not determined by
reference to some magic incantation recited at the time it is taken," 8 i.e. the
validity of a guilty plea is not determined from "specific key words uttered at
the time [it] was taken, but from considering the totality of the circumstances
surrounding the plea." 9
In summary, if a defendant fails to present any specific allegations
pertaining to the involuntariness of his plea, it is not then error for the trial
court to rely solely on the record and summarily deny the defendant's motion
to withdraw a guilty plea.'° Of course, we do not go so far as to say a trial
6 United States v. Harris-Thompson, 751 F.3d 590, 603 (8th Cir. 2014).
7 Edmonds, 189 S.W.3d at 569 (quoting Blackledge v. Allison, 431 U.S. 63, 74
(1977)).
8 Bronk v. Commonwealth, 58 S.W.3d 482, 487 (Ky. 2001).
9 Centers v. Commonwealth, 799 S.W.2d 51, 54 (Ky.App. 1990).
10 It is important to note that the basis for Ruano's withdrawal motion, in so
many words, was that his plea was involuntary. If a plea was entered involuntarily,
the trial court must grant the motion to withdraw. See Rodriguez v. Commonwealth,
87 S.W.3d 8, 10 (Ky. 2002). Discerning whether or not a plea was entered
involuntarily mandates "[e]valuating the totality of the circumstances surrounding the
guilty plea [which] is an inherently factual inquiry." Commonwealth v. Tigue,
459 S.W.3d 372, 387 (Ky. 2015) (quoting Bronk, 58 S.W.3d at 487 (alterations in
5
court may always simply rely on its Boykin colloquy when faced with a motion
to withdraw a guilty plea; but we do say that a defendant must present a
colorable argument before a trial court is required to hold an evidentiary
hearing on the motion to withdraw a guilty plea. Perhaps Ruano's allegations
were facially insufficient, 11 but that determination is irrelevant now because
the trial court ruled on Ruano's motion in a summary fashion but undertook
an informal inquiry of Ruano and his counsel regarding the merits and facts of
his claim. Ostensibly, the trial court did not feel Ruano's claims warranted an
evidentiary hearing but did have Ruano and his counsel provide the factual
background concerning Ruano's claims.
We find this approach problematic. Ruano asserts that his Sixth and
Fourteenth Amendment rights were abridged because he was not provided
conflict-free counsel at the trial court's inquiry into the merits of his
withdrawal motion. Ruano was not provided new counsel for his plea
withdrawal hearing. The same attorney who negotiated the plea with the
original)). Generally speaking then, a defendant is entitled to an evidentiary hearing
when he makes allegations that he involuntarily agreed to the guilty plea. Ruano
makes such allegations here, just in a highly conclusory and vague manner.
11 Ruano's contentions, even if true, do appear facially weak. Ruano may have
had twenty-four hours to review the terms of the plea agreement, but plea negotiations
and discussions between the Commonwealth and Ruano's counsel had been underway
for weeks. The Commonwealth's plea offer did not blindside Ruano. The same
analysis applies to the Commonwealth's late announcement that it would seek the
death pehalty. Ruano was indicted for a capital offense. So the death penalty was
always looming, any promises or indications expressed or implied by the
Commonwealth notwithstanding. As for Ruano's allegations of threats to his family,
these do not constitute the type of coercion imagined when discussing the
voluntariness of a guilty plea. The federal Constitution as well as our own
Constitution protect citizens from governmental coercion, manipulation, or
oppression. Even if Ruano's girlfriend received threats, it would say nothing about the
government's alleged role in coercing Ruano to enter a guilty plea.
6
Commonwealth also represented him at the hearing. According to Ruano,
then, his counsel was given the impossible role of both defending him while
serving as a witness on behalf of the guilty plea that she herself negotiated. In
fact, at the beginning of the trial court's inquiry, Ruano's counsel made the
trial court aware that Ruano's decision to withdraw his plea was against her
advice. This alleged error is not preserved for our review, so Ruano requests
palpable-error review. 12
We recently undertook an exhaustive review of a defendant's right to
counsel during proceedings to withdraw a guilty plea. 13 We will not repeat that
here; but we should stress that a proceeding to withdraw a guilty plea "is vital
to ensur[e] the integrity of the process by which guilt may ultimately be
determinedn 14 and, perhaps as a result, constitutes a "critical stage[] of the
criminal proceeding,” 15 entitling a defendant to counsel. Ruano was
accompanied by counsel at the instant hearing, but he alleges the
circumstances were so inherently prejudicial that his constitutional right to
counsel was violated per se. As we acknowledged in Tigue, the Supreme Court
has identified particular circumstances "where although counsel is available to
assist the accused during trial, the likelihood that any lawyer, even a fully
12 See RCr 10.26. A violation of constitutional rights is almost always
considered a palpable error, unless, of course, the error is harmless beyond a
reasonable doubt—a much higher standard than our typical harmless-error review.
See Chapman v. California, 366 U.S. 18, 24 (1967).
13 See Tigue, 459 S.W.3d at 372.
14 Id. at 384 (quoting United States v. Davis, 239 F.3d 283, 286 (2d Cir. 2001)).
15 Montejo v. Louisiana, 556 U.S. 778, 786 (2009) (citing United States v. Wade,
388 U.S. 218, 227-28 (1967); Powell v. Alabama, 287 U.S. 45, 57 (1932)).
7
competent one, could provide effective assistance is so small that a
presumption of prejudice is appropriate without inquiry into the actual conduct
of the trial." 16 The two situations are a complete denial of counsel at a critical
stage and when counsel is afflicted by an actual conflict of interest. Of these,
Ruano, of course, does not argue he was denied counsel completely but that
his counsel was "burdened by an actual conflict of interest." 7
The facts here present a close call. Some of Ruano's allegations do not
concern his counsel's behavior. Like Tigue, Ruano was represented at the
hearing by his trial counsel. Ruano's counsel was confronted with arguing
Ruano experienced coercion while simultaneously arguing Ruano's plea was
voluntary. Counsel was not responsible for the Commonwealth's seeking the
death penalty late in the case or the threats Ruano's girlfriend received. The
only aspect in which counsel may have been involved would be the alleged
compressed timeline for accepting the Commonwealth's plea offer. But Ruano
does not suggest his counsel was responsible for the compressed timeline.
Ruano also argues that his counsel argued against him and did not
effectively investigate or present his claims of coercion. Counsel did inform the
trial court that Ruano's withdrawal motion was against her advice but that, in
and of itself, is not indicative of an actual conflict. Attorneys may disagree with
their clients while remaining capable of proceeding in a diligent manner.
16Tigue, 459 S.W.3d at 384-85 (internal quotation marks omitted) (quoting
United States v. Cronic, 466 U.S. 648, 659-60 (1984)).
17 Smith v. Robbins, 528 U.S. 259, 287 (2000) (quoting Strickland v. Washington,
466 U.S. 668, 692 (1984)).
8
Additionally, Ruano highlights a particular portion of the informal hearing as
indicative of his counsel's conflict and opposition to his withdrawal motion.
Counsel conferred with Ruano after Ruano informed the trial judge he gave
false statements during his plea colloquy. Following the conference, Ruano
recanted that assertion and reiterated his previous statements were true.
Ruano presents this situation as proof that counsel acted against his interests
to benefit hers, i.e., she was interested in preserving the plea she had
negotiated. Of course, counsel may have been more concerned with Ruano
committing perjury than preserving the plea deal; but Ruano's counsel's
position contrary to his interests and wishes is troublesome.
Perhaps Ruano is correct in arguing that different counsel would have
investigated his allegations further and asserted them more clearly—that is
exactly the point. We cannot endorse the trial court's approach to resolving
Ruano's withdrawal motion. Ruano effectively testified about his allegations
and then his counsel effectively testified about her experience during the plea
negotiations. To say the trial court's discussion on the record was not palpable
error would be to overlook our unbroken refrain that an attorney should not
testify at trial. In Tigue, we discussed an attorney simply being silent at a
withdrawal hearing and the harmful impact that would have on a defendant's
right to counsel. In addition, we noted an attorney's advocacy contrary to the
defendant's creates an actual conflict. This case may not present as clean an
example of an actual conflict, but a conflict exists nonetheless. We are unable
to conclude that Ruano's right to counsel was honored. And we cannot
9
approve of the trial court's choice to resolve possible issues of fact so
informally. So we are constrained to conclude that Ruano suffered a manifest
injustice. 18
As we outlined in Tigue, the proper remedy is to vacate Ruano's
judgment of conviction and "rewind this matter to the point in time when
[Ruano] had already entered his plea but before he was sentenced.” 19 Ruano,
of course, may seek again to withdraw his guilty plea. If so, and if the trial
judge holds a hearing, Ruano is entitled to new counsel.
III. CONCLUSION.
For the foregoing reasons, we vacate the judgment and the order denying
Ruano's motion to withdraw his guilty plea. The case is remanded to the
circuit court for further proceedings consistent with this opinion.
Minton, C.J.; Abramson, Cunningham, Keller, Noble, Venters, JJ.,
sitting. All concur. Wright, J., not sitting.
18 Martin v. Commonwealth, 409 S.W.3d 340, 344 (Ky. 2013).
19 Tigue, 459 S.W.3d at 390.
10
COUNSEL FOR APPELLANT:
Kathleen Kallaher Schmidt
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Andrea Leigh Mattingly
Assistant Commonwealth's Attorney
Office of the Fayette Commonwealth's Attorney
11