RENDERED: FEBRUARY 26, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1553-MR
ELMO STEWART APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
v. HONORABLE JOHN R. GRISE, JUDGE
ACTION NOS. 18-CR-00445 & 18-CR-00446
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT, MAZE, AND L. THOMPSON, JUDGES.
MAZE, JUDGE: Elmo Stewart appeals from an order of the Warren Circuit Court
denying his motion to withdraw his guilty plea. We conclude that the trial court
did not clearly err in finding that his guilty plea was knowing and voluntary. As a
result, the court did not abuse its discretion by denying his motion to withdraw the
plea. The other issue raised by Stewart is not properly presented in this appeal.
Hence, we affirm.
The relevant facts of this matter are not in dispute. On April 18, 2018,
a Warren County grand jury returned an indictment charging Stewart with one
count each of attempted murder, first-degree wanton endangerment, second-degree
assault, and being a persistent felony offender in the first degree (PFO I). The
grand jury separately indicted Stewart on one count of possession of a handgun by
a convicted felon and an additional PFO I count arising from the same events. The
trial court granted the Commonwealth’s motion to sever the indictments and
scheduled a trial on the handgun possession charge and second PFO I charge to
begin on April 11, 2019.
On April 10, 2019, the parties appeared in court at a pre-trial hearing.
At the hearing, Stewart’s counsel advised the court that she and Stewart had a
disagreement over the presentation of evidence at trial. In particular, Stewart
wanted to introduce body-cam footage taken by Officer Larry Zuniga at his arrest.
Counsel later explained that Stewart believed the video would show that Officer
Zuniga would not have been able to see the gun until after it hit the ground.
Counsel stated that the video would not be helpful because it only displayed the
aftermath of the shooting and not the shooting itself. Counsel also stated she
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believed that the footage would portray Officer Zuniga in a more sympathetic light
and would not have supported Stewart’s “choice of evils” defense.
The trial court declined to conduct a Faretta1 hearing to determine
whether Stewart would be allowed to act as his own counsel in introducing the
video. The court advised Stewart that it would not second-guess his counsel’s
strategic decisions. However, the court stated that it would revisit that ruling
during trial if Stewart still wanted to introduce the video over counsel’s objections.
Later that same day, the parties advised the court that they had
reached a plea agreement on all charges. The Commonwealth agreed to dismiss
one of the PFO I charges, as well as the attempted murder and second-degree
assault charges, in exchange for Stewart’s guilty plea to first-degree wanton
endangerment, possession of a handgun by a convicted felon, and PFO I.2 The
Commonwealth further agreed to recommend a total sentence of ten years’
imprisonment.
During the plea colloquy, Stewart stated that he understood he would
not be eligible for probation or parole, but he was unclear about how it affected his
ability to earn good-time credit. The trial court also directly questioned Stewart
1
Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
2
Stewart entered an unconditional guilty plea to the handgun-possession and PFO I charges, and
he entered an Alford plea to the wanton endangerment charges. See North Carolina v. Alford,
400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
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about why he was changing his plea. Stewart responded that he was concerned
about the possibility of getting a longer sentence at trial. He also stated that the
plea was in his best interests and that he had not been pressured into accepting the
plea. Stewart advised the court that he still disagreed with his counsel about
introduction of the body-cam video. But he stated that his disagreement with
counsel was not the reason he was accepting the plea. Stewart further added that
he was otherwise satisfied with the assistance of his counsel. Based on Stewart’s
representations at the hearing, the trial court accepted his guilty plea.
On April 23, 2019, Stewart filed a pro se motion seeking to withdraw
his guilty plea. Based on the motion, the trial court appointed conflict counsel for
Stewart. The court also scheduled a hearing on Stewart’s motion to withdraw his
guilty plea for August 8, 2019. At the hearing, Stewart testified that his counsel
had not properly advised him about his parole eligibility. Stewart stated that he did
not understand that his sentence would be subject to an 85% parole eligibility.
Stewart further testified that he felt compelled to accept the plea after
counsel refused to present the Zuniga body-cam video at trial. Stewart also
asserted that his counsel failed to share a different police body-cam video with
him. In addition, Stewart testified that his counsel told him to tell the court that he
was accepting the plea because he was afraid of the possible sentence rather than
because he disagreed with counsel over introduction of the body-cam video. On
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cross-examination, Stewart acknowledged that he told the trial court that he was
accepting the guilty plea because he was afraid of the possible sentence. He also
admitted that he was still afraid of the possible sentence.
Stewart’s counsel testified that she and Stewart discussed the
admission of the Zuniga video prior to trial. Counsel had initially agreed with
Stewart to introduce the video at trial. But prior to the April 10, 2019, hearing,
counsel reviewed the video with other attorneys in the public defenders’ office.
Counsel and the other attorneys came to the conclusion that the video would not be
helpful to Stewart’s defense.
Counsel also testified that she researched Stewart’s eligibility to
receive good-time credit while incarcerated. She advised Stewart that, if he earned
the full amount of credit to which he was eligible, then he would be eligible for
parole after serving about six and a half years, less any jail credit for time served.
Counsel also testified that she advised Stewart that the court would not accept the
guilty plea if his only reason for making it was his disagreement over introduction
of the body-cam video. But counsel added that she did not believe that this
disagreement was the primary reason Stewart accepted the plea.
Following the hearing, the trial court denied Stewart’s motion to
withdraw his guilty plea. In written findings entered on August 30, 2019, the trial
court found that Stewart made a knowing and voluntary decision to plead guilty.
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The court noted its lengthy plea colloquy, at which the court and counsel explained
Stewart’s concerns about parole eligibility. Consequently, the trial court found no
credible evidence that Stewart was coerced or that counsel misinformed him on
any substantial matter. Thereafter, the trial court entered a judgment sentencing
Stewart in accordance with his guilty plea. This appeal followed.
On appeal, Stewart contends that his guilty plea was not entered
knowingly, intelligently, and voluntarily. RCr3 8.10 states that “[a]t any time
before judgment the court may permit the plea of guilty . . . to be withdrawn and a
plea of not guilty substituted.” For a guilty plea to be valid, it must be “entered
intelligently and voluntarily.” Bronk v. Commonwealth, 58 S.W.3d 482, 486 (Ky.
2001). In evaluating whether a plea is voluntary, and if counsel’s performance is
implicated, a trial court is required 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. Washington[4] inquiry into the performance
of counsel:
A showing that counsel’s assistance was
ineffective in enabling a defendant to
intelligently weigh his legal alternatives in
deciding to plead guilty has two
components: (1) that counsel made errors so
serious that counsel’s performance fell
3
Kentucky Rules of Criminal Procedure.
4
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
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outside the wide range of professionally
competent assistance; and (2) that the
deficient performance so seriously affected
the outcome of the plea process that, but for
the errors of counsel, there is a reasonable
probability that the defendant would not
have plead guilty, but would have insisted
on going to trial.
Id. at 486-87 (citations omitted). Reviewing the totality of circumstances
revolving around a guilty plea “is an inherently factual inquiry which requires
consideration of ‘the accused’s demeanor, background, and experience, and
whether the record reveals that the plea was voluntarily made.’” Id. at 487
(quoting Centers v. Commonwealth, 799 S.W.2d 51, 54 (Ky. App. 1990)).
Additionally, “the validity of a guilty plea is not determined by reference to some
magic incantation recited at the time it is taken[.]” Id. (internal quotation marks
omitted) (quoting Kotas v. Commonwealth, 565 S.W.2d 445, 447 (Ky. 1978)).
We review a trial court’s finding that a plea was voluntary under a
clearly erroneous standard. Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky.
App. 2004). “A decision which is supported by substantial evidence is not clearly
erroneous.” Id. If the plea was voluntary, a trial court’s ruling on a motion to
withdraw a voluntary guilty plea is reviewed under an abuse of discretion standard.
Bronk, 58 S.W.3d at 487. To amount to an abuse of discretion, the trial court’s
decision must be “arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007) (citing
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Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1995)). Absent a “flagrant
miscarriage of justice,” the trial court will be affirmed. Gross v. Commonwealth,
648 S.W.2d 853, 858 (Ky. 1983).
Stewart again argues that he was compelled to plead guilty due to his
counsel’s refusal to present the Zuniga body-cam video as he requested. Stewart
also maintains that his counsel knew the Commonwealth failed to provide the
body-cam video from Officer Helbig, a second officer on the scene, but failed to
raise the issue with him or the trial court prior to trial. And Stewart contends that
his counsel misadvised him about his parole eligibility, incorrectly informing him
that he would be eligible for parole in six and a half years. Based on these
circumstances, Stewart argues that he was not capable of making a reasoned choice
whether to plead guilty.
However, the trial court extensively addressed all of these issues at the
plea colloquy. The court asked Stewart if he was accepting the guilty plea only
because of his disagreement with counsel over the body-cam video. Stewart
answered that he was also afraid of the potential sentence he might receive should
he go to trial. Stewart’s counsel testified that he expressed these concerns even
before the disagreement about the body-cam video.
In the current case, Stewart faced ten to twenty years on the handgun
possession and PFO I charges. He also faced life imprisonment on the charges in
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the other indictment. Stewart told the trial court he was afraid of the longer term
and wanted to ensure that he could be released. With his plea, Stewart limited his
potential imprisonment to a total of ten years. While Stewart may have had other
concerns about his counsel’s strategic decisions, Stewart failed to show that these
concerns made his decision to accept the guilty plea involuntary.5
Similarly, the trial court did not clearly err in finding that Stewart’s
counsel did not misadvise him about parole eligibility. At the plea colloquy,
Stewart expressed concerns that he would not be eligible to earn good-time credit
while sentenced on his guilty plea. After much discussion, the trial court stated
that the sentence would not affect Stewart’s ability to earn good-time credit.
Stewart has not shown that counsel inaccurately estimated potential parole
eligibility with good-time credit and time served. Stewart has not shown that any
inaccuracies about his parole eligibility affected his decision to accept the guilty
plea.
Finally, Stewart argues that the trial court erred by denying his request
to act as hybrid counsel to present the body-cam video at trial. He contends that
the trial court was required to conduct a Faretta hearing to determine whether he
5
We also note that the Helbig body-cam video was not introduced into the record, and Stewart
does not allege that its content would have assisted his defense. Thus, we are unable to consider
whether Stewart was unfairly prejudiced by counsel’s failure to review the video prior to trial.
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could make a partial waiver of his right to counsel. When a defendant makes a
request to proceed pro se or for hybrid representation, Faretta requires: (1) that
“the trial court must hold a hearing in which the defendant testifies on the question
of whether the waiver is voluntary, knowing, and intelligent”; (2) that “during the
hearing, the trial court must warn the defendant of the hazards arising from and the
benefits relinquished by waiving counsel”; and (3) that “the trial court must make a
finding on the record that the waiver is knowing, intelligent and voluntary.” Deno
v. Commonwealth, 177 S.W.3d 753, 758 (Ky. 2005) (quoting Hill v.
Commonwealth, 125 S.W.3d 221, 226 (Ky. 2004), overruled on other grounds by
Grady v. Commonwealth, 325 S.W.3d 333 (Ky. 2010)).
In this case, the trial court declined to pre-judge counsel’s strategic
decisions without determining whether Stewart’s partial waiver was knowing,
voluntary and intelligent. However, a trial court is not always obligated to conduct
a formal hearing whenever a defendant makes a pro se motion for substitution of
counsel. Schell v. Commonwealth, No. 2006-SC-000662-MR, 2008 WL 203036,
at *3 (Ky. Jan. 24, 2008).
So long as the trial court allows the defendant to state on
the record the reasons why he seeks substitution of
counsel, the trial court may exercise discretion to
determine how extensive the hearing needs to be in light
of the factual circumstances of the individual case. In
particular, where the defendant’s allegations, even if
assumed to be true, would not establish good cause for
substitution of counsel, we would not mandate a
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procedure requiring the trial court to delve further by
questioning defense counsel. This is especially true
where doing so might expose defense strategy.
Id. at *3 (citations omitted).
The trial court allowed Stewart to explain his concerns about
counsel’s unwillingness to introduce the body-cam video. Stewart did not allege
that he had a complete breakdown of his relationship with counsel; only a
disagreement over this one issue. The court was concerned that further inquiry
into the matter would risk exposing trial strategy. And the court stated that it
would consider allowing Stewart to introduce the body-cam video at trial if he still
wanted to do so. Although we do not endorse this practice, we cannot find that the
trial court’s actions were outside of its discretion.
In any event, a voluntary guilty plea operates to waive all defenses
other than that the indictment charges no offense. Parrish v. Commonwealth, 283
S.W.3d 675, 678 (Ky. 2009). For purposes of this appeal, Stewart is limited to
issues relating to the validity of his guilty plea. See Bishop v. Commonwealth, 357
S.W.3d 549, 552-53 (Ky. App. 2011). We have already concluded that Stewart’s
disagreement with counsel over the body-cam video did not render his plea
involuntary, notwithstanding his disagreement with counsel over the body-cam
video. Therefore, the Faretta issue is deemed to be waived. Id. at 553.
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Accordingly, we affirm the judgment of conviction by the Warren
Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Erin Hoffman Yang Daniel Cameron
Assistant Public Advocate Attorney General of Kentucky
Frankfort, Kentucky
Christopher Henry
Assistant Attorney General
Frankfort, Kentucky
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