RENDERED: APRIL 8, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1439-MR
ROBERT A. BAGWELL, JR. APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
v. HONORABLE JOHN R. GRISE, JUDGE
ACTION NO. 17-CR-00825
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, COMBS, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Robert A. Bagwell, Jr., pro se, appeals from an order
denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion in which
he alleged ineffective assistance of counsel. Appellant claims that the trial court
should have vacated his sentence, or in the alternative, granted him a hearing on
his motion. We find no error and affirm.1
FACTS AND PROCEDURAL HISTORY
On January 25, 2017, Appellant was indicted on a single count of
first-degree sexual abuse.2 It was alleged that he made sexual contact with a
family member who was incapable of consent. The Commonwealth indicated that
DNA testing was being done and that additional and more severe charges might be
brought at a later date. In August of 2017, Appellant’s trial counsel informed the
court that Appellant and the Commonwealth had reached a plea agreement.
Appellant agreed to plead guilty to first-degree rape3 and the Commonwealth
would recommend a fifteen-year sentence. In exchange for the plea agreement, the
Commonwealth agreed not to pursue first-degree sodomy4 and incest5 charges.
On August 16, 2017, Appellant entered his guilty plea pursuant to the
agreement. He stated during his plea colloquy that he was satisfied with the plea
1
We note that Appellant’s brief does not comply with the requirements set forth in Kentucky
Rules of Civil Procedure (CR) 76.12. When this happens, this Court may ignore the deficiencies
or strike the brief. Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010). We choose to ignore
the deficiencies in the brief and review the case on the merits.
2
Kentucky Revised Statutes (KRS) 510.110.
3
KRS 510.040.
4
KRS 510.070.
5
KRS 530.020.
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agreement and his counsel’s performance. The trial court questioned Appellant
extensively about his decision to plead guilty. Around a month after entry of the
guilty plea, and before final sentencing, Appellant sent a hand-written letter to the
trial judge indicating that he wished to withdraw his guilty plea because he
believed he had been coerced into pleading guilty by his trial counsel. In this
letter, he detailed a graphic alternate scenario in which he admitted to sexual abuse,
but denied rape. We note that the events he described in the letter would also have
been sufficient to prove the sodomy and incest charges.
On September 26, 2017, the date of sentencing, the trial court
questioned Appellant regarding his motion to withdraw his guilty plea. Appellant
indicated that after additional discussions with trial counsel, he wished to keep the
plea agreement and withdraw his motion. Appellant stated that the statements
made in the hand-written motion were false and his statements made during his
plea colloquy were true. The court questioned Appellant about his motion and his
wish to keep the plea agreement. The court then imposed the fifteen-year sentence.
On July 27, 2018, Appellant filed another hand-written motion to
withdraw his guilty plea. Some of the arguments made in that motion were in
regard to ineffective assistance of counsel. The court ultimately held that
Appellant had entered the plea knowingly and voluntarily and denied the motion.
No appeal was taken.
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On September 16, 2019, Appellant, pro se, filed the underlying RCr
11.42 motion alleging ineffective assistance of counsel. On October 5, 2020, the
trial court denied the motion without an evidentiary hearing. This appeal followed.
ANALYSIS
To prevail on a claim of ineffective assistance of counsel, Appellant
must show two things:
First, the defendant must show that counsel’s
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense.
This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d
674 (1984). “[T]he proper standard for attorney performance is that of reasonably
effective assistance.” Id.
An error by counsel, even if professionally
unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error had no
effect on the judgment. The purpose of the Sixth
Amendment guarantee of counsel is to ensure that a
defendant has the assistance necessary to justify reliance
on the outcome of the proceeding. Accordingly, any
deficiencies in counsel’s performance must be prejudicial
to the defense in order to constitute ineffective assistance
under the Constitution.
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Id. at 691-92, 104 S. Ct. at 1066-67 (citations omitted). “It is not enough for the
defendant to show that the errors had some conceivable effect on the outcome of
the proceeding.” Id. at 693, 104 S. Ct. at 2068. “The defendant must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.
Ct. at 2068. Additionally, “a hearing is required only if there is an issue of fact
which cannot be determined on the face of the record.” Stanford v.
Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993).
Judicial scrutiny of counsel’s performance must be
highly deferential. It is all too tempting for a defendant
to second-guess counsel’s assistance after conviction or
adverse sentence, and it is all too easy for a court,
examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omission
of counsel was unreasonable. A fair assessment of
attorney performance requires that every effort be made
to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s
perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must indulge a
strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that,
under the circumstances, the challenged action “might be
considered sound trial strategy.” There are countless
ways to provide effective assistance in any given case.
Even the best criminal defense attorneys would not
defend a particular client in the same way.
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Strickland, 466 U.S. at 689-90, 104 S. Ct. at 2065 (citations omitted).
In addition, because this case revolves around a guilty plea, we must
examine this issue a little differently.
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 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 pleaded guilty, but would have insisted on going
to trial.
Evaluating the totality of the circumstances
surrounding the 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.”
While “[s]olemn declarations in open court carry a strong
presumption of verity,” “the validity of a guilty plea is
not determined by reference to some magic incantation
recited at the time it is taken[.]” The trial court’s inquiry
into allegations of ineffective assistance of counsel
requires the court to determine whether counsel’s
performance was below professional standards and
“caused the defendant to lose what he otherwise would
probably have won” and “whether counsel was so
thoroughly ineffective that defeat was snatched from the
hands of probable victory.” Because “[a] multitude of
events occur in the course of a criminal proceeding which
might influence a defendant to plead guilty or stand
trial,” the trial court must evaluate whether errors by trial
counsel significantly influenced the defendant’s decision
to plead guilty in a manner which gives the trial court
reason to doubt the voluntariness and validity of the plea.
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Bronk v. Commonwealth, 58 S.W.3d 482, 486-87 (Ky. 2001) (citations omitted).
On appeal, Appellant argues that counsel was ineffective for failing to
investigate Mr. Hullet, a prosecution witness who allegedly witnessed Appellant’s
illegal actions. He also claims counsel was ineffective for failing to suppress
incriminating statements he made to the police and for failing to get Appellant a
psychiatric evaluation.
We do not believe Appellant has met the burden of proving
ineffective assistance of counsel. Had Appellant gone to trial, the Commonwealth
indicated it would charge him with first-degree rape, first-degree sodomy, and
incest. The maximum possible penalty had he been found guilty would have been
sixty years in prison. If we were to believe the alternate version of the incident that
Appellant indicated occurred in his letter to the trial court, that he was only guilty
of first-degree sexual abuse, first-degree sodomy, and incest, the maximum penalty
he would have faced would be forty-five years in prison. As it stands, Appellant
pleaded guilty to first-degree rape and received a sentence of fifteen years. This
plea agreement was clearly to Appellant’s benefit.
In addition, Appellant stated on the record on two separate occasions
that he was guilty of first-degree rape. He was questioned thoroughly by the trial
court on those two occasions and the court believed Appellant was entering his
plea knowingly, intelligently, and voluntarily. Also, Appellant indicated he
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understood the consequences of his guilty plea on both of the occasions he was
questioned by the court. Furthermore, Appellant’s trial counsel indicated she had
explained the situation to Appellant and that he understood the consequences of his
guilty plea. Finally, the trial court stated that, even though Appellant indicated he
had some mental issues, he appeared lucid and competent.
We also note that Appellant had two different trial attorneys. The first
attorney represented him through his guilty plea. The second attorney represented
him at his sentencing. During the sentencing hearing, Appellant indicated that his
second attorney had explained things to him more thoroughly than his first counsel
and that is why he chose to abandon his motion to withdraw his guilty plea and
continue with his sentencing pursuant to the plea. Appellant does not raise
ineffective assistance of counsel issues concerning the second attorney. Appellant
could have attempted to withdraw his guilty plea while being represented by his
second attorney, but chose not to and told the court that he was content with his
plea agreement.
CONCLUSION
Based on the foregoing, we affirm the judgment of the trial court. We
believe Appellant had effective trial counsel, that the court did not need to hold an
evidentiary hearing, and that Appellant benefitted from his guilty plea.
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ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Robert A. Bagwell, Jr., pro se Daniel Cameron
Central City, Kentucky Attorney General of Kentucky
Thomas A. Van De Rostyne
Assistant Attorney General
Frankfort, Kentucky
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