RENDERED: JUNE 23, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1347-MR
TEMMY WISE APPELLANT
APPEAL FROM LARUE CIRCUIT COURT
v. HONORABLE CHARLES C. SIMMS, III, JUDGE
ACTION NOS. 20-CR-00082 AND 21-CR-00043
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: EASTON, JONES, AND LAMBERT, JUDGES.
EASTON, JUDGE: Temmy Wise (“Wise”) appeals the denial of his motion to
withdraw his guilty plea in these two related cases. Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The following factual summary is made from the presentence
investigation, which Wise did not challenge at the time of his sentencing. Wise
was in an on-again off-again sexual relationship with Carrie Harper (“Harper”).
Harper has a daughter (“M.J.”). Starting when M.J. was eleven years old, Wise
provided methamphetamine to M.J. In exchange for the methamphetamine, Wise
would obtain from M.J. sexual favors, including vaginal, oral, and eventually anal
sex. This continued for three years. M.J. estimates this happened at least one
hundred times. When M.J. was at the last of her three treatment placements during
this time, Wise brought her methamphetamine. The discovery of this
methamphetamine caused M.J. to be terminated from the treatment.
The first indictment (Case No. 20-CR-00082) followed discovery of
methamphetamine in Wise’s home. The second indictment (Case No. 21-CR-
00043) resulted from M.J.’s disclosure of the sexual activities. Both the drug and
sex charges were evidenced by text messages and video evidence. With multiple
charges of unlawful transaction with a minor as well as rape and sodomy, Wise
faced a potential sentence of the seventy-year maximum.
On May 13, 2022, Wise entered a guilty plea for a total sentence of
twelve years, concurrent on both cases, or just two years more than the minimum
Wise could have received as charged. Before the later scheduled sentencing
hearing, Wise asked the court to permit him to withdraw his guilty plea. The trial
court appointed new counsel for the pro se motion and conducted a hearing on
September 23, 2022. The trial court denied the withdrawal of the guilty plea.
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On appeal, Wise maintains he did not understand the charges against
him. Specifically, Wise contends he did not know what sodomy was. Wise
contends he did not sufficiently know what he was doing and thus his plea was not
voluntary. We will analyze both the guilty plea and the evidence at the hearing on
the withdrawal motion as well as the rest of the record to review this primary
question of voluntariness.
STANDARD OF REVIEW
We review a trial court’s factual determination of whether a guilty
plea was voluntary under a clearly erroneous standard. A finding supported by
substantial evidence is not clearly erroneous. The trial court must consider the
totality of the circumstances presented about a guilty plea when determining this
fact. Rigdon v. Commonwealth, 144 S.W.3d 283, 287-288 (Ky. App. 2004). If a
guilty plea was involuntary, a motion to withdraw it must be granted. Otherwise,
the trial court has discretion to grant or deny the motion. We review such a
decision under an abuse of discretion standard. “A trial court abuses its discretion
when it renders a decision which is arbitrary, unreasonable, unfair, or unsupported
by legal principles.” Id. at 288.
ANALYSIS
While Wise is not a good speller, he was able to communicate with
the trial court effectively. The numerous letters Wise sent to the trial court were
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sometimes drafted with the assistance of other inmates. Letters handwritten by
Wise convey their meaning but have challenging spellings of some words. For
example, when Wise complained he wanted to get out of his plea deal, he spelled
deal as “deill.”
There is no question Wise has some limitations. The trial court
ordered an evaluation for competency. Wise had no more than a seventh-grade
education. Testing of intelligence revealed unusual results. The composite I.Q.
score was 85, but Wise had a verbal score of 70 and a non-verbal score of 113.
The evaluator did not diagnose an intellectual disability. On the topic of sodomy,
the evaluator noted Wise required an explanation of the term. As we will see, this
was not the first nor the last time what constitutes sodomy was explained to Wise.
During this case, Wise would be represented by four different public
defenders. Wise appeared on the trial court’s docket a dozen times. At none of his
court appearances did Wise appear hesitant or confused in his interactions with the
trial court and counsel. Of note is the appearance on August 2, 2021, when Wise
explained to the judge about his direction to his attorney to get certain records and
that he had asked the attorney to file a discovery motion.
Wise did raise a question about sodomy at his third court appearance
on June 7, 2021. In response, his first public defender informed the judge that she
had explained this to Wise. She added that Wise understands it, he just doesn’t
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agree he should be charged with it. During his testimony at the plea withdrawal
hearing, Wise concedes his first attorney explained things to him, but he persisted
with his claim he did not understand.
Wise’s third public defender represented him during the guilty plea
and later testified at the plea withdrawal hearing. This attorney was aware of
Wise’s limitations and acted accordingly. She read everything to Wise and would
use smaller words to help him understand. For example, when the word
“impaired” was used, the attorney explained about not being able to understand
because of being drunk or on drugs.
Of particular importance, the attorney read the victim’s statements to
Wise and explained each charge against him based on what the victim had said.
Like what the first attorney had said at an earlier appearance, this third attorney
also said Wise understood what sodomy was, he just didn’t like being charged with
it.
Wise complains the prosecutor forced him to accept the plea, despite
his sworn statement that no one was forcing him to accept the plea agreement.
Testimony at the plea withdrawal hearing indicates it was Wise who engaged the
prosecutor during the negotiations in the hope of helping his co-defendant, Harper.
Wise’s attorney heard Wise ask the prosecutor about dropping the sex charges.
Harper was charged with complicity in the sexual abuse of her daughter. With
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Wise’s plea, Harper was allowed to enter a plea with probated time on lesser
charges.
With all this background, we examine the recording of the plea itself.
The judge told Wise he could stop and ask questions anytime. When asked if he
understood what his attorney had read and explained to him, Wise said he did. The
judge read each charge and asked Wise if he understood it. When asked about the
sodomy charge, Wise said he understood it.
Significantly, Wise asked questions during the colloquy. In answer to
Wise’s question, the judge explained the potential for persistent felony offender
enhancement. At one point, the judge noticed hesitation by Wise when the judge
notified Wise of the sex offender requirements resulting from his plea. The judge
explained the requirements more fully, and Wise sought no further explanation.
The trial court found Wise had entered his guilty plea voluntarily.
Substantial evidence supports this finding. It is not clearly erroneous. The trial
court then was not required to allow the withdrawal of the guilty plea. The trial
court exercised its discretion not to permit the withdrawal of the guilty plea. While
the trial court may have been tempted to reject the terms of the plea because of its
remarkable lenience, there was certainly no abuse of discretion in not permitting
the withdrawal of the guilty plea.
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CONCLUSION
The trial court did not make any erroneous finding of fact and
properly exercised its discretion to deny the withdrawal of Wise’s voluntary guilty
plea. The Larue Circuit Court is AFFIRMED.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Adam Meyer Daniel Cameron
Frankfort, Kentucky Attorney General
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
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Temmy Wise v. Commonwealth of Kentucky
Combined Opinion