Covington v. Commonwealth

CUNNINGHAM, J.,

Dissenting:

I respectfully dissent from the opinion of the esteemed and highly respected majority as voiced through the excellent writing of Justice Venters.

There may have been an agreement in this case between the Commonwealth and Appellant’s counsel. But there was not a plea agreement as anticipated by RCr 8.10. I am afraid that our Court, in deeming it so, will bring confusion and disorientation into a practice which occurs frequently in our courts.

The following exchange occurred between Appellant’s counsel and the trial court during the plea colloquy:

THE COURT: Okay; and what’s your understanding of how he intends upon pleading today in reliance upon the Commonwealth’s offer?
MS. BELLEW: Judge, he intends to plead guilty today to all counts as charged. He understands that this is a blind plea, or an open plea to the Court, and that the Commonwealth has a recommendation in the case, but that will occur at sentencing.

During the plea colloquy, the trial judge made it clear to Appellant that, under the local rules, any plea entered on the day of trial would be a blind plea.3 Moreover, the trial judge further declared that “the Commonwealth is only making a recommendation at this point,” which the court later decided not to follow. The Commonwealth’s supposed recommendation of 20 years is never specified at the time of the plea. The trial court gave extensive reasons for not following the Commonwealth’s recommendation and sentencing Appellant to life in prison. One reason given was that the offenses for which Appellant was being sentenced had been committed only six days after his release from prison on one of three prior felonies.

Courts must have wide discretionary berth in controlling their dockets. It is not unusual for judges to refuse to accept plea agreements on the day of trial with juries waiting in the wings. This practice, however, does not preclude guilty pleas from being entered on the day of trial. Many defendants, if not most, will reconsider their options when a panel of fellow citizens is present and willing to pronounce judgment upon them.

It is the deficient defense lawyer indeed who will not ascertain — most likely in a casual manner — what the prosecutor will recommend if the Commonwealth is saved the trouble of a trial by the defendant pleading guilty. It is the rare prosecutor, and the rarer yet situation, where a plea will not still be welcomed. Thus, the recommendation is conveyed to the defense lawyer. That is, in a sense, an agreement. But it is not a plea agreement. To hold otherwise — as the majority does in this case — will place a chilling, if not freezing effect on this practice. From henceforth, and with this case a precedent, prosecutors may well be reluctant to make any recommendation in that situation. For if the court decides to sentence the defendant to more than recommended, then the whole day’s work — jury expenses and all — will go down the drain at sentencing when the defendant is allowed to withdraw the plea.

*819The local rules of the Bourbon Circuit Court also required that all plea agreements be in writing.4 This is a good rule, as this case graphically illustrates. But, here, it was not done. We do violence to the integrity and validity of local rule making, approved by our Chief Justice, by not upholding this requirement. I would go so far as to mandate such by judicial decree — a requirement no doubt already carried out in most all plea agreements across the state.

The trial judge in this case went to great pains to explain to Appellant that there was no plea agreement and he was not so bound. The fact that the Commonwealth’s Attorney changed his mind as to his recommendation, after Appellant sought to withdraw his plea, has no bearing upon the judge since RCR 8.10 was inapplicable. Therefore, the trial court did not abuse its discretion in denying Appellant’s motion to withdraw his guilty plea.

I would affirm. SCOTT and SCHRODER, JJ., join.

. See KY BCWC XXIII (Pretrial Conferences in Criminal Cases) and KY BCWC XXIV (Trials in Criminal Cases).

. See KY BCWC Rule XXV (Plea Agreements).