Johnson v. Commonwealth

Dissenting Opinion by

Justice KELLER.

I respectfully dissent from the majority opinion, and I would vacate Appellant’s guilty pleas, reverse the judgment of the Floyd Circuit Court, and remand these indictments to the trial court for further proceedings because the record in this case is silent as to whether Appellant knowingly and voluntarily waived two (2) rights guaranteed him by the United States Constitution — i.e., his right to trial by jury and his right against self-incrimination.

More than thirty (30) years ago, in Boykin v. Alabama,1 the United States Supreme Court reversed Boykin’s criminal convictions after finding that “[i]t was error, plain on the face of the record, for the trial judge to accept petitioner’s guilty plea without an affirmative showing that it was intelligent and voluntary.”2 In doing so, the Court succinctly identified what we now know as a defendant’s “Boykin rights” and held that a valid guilty plea requires an affirmative, on-the-record waiver of these important rights:

Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Second, is the right to trial by jury. Third is the right to confront one’s accusers. We cannot presume a waiver of these three important federal rights from a silent record.3

Boykin further explains that the serious consequences of a guilty plea require that the record reflect the waiver:

What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to makes sure he has a full understanding of what the plea connotes and of its consequences. When the judge discharges that function, he leaves a record adequate for any review that may be later sought and forestalls the spinoff of collateral proceedings that seek to probe murky memories.4

In the case at bar, the trial court did not require Appellant to complete a written guilty plea form,5 and thus the only evidence in this record as to Appellant’s waiver of his rights appears in the transcript of *700the guilty plea colloquy between the trial court and Appellant. During that colloquy, the trial court made an abbreviated inquiry into Appellant’s understanding of the Constitutional rights that he was waiving with his plea of guilty:

Trial Court: Mr. Johnson, your counsel has indicated to the Court that you wish to change your previously entered not guilty pleas on the indictments which have been issued against you. I want to inform you, Sir, at this time that if you do in fact change your pleas that you will be waiving certain rights guaranteed to you by the Constitution. Among the rights that you would be waiving, Sir, would be the right to a speedy and public trial; at which time you would be represented by counsel and counsel would be appointed for you if you could not afford to do so; and the right to require the Commonwealth to prove your guilt beyond a reasonable doubt. Do you understand that you would be waiving that right?
Defendant: Yes, Sir.
Trial Court: Do you likewise understand that you would be waiving the right to
confront and cross-examine any witnesses against you?
Defendant: Yeah.
Trial Court: Do you further understand that you would be waiving the right to present evidence in your own defense, including the right to subpoena witnesses at no cost to you if you could not afford to do so?
Defendant: Yes.

Although, in subsequent proceedings in this matter, the trial court indicated its belief that it “went a little ... farther than what was necessary in the taking of Mr. Johnson’s plea,” and suggested that it “went into excessive detail with [Mr. Johnson] concerning the entry of [his] plea ... [and] his Constitutional rights to a speedy trial and other Constitutional rights,” it appears that the plea colloquy covered just one (1) of the three (3) Boykin rights and failed even to mention the words “self-incrimination” or “jury.” Accordingly, the record here is silent as to whether Appellant waived his right to trial by jury6 or his right against self-incrimination, and the conspicuous silence as to these Boykin rights creates an invalid guilty plea.7 Ap*701pellant’s guilty plea may have been knowing and voluntary, but this Court cannot discern whether it was from the record before us. As a reviewing court, we have no way of knowing from a silent record whether Appellant knowingly and voluntarily waived his Boykin rights by entering a guilty plea, and I would thus reverse the judgment of the Floyd Circuit Court, vacate Appellant’s guilty pleas, and remand these indictments to the trial court for further proceedings.

COOPER and STUMBO, JJ„ join this dissenting opinion.

. 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

. Id. at 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274, 279.

. Id. at 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274, 279-280 (citations omitted and emphasis added).

. Id. at 395 U.S. 238, 243-244, 89 S.Ct. 1709, 1712-1713, 23 L.Ed.2d 274, 280 (citations omitted).

.Although the Rules of Criminal Procedure do not require a defendant to file a written petition to enter a guilty plea, our rules do require that certain Boykin rights be waived in writing, see RCr 9.26(1) ("Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the Commonwealth,” (emphasis added)), and written Motions to Enter Guilty Pleas are standard practice in most courts, see AOC Form No. 491. Perhaps the time has come to incorporate prevailing practice into our Rules of Criminal Procedure.

. I realize that the trial court mentioned "the right to a speedy and public trial,” during the plea colloquy, but this phrasing conspicuously fails to address Appellant’s waiver of his right to a jury trial. And, I am also aware that the previous appeal from this indictment in Commonwealth v. Johnson, Ky., 910 S.W.2d 229 (1995) illustrates that the issue of whether a jury or the trial judge would decide Appellant’s punishment was heavily litigated in this case. However, I would point out that although the motions, briefs, and other documents filed in the trial court and in this Court inevitably implicated Appellant’s right to a jury trial, those pleadings were filed by Appellant’s counsel, not Appellant himself, and the right to trial by jury is personal to the defendant. If the only Boykin right omitted during the trial court's plea colloquy was Appellant's right to trial by jury, I would likely vote to remand this case to the trial court for an evidentiary hearing to determine whether Appellant was cognizant of his right to trial by jury and consented to waiver of that right, see United States v. Garrett, 727 F.2d 1003 (11th Cir.1984). Here, however, the record is also silent as to Appellant’s waiver of his right against self-incrimination, and that error, standing alone, requires reversal.

. The inadequacy of the guilty plea colloquy in this case suggests to me that this Court should consider adoption of a new Rule of Criminal Procedure requiring a trial court to advise a defendant of the defendant's Boykin rights and to make a finding that the defendant has waived each of those rights before accepting a plea of guilty. Such a rule would constitute a "bookend” to RCr 3.05, which requires courts to caution the accused at his or her initial appearance before the court and to advise him or her of certain rights, and *701should help to avoid future omissions such as the ones that occurred here.