# IMPORTANT NOTICE NOTTO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOTTO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),

·THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE

CITED OR,USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY.COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, ·. RENDERED AFTER JANUARY 1, 2003, MAY BE CITED**~OR** 

## CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT·WOULD ADEQUATELY·ADDRESS THE ISSUE

. 

## . BEFORE THE COURT. OPINIONS CITED FOR CONS.IDERATION .BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALO.NG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.RENDERED: SEPTEMBER 28, 2017 NOTTO BE PUBLISHED

20l 7-SC-000300-TG 

### y**~** (2016-CA-001731-MR)"

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DARYL WAYNE LIGGETT



### v. ON APPEAL FROM KENTON CIRCUIT COURT HONORABLE KATHY LAPE, JUDGE NO. 15-CR-00741
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT AFFIRMING
. APPELLANT

APPELLEE

Daryl Wayne Liggett appeals as a matter ofrightI from a circuit court judgment convicting him offirst-degree sodomy and sentencinghim to 25

. . years' imprisonment. The trial court entered thisjudgmentupon Liggett's guilty plea and imposed the sentence consistentwith the plea**.bargai~** agreement between Liggett and the Commonwealth. Liggett now argues that the trial court erred when it denied his motion made b,efore.final sentencing to set aside his guilty plea as involuntarily made. We affirm thejudgmentbecause we hold that the trial court's findings that Liggett's guilty plea was knowing, voluntary, and intelligent are supported by substantial evidence, and thus not clearly

I Ky. Const. § 110(2)(b).erroneous, and that the trial court did notabuse its discretion in denying Liggett's motion to withdrawhis guilty plea.
I. FACTUAL AND PROCEDURAL BACKGROUND. . A grandjuryindicted Liggett for one count offirst-degree sodomy ofa victim under 12 years ofage. Initially, the court appointed counsel to represent Liggett, and Liggett pleaded not guilty to the charge. In exchange for Liggett's guiltyplea.to the charges in the indictment, the Commonwealth agreed to recommend 25 years in prison and further agreed not to seek indictment on other potential changes arising out ofthe underlying facts. Based on the. charged offense, Liggett faced 20 to 50 years, or life, in prison.2 In his motion to enter a guilty plea, Liggett declared in writing the following: I declare my ple_a of"GUILTY" is freely, knowingly, intelligently and voluntarily made; that l have beenrepresented by counsel; that my

.attorney has fully explained my constitutional rights to me, as well as the charges against me and any defenses to them; and that I understand the nature ofthis proceeding and all matters contained in this document. -, Before accepting Liggett's guilty plea, the trial court conducted a 

### Boykin hearing3, canvassing Liggett's understanding ofthe proceedings: During this colloquy, Liggett stated**und~r** oath: he has a 12thgrade education and can read and write; hisjudgmentwas not impaired; he understood his
.

. . constitutiQnal rights; he fully understood whatwas happening in his case; he

2 KRS 510.070(2); KRS 532.060(2)(a)

. . 3 Boykin v. Alabama, 395 U.S. 23.8 (1969). 2had sufficient time to_discuss the pleawith counsel; he had no C()mplaints about counsel's representation; and that he was not coerced into pleading guilty, hutwas doing· so ofhis own free will because he was, in fact, guilty. In the pre-sentence investigation report (PSI) prepared after the trial court accepted the guilty plea, Liggett took responsibility for the crime arid stated that the sentence_contemplated by the plea bargain agreement was fair, in addition to indicatingthat he fully understood, his guilty_plea. At the conclusion ofthe 

### BoykincoUoquy, the trial court accepted Liggett's guilty plea, finding it to be knowingly, voluntarily,.and inteiligently made. Before final sentencing, "Liggett retained new counsel. New counsel

. . . moved to withdraw the guilty plea and**supporte~** the motion with an affidavit from Liggett statingvarious deficie_ncies on the part offormer counsel, including: (1) that he [Liggett] was not provided adequate representation on the matter;· · · . (2) that he was hot afforded the opportunity to review his discovery with his attorney until the day he pled guilty; (3) that he and his attorney did not spend enough time on reviewing and explaininghis discovery to fully understand his case; (4) that his attorney did not provide him with**a~vice** when he requested her advice; · . · · (5) thathe was unable to reach his attorney on the phone,_nor could he schedule a meetingwith her; (6) that his attorneyrdid not attend all court appearances, instead another attorney that·was not adequately**advi~ed** ofhis case filled in several times; and (7) that his guilty plea was not made knowingly and intelligently; as required. The trial court conducted a hearing on Liggett's motionto withdraw the guilty'plea, allowing both sides to present arguments and denied the motion. 3The trial court supported its denial byrecalling'Liggett's previous statements made in open court and his previously signed document, in addition to statements attributedto him in his PSI, in which Liggett took responsibility for

. the criine and stated that his sentence was fair.·All these facts, the trial**cou~t**

found, refuted Liggett's more recent allegatfons concerning the validity ofhis guilty plea. Later, the trial court sentenced Liggett to 25 years imprisonment in accordance with the plea agreement and enteredjudgment acco.rdingly. II. ANALY'.SIS. A. Standard ofReview. An appellate courtreviews the trial court's denial of**~1**motion to withdraw
a guilty**p~ea** in a two-step.process. First, a trial court's determination as to th.e voluntariness ofa pleais reviewed for clear error. 4 A decision that is supported by substantial.evidence is not clearly erroneous.s Second, once.a court determines a plea to be voluntary, a trial court's refusal to allow a voluntary plea to be withdrawn is**review~d** for an abuse ofdiscretion.6 "A trial court abuses its discretion when itrenders a decision which is·arbitracy, unreasonable, unfair, orunsupported by sound legal principles."7

4 Rigdonv. Commonwealth, 144 S.W.3d 283, 288 (Ky. App. 2004) (citingBronk.v. Commonwealth, 58 S.W.3d 482, 489 (Ky. 2001) (Cooper, J., concurring)). s Rigdon, i44 S.W.3dat288 (citingBaltimore v. Commonwealth, 119 S.W
..3d 532 (Ky. App. 2003)). 6 Rigdon, 144 S.W.3d at 288 (citing Bronk, 58 S.W,3d at 487). These cases interpret Kentucky Rule of Criminal Procedure 8.10 to afford abuse. ofdiscretion review ofa trial court's decision. RCr 

### a.10 states, "At any time beforejudgment the court may permit the plea of guilty
...to be withdrawn and a plea ofnot guilty substituted." (emphasis added). 7 Rigdon, 144 S.W.3d at 288 (citing Goodyear Tlre & Rubber Co. v. Thompson, 11 S.W.3d 575, 58.1 (Ky. 2000)). · 4

### B. General Law. "A guiltypleais valid onlywhen itis entered intelligently and voluntarily."8 "In determining the validity ofguilty' pleas in criminal cases, the plea must represent a voluntary andintelligent choice among the alternative
course ofaction open to the defendant."9 "Whether a guilty plea is voluntarily given is to be determined from the totality ofthe circumstances surrounding it."10 "The trial .court is in the bestposition to determine the totality.of circumstances surrounding a guilty plea." 11 Ifthe court finds a-guilty plea.to be involuntary, the motion to withdraw mustbe granted; however, ifa plea is

. . found to be voluntary, it is then within the trial court's discretion to permit its withdrawaJ.12 

### "A defendantwho expresslyrepresents in open court that his guilty plea is voluntary may not ordinarilyrepudfate his statements to the sentencingjudge."13 "Solemn·declarations in open.court carry a strong presumption ofverity."14 Because Liggett alleged ineffective assistan_ce ofcounsel, we in1:J.st "consider the totality ofcircumstances surroundingthe guilty plea and**j~tapose** the presumption ofvoluntariness inherent.in a proper plea colloquy

s Bronk, 58 S.W.3d.at 486. 9 Centers v. Commonweal.th, 799 S.W.2d 51, 54 (Ky. App. 1990) (citing North Carolina v. Alford, 400 U.S. 25 (1970) and Sparks v. Commonwealth, 721 S.W.2d 726 (Ky. App. 1986)). 10 Rigdon, 144 S.W.3d at ·287-88 (citingRodriguez v. Commonwealth, 87 S.W.3d 8 (Ky. 2002)). 11 Id.
. .**~K** . . 13Edmonds v. Commonwealth, 189 S.W.3d 558, 568 (Ky. 2006) (quoting U.S. v. Todaro, 982 F.2d 1025, 1030 (6th Cir. 1993)).
. · 14 Centers, 799**S.W.~d** at 54 (citing Bla,ckledge v. Allison,'431 U.S. 63 (1997)). 5with a Strickland v. Washington 15 inquiry into the performance ofcounsel."16 Under this inquiry, Liggett must demonstrate: (1) that counsel made errors so serious that**couns~l's** performance fell outside the wide range ofprofessionally competent assistance; and (2) that the deficient performance so seriously affected the outcome ofthe pleaproce.ss that, but for the errors ofcounsel, there is a reasonable probabilitythat·the defendant would not have pleadedguilty, butwould hav.e insisted on going to trial.17 "The fact that counsel consulted onlybriefly with his client before his.

. . client eritered a guilty plea does not, absent more, establish ineffective assistance ofcounsel; itis only a factor to be considered in the tot8.Iity of

.. circumstances."18 While limited communications between an attorney and client are far from ideal, "such situations are notuncommnn."19 "A

### ~onclusory allegation tO the effect that absent the error the.

. . . . movant would have insisted**upo~** a trial is not enough" to demonstrate prejudice.20 Liggett "must allege facts that, ifproven, would ·support a ·conclusion that the decision to reject the plea bargain and go to trial would have been rational" under the circumsta,nces.21. 

### C. The Trial Court's Ruling was not·clearly Erroneous, nor did it Abuse its Discretion. The trial court's finding thatLiggett entered his pleavoluntarily, ·knowingly, and intelligentlyfinds much supportin the record. As stated, the

15 466 U.S. 668 (1984). 16 Bronk, 58 S.W.3d at 486. 17 Bronk, 58 S.W.3d at 486-87 (citing Sparks, 721 S.W.2d at 727-28). ia Rigdon, 144 S.W.3d at 290 (citing Jones v. Parke, 734 F.2d 1142, 1146-47 (6th Cir. 1984)). i9 Rigdon, 144 S.W.3d at 291. 20 Stiger v. Commonwealth, 381 S.W
..3d 230, 237 (Ky. 2012). 21 Id. 6trial court conducted a colloquy in open courtwith Liggett. During this colloquy, Liggett confirmed that he was intellectually capable of**u~derstanding** and did .understand the charge against him, his right to contest his guilt on this charge, and the consequences ofhis decision to plead guilty. And the latermade statements attributed to him in the PSI further supported the validity of the guilty pleahe made under oath duringthe plea colloquy. Liggett's affidavit is the only evidence he submitted to support his effort 

### " to setaside the guilt:Y, plea. Even viewing Liggett's allegations in the light most favorable to him, the totality ofthe circumstances favors the trial court's finding that Liggett knowingly, voluntarily, and intelligently entered his guilty plea. Liggett's statements in open court, his statements in his PSI, and the written motion to enter the plea not only directly refute the conclusory allegations he made in his**affidavit~** but also substantially outweigh those allegations, includinghis ineffective assistance ofcounsel allegations. Liggett presents no other evidence in support ofhis allegations, thus failing to meet his burden. Without more than conclusory allegations supported by Liggett's affidavit, we cannot speculate.as to whether Liggett's-allegations amount to such

# adeficient performance on the part ofcounsel so as to classify these actions as "outside the range ofprofessionally competent."22**Additionally~** nothing Liggett presented undermines the strength ofthe**tri~l** court's factual findings regarding the voluntary, knowin·g, and intelligent nature ofthe guilty

22 Strickland, 466 U.S. at 690. 7 .plea, nor does· it demonstrate a reasonable probabilitythat, but for counsel's alleged errors, he would not have pleaded guilty and would have insiste.d on going to trial
.

.. Liggett's plea bargain resulted in imposition ofa sentence of imprisonmentthatwas halfthe length ofthe sentepce that he could have received under the law. The bargain included an agreement by the Commonwealth to forego seekingindictmentfor additional serious charges with substantial ranges ofpunishment. Liggett thus did not meet his burden of showing that a**rat~onal** individual would have rather faced this possibility than accept the guilty plea offer. The question is whether the trial court's findings are supported by

. - substantial eviqence.; ifthey.are, the trial court did not commit clear error, and its rulirig must be upheld. Because the trial court's findings are supported by substantial evidence, as state_d :above, the trial court's finding that Liggett's. guilty plea was knowing, intelligent, and voluntaryis not clearly erroneous. Lastly, the_ trial court did not abuse its discretion in denying Liggett's · motion to withdraw his guilty plea. Nothing about the trial court's decision renders it arbitrary, unreasonable, unfair, orunsupported by sound legal principles.23 Stated differently, nothing in the record**c~ls** into question the reasonableness ofthe trialjudge's decision to deny Liggett's motion. The ·judge's decision in this case to deny the motion did not amount to an abuse of

23 Rigdon, 144 S.W.3d at 288 (citing Goodyear Tire, 11 S.W.3d at 581). 8·discretion because itwas reasonable.to do so, based on the totality ofthe record. III. CONCLUSION. We affirm thejudgmentbecause"we conclude that substantial evidence suppoi:-ted the trial court's ruling regarding the voluntariness ofthe guilty plea, and thus the·trial c.ourt committed no clear error on the fact, and because

## the trial court did not abuse its discretion.in denying Liggett's motion·to withdraw his ple.a. All sitting. All concur.

· COUNSEL FORAPPELLANT:

DarrellA. Cox Berger & Cox COUNSEL FORAPPELLEE: Andy Beshear Attorney General ofKentucky John.PaulVaro
. AssistantAttorney General ·

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