IMPORTANT NOTICE 

NOT TO BE PUBLISHED OPINION 

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED!'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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE 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 

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RENDERED: JUNE 11, 2015 

NOT TO BE PUBLISHED 

ovisuprrtnt &Turf of qfiritifttirltt [1:= 2014-SC-000659-TG Li LI Li 

(2013-CA-001732-MR) 

tvANC.24-caorrat_c 

TIMOTHY BRITTON APPELLANT 

ON APPEAL FROM HOPKINS CIRCUIT COURT 

V. HONORABLE JAMES CLAUD BRANTLEY, JUDGE 

NO. 12-CR-00204 

COMMONWEALTH OF KENTUCKY APPELLEE 

MEMORANDUM OPINION OF THE COURT 

AFFIRMING 

Timothy Britton pled guilty to numerous drug and robbery charges 

stemming from two indictments. Prior to sentencing, Britton filed a motion to 

withdraw his guilty plea, which the trial court denied. Following the plea 

agreement's recommendation, the court sentenced Britton to ten (10) years' 

imprisonment on the charges in each indictment, with terms to run 

consecutively for a total of twenty (20) years. On appeal, Britton makes two 

arguments: (1) that his guilty plea was not entered voluntarily or (2) that, in 

the alternative, the trial court abused its discretion when it denied his motion. 

For the following reasons, we affirm. 
I. BACKGROUND. 

A Hopkins County grand jury brought charges against Britton through 

two indictments, which were eventually merged. Under case number 12-CR151, Britton was charged with the felonies of manufacturing 

methamphetamine, possession of methamphetamine, possession of 

methamphetamine precursor, and possession of anhydrous ammonia with the 

intent to manufacture methamphetamine, as well as several misdemeanors. If 

convicted, Britton faced more than twenty (20) years in prison. Under case 

number 12-CR-204, Britton was charged with the felonies of manufacturing 

methamphetamine, sodomy in the first degree, three (3) counts of robbery in 

the first degree, robbery in the second degree, and burglary in the first degree, 

as well as the misdemeanors of possession of burglary tools and carrying a 

concealed deadly weapon. If convicted, Britton faced twenty to fifty (20-50) 

years or life in prison. 

Assisted by his attorney, Britton mediated both indictments with the 

Commonwealth before Special Judge David Jernigan on February 14, 2013. 

After several hours, the parties reached an agreement. Under 12-CR-151, 

Britton agreed to plead guilty to manufacturing methamphetamine, possession 

of methamphetamine, possession of methamphetamine precursor, and 

possession of anhydrous ammonia with the intent to manufacture 

methamphetamine. In exchange, the Commonwealth agreed to dismiss the 

misdemeanors and recommend a sentence of ten (10) years' imprisonment. 

Under 12-CR-204, Britton agreed to enter an Alford plea to manufacturing 

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methamphetamine, possession of burglary tools, carrying a concealed deadly 

weapon, and the amended charges of wanton endangerment in the first degree, 

burglary in the second degree, and four (4) charges of robbery in the second 

degree. The Commonwealth agreed to recommend a sentence of ten (10) years' 

imprisonment to run consecutively with the sentence under 12-CR-151 for a 

total of twenty (20) years. 

As part of the agreement, Britton would be eligible for parole after serving 

twenty percent (20%) of his sentence, rather than eighty-five percent (85%) if he 

were convicted of the original charges. Also, because the Commonwealth 

agreed to dismiss the sodomy charge, Britton would not be required to register 

as a sex offender. 

That same day, Britton entered his plea of guilty before the trial court 

and agreed under oath that: his participation in the mediation was voluntary 

and he did not feel coerced, threatened, or forced to participate; he believed the 

process was fair and he was treated fairly by all parties to the mediation; and 

he had a sufficient opportunity to discuss his options with his attorney during 

mediation. Britton's attorney stated that: he had explained the elements of all 

the charges and potential defenses to Britton; Britton understood his rights; 

and the plea was consistent with his advice. The Commonwealth then read the 

combined plea agreement into the record. 

The trial court proceeded to conduct a Boykin colloquy, during which 

Britton stated that: he was forty-three (43) years old; he had an eleventh (11th) 

grade education; he had never been treated for a mental illness; he was not 

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under the influence of alcohol or any other drug; and his judgment was not 

impaired in any way. Based on the preceding, the trial court found Britton 

mentally competent to enter the plea. Britton agreed that: he understood the 

nature and consequences of all the charges and that by pleading guilty the trial 

court, not a jury, would set his sentence; he had been afforded all the time he 

needed to discuss his case with his attorney and that he had disclosed 

everything that might be relevant to any defense. Britton did not make any 

complaints about his attorney. 

In regard to 12-CR-151, Britton acknowledged that he understood the 

Commonwealth's evidence in support of the charges, and he admitted that he 

engaged in the charged conduct. With respect to 12-CR-204, Britton stated he 

understood the meaning and significance of an Alford plea. Finally, Britton 

agreed that: by pleading guilty he was waiving his right to a jury trial and his 

right to appeal; no threats or promises had been made to him causing him to 

plead guilty; and his plea was being made willingly, freely, and voluntarily. 

• With the assistance of his attorney, Britton reviewed all the plea forms and 

signed each of them. The trial court accepted Britton's guilty plea and found 

that the plea had been entered willingly, freely, and voluntarily and that Britton 

made a knowing and intelligent waiver of his rights. 

Almost two and a half months later and prior to sentencing, Britton filed 

a motion to withdraw his guilty plea in case number 12-CR-204. The trial 

court held a hearing on the motion on June 25, 2013. During the hearing, 

Britton argued he entered the plea involuntarily because of the nature of the 

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merged indictments. The trial court denied the motion to withdraw the guilty 

plea and ultimately sentenced Britton to the aggregate agreed to sentence of 20 

years' imprisonment. 

II. ANALYSIS. 

As noted above, Britton raises two arguments on appeal. We address 

each separately below. 

A. The Trial Court Did Not Err When It Found Britton's Guilty Plea Was 

Entered Voluntarily. 

A trial court may accept a guilty plea upon a determination, on the 

record, that the plea was voluntarily and intelligently made, "with sufficient 

awareness of the relevant circumstances and likely consequences." Porter v. 

Commonwealth, 394 S.W.3d 382, 385 (Ky. 2011) (quoting Brady v. Maryland, 

373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)); RCr 8.08. Prior to 

sentencing, when a defendant moves to withdraw his or her guilty plea, the 

court must hold a hearing to determine whether the plea was entered 

voluntarily. Porter, 394 S.W.3d at 385. If the court finds the plea was 

involuntary, it has no discretion and must grant the motion to withdraw. Id. at 

385-86. However, if the trial court determines the plea was voluntary, it may 

deny the motion to withdraw according to its discretion. Id. 

When determining whether a guilty plea is voluntary, intelligent and 

made with sufficient awareness, the trial court considers the totality of the 

circumstances surrounding the plea. Bronk v. Commonwealth, 58 S.W.3d 482 

(Ky. 2001). Thus, the trial court is in the best position to make this inherently 

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factual inquiry which requires considering the defendant's demeanor, 

background and experience, as well as, any indication of "reluctance, 

misunderstanding, involuntariness, or incompetence to plead guilty." Id. at 

487. Sworn declarations by the defendant in open court that his or her guilty 

plea is made voluntarily are not conclusive, but they do "'carry a strong 

presumption of verity."' Johnson v. Commonwealth, 412 S.W.3d 157, 168 (Ky. 

2013) (quoting Edmonds v. Commonwealth, 189 S.W.3d 558, 569 (Ky. 2006)). 

Accordingly, an appellate court reviews a trial court's finding regarding 

voluntariness for clear error, that is, whether the determination was supported 

by substantial evidence. Porter, 394 S.W.3d at 386. 

In this case, the trial court's finding of voluntariness is supported by 

substantial evidence. The trial court placed Britton under oath and, in open 

court and on the record, conducted a thorough exam of both Britton and his 

attorney to determine the voluntariness of Britton's plea. Britton admitted that 

he understood the nature of all the charges, the potential defenses, and the 

result of his plea of guilty; he made a full and knowing waiver of his rights; and 

he agreed that the plea was being made willingly, freely, and voluntarily and 

that it was not a product of threats or promises. Britton indicated that he had 

sufficient time to discuss his case with his attorney and had no complaints 

with his representation. Britton's attorney submitted to the court that Britton 

understood his rights and that a guilty plea was consistent with his advice. 

Moreover, the trial court specifically explained the difference between the two 

indictments and between the standard guilty plea and the Alford plea. Finally, 

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the court went beyond the Boykin requirements when it inquired into the 

mediation process. As noted above, Britton agreed that his participation in 

mediation was voluntary and that he believed the process and negotiations 

were fair. Because substantial evidence exists to support the trial court's 

finding of voluntariness, no clear error exists. 

B. The Trial Court Did Not Abuse Its Discretion When It Denied 

Britton's Motion To Withdraw Guilty Plea. 

Despite finding that a guilty plea is voluntarily entered, "[a]t any time 

before judgment the court may permit the plea of guilty or guilty but mentally 

ill, to be withdrawn and a plea of not guilty substituted." RCr 8.10; 

Rodriguez v. Commonwealth, 87 S.W.3d 8, 10 (Ky. 2002) (emphasis added). It 

is well established that an appellate court reviews a trial court's ruling on a 

motion to withdraw for abuse of discretion or whether it was arbitrary, 

unreasonable, unfair, or unsupported by sound legal principles. Porter, 394 

S.W.3d at 386; Edmonds, 189 S.W.3d at 570. 

Here, the trial court did not abuse its discretion when it denied Britton's 

motion to withdraw. The trial court properly held a hearing and considered 

written and oral arguments from Britton and the Commonwealth. The trial 

court reviewed the record and specifically recalled Britton's voluntary plea 

affirmations. Moreover, the agreement was freely negotiated and fair to Britton 

for three reasons: (1) he received a sentence of twenty (20) years' imprisonment 

instead of the life sentence he could have received; (2) he reduced his parole 

eligibility from eighty-five percent (85%) to twenty percent (20%); and (3) he will 

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not be required to register as a sex offender. The denial of Britton's Motion to 

Withdraw Guilty Plea was reasonable, fair, and supported by sound legal 

principles. 

While Britton acknowledges the abuse of discretion standard, he also 

submits that this court should consider the federal approach. Federal Rule of 

Criminal Procedure 11(d) allows for the withdrawal of a guilty plea upon a 

showing by the defendant of any "fair and just reason." This Court has 

mentioned this rule twice before; however, we have declined to adopt it in our 

criminal rules.' Furthermore, our abuse of discretion standard takes into 

account the fairness and reasonableness of the trial court's decision making. 

Moreover, Britton unsuccessfully articulated this argument in his brief when 

he set out the standard but then failed to specifically identify any fair and just 

reason other than the lack of voluntariness for withdrawing his guilty plea. 

Even if we assume for the sake of completeness that Britton had argued 

here as he argued before the trial court, we would not be persuaded. In his 

original Motion to Withdraw Guilty Plea, Britton argued that his plea under 12- 

CR-204 was entered involuntarily because, during the mediation, the 

Commonwealth would only accept a "package deal." Britton claimed that he 

was ready and willing to plead guilty to 12-CR-151 but that he wanted to take 

12-CR-204 to trial. However, the Commonwealth would only enter into a plea 

'In Bowman v. Commonwealth, No. 2005-SC-000234-TG, 2006 WL 141586, at 

*9 (Ky. Jan. 19, 2006), Justice Scott, in an unpublished dissenting opinion, advocated 

for the use of this approach when a reviewing court considers the totality of 

circumstances surrounding a guilty plea. In Commonwealth v. Pridham, 394 S.W.3d 

867, 885 (Ky. 2012), the defendant made a similar argument, but this Court declined 

to address it because the issue was not properly preserved. 

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agreement if Britton pled guilty to charges in both indictments. Britton argued 

that this negotiation tactic was coercive and led to an involuntary plea. 

It is undisputed that a defendant has an absolute right to 

unconditionally plead guilty to crimes charged in an indictment. 

Commonwealth v. Corey, 826 S.W.2d 319, 321 (Ky. 1992). But no defendant 

has a constitutional right to plea bargain; the prosecutor may engage in plea 

bargaining or not in his sole discretion. Commonwealth v. Reyes, 764 S.W.2d 

62, 64 (Ky. 1989). Because no duty to bargain exists, the Commonwealth is 

free to make an offer and the defendant is free to accept or reject that offer. 

Should either party dislike the proposed agreement, the defendant or the 

Commonwealth may reject it and proceed to trial. 

Here, the trial court properly summed up Britton's argument when it 

asked, "[w]hat he wants to do is take advantage of a portion of the deal and 

disregard the rest of it?" Britton was attempting to withdraw half of the plea 

bargain. He had the right to plead guilty to any and all of the charges against 

him, but he did not have the right to accept the Commonwealth's 

recommended sentence unless he accepted the entire bargain. Furthermore, 

offering a "package deal" of this type is not unreasonable or coercive. It is 

common practice for the Commonwealth to resolve multiple indictments or 

charges in two or more counties. See Goldsmith v. Commonwealth, 363 S.W.3d 

330, 331 (Ky. 2012). 

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III. CONCLUSION. 

For the foregoing reasons, we affirm the trial court's denial of Britton's 

motion to withdraw his guilty plea. 

All sitting. All concur. 

COUNSEL FOR APPELLANT: 

Kathleen Kallaher Schmidt 

Karen Shuff Maurer 

Department of Public Advocacy 

COUNSEL FOR APPELLEE: 

Jack Conway 

Attorney General of Kentucky 

Kenneth Wayne Riggs 

Assistant Attorney General 

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