RENDERED: JUNE 24, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0608-MR

VICTOR MARRERO-CHARLEMAN APPELLANT 

v. 

APPEAL FROM KENTON CIRCUIT COURT

HONORABLE PATRICIA M. SUMME, JUDGE

ACTION NO. 18-CR-01172 

COMMONWEALTH OF KENTUCKY APPELLEE 

AND

NO. 2020-CA-0763-MR

VICTOR MARRERO-CHARLEMAN APPELLANT 

v. 

APPEAL FROM KENTON CIRCUIT COURT

HONORABLE GREGORY M. BARTLETT, JUDGE

ACTION NO. 18-CR-00749 

COMMONWEALTH OF KENTUCKY APPELLEE 

AND
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NO. 2020-CA-0765-MR

VICTOR MARRERO-CHARLEMAN APPELLANT 

v. 

APPEAL FROM KENTON CIRCUIT COURT

HONORABLE GREGORY M. BARTLETT, JUDGE

ACTION NO. 16-CR-01147 

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: LAMBERT, MCNEILL, AND TAYLOR, JUDGES.

MCNEILL, JUDGE: Victor Marrero-Charleman1appeals from the denial of his 

motion to withdraw his guilty plea in three circuit court cases. After examining the 

record and applicable law, we affirm. 

Relevant Factual and Procedural History

In December 2016, Marrero was indicted for tampering with physical 

evidence. Kenton Circuit Court Case No. 16-CR-01147. That case was assigned 

to Judge Gregory Bartlett. In December 2017, Marrero and the Commonwealth 

1 We will refer to the Appellant as “Marrero” as that is the lone surname he used when signing 

documents in circuit court. 
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entered into a plea agreement, pursuant to which he was to receive pretrial 

diversion. The court accepted the guilty plea and released Marrero on his own 

recognizance pending sentencing.2 But when Marrero failed to appear for 

sentencing he was indicted for first-degree bail jumping. Kenton Circuit Court 

Case No. 18-CR-00749. That case also was assigned to Judge Bartlett.

While those charges were pending, in September 2018, Marrero was 

indicted for two counts of robbery in the first degree and one count of tampering 

with physical evidence. Kenton Circuit Court Case No. 18-CR-01172. That case 

was assigned to Judge Patricia Summe. 

Thus, though Marrero had the same attorney in all three cases, the 

charges proceeded along separate tracks in separate courtrooms until July 2019, 

when he entered into a package, comprehensive plea agreement with the 

Commonwealth. The agreement recommended that Marrero receive a total 

sentence of eighteen years (ten total years for the charges before Judge Summe, 

consecutive to eight total years for the charges before Judge Bartlett). Judge 

Bartlett and Judge Summe held separate guilty plea hearings, after which each

accepted Marrero’s guilty plea. 

2

“When a defendant is granted pretrial diversion on a felony conviction, a sentence for that 

conviction is not imposed, if ever, unless and until the pretrial diversion agreement is voided.”

Commonwealth v. Derringer, 386 S.W.3d 123, 126 (Ky. 2012). Thus, though styled a 

“sentencing,” presumably the proceeding was meant to allow the court to approve Marrero being 

placed on pretrial diversion.
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However, before he was sentenced by either judge, Marrero indicated 

he wished to withdraw his guilty pleas. In November 2019, via conflict counsel, 

Marrero filed a written motion to withdraw his guilty plea in all three cases. The 

gist of his motion was an assertion that his plea was involuntary because his 

appointed counsel, Ashley Graham, had not communicated adequately, provided 

adequate discovery, or filed motions Marrero wished her to file. 

In January 2020, Judge Summe held a thorough, roughly three-hourlong hearing on Marrero’s motion to withdraw his guilty plea at which facts and 

circumstances pertaining to the charges pending before both Judge Summe and 

Judge Bartlett were discussed. Marrero testified that Graham had not provided him 

with sufficient paper discovery. Instead, she provided him with DVDs which 

supposedly contained discovery, but he could not get most of them to play on the 

jail’s equipment. He also testified that Graham had not met often with him and 

had not filed motions he requested, such as a motion to suppress. 

Graham also testified. She admitted she had not given Marrero all of 

the “paper” discovery, such as thousands of pages from Facebook. But she 

testified that she had provided him DVDs containing discovery to view at the jail 

and she believed those discs were functional. She also testified that Marrero had 

refused to meet with her at least once when she went to the jail to go over the 
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discovery with him. According to Graham, she did not file the motions Marrero 

requested because she did not believe there were proper grounds to do so. 

A little over two months later, Judge Summe issued a meticulous 

order denying Marrero’s motion to withdraw his guilty plea as to the charges 

pending in her courtroom. The gist of Judge Summe’s order was that Graham was 

more credible than Marrero, that Marrero had not shown his plea was involuntary,

and that the court did not believe it appropriate to let him withdraw his voluntary 

plea. Soon thereafter, Judge Summe sentenced Marrero, via video, in accordance 

with the sentence called for in the plea agreement. Marrero appealed. Case No. 

2020-CA-0608-MR (for Kenton Circuit Court Case No. 18-CR-01172).

Meanwhile, the motion to withdraw the guilty plea in the cases 

pending before Judge Bartlett proceeded differently. Judge Bartlett held a very 

brief, non-evidentiary hearing on Marrero’s motion to withdraw his guilty plea on 

March 9, 2020 – after Judge Summe had held her evidentiary hearing but before 

her written decision was issued. However, when Judge Bartlett held his hearing

everyone was aware that Judge Summe was likely to deny Marrero’s motion to 

withdraw because she had indicated as much at a status hearing in February 2020. 

At the hearing, Marrero’s counsel reminded Judge Bartlett that she 

and the Commonwealth had asked him via email to view Judge Summe’s hearing 
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instead of conducting his own,

3

and Judge Bartlett indicated he had granted their 

request and had watched Judge Summe’s hearing. Judge Bartlett orally denied 

Marrero’s motion to withdraw his plea, stating “based upon that [his viewing of 

Judge Summe’s hearing] and my own record in these cases, the motion to 

withdraw plea will be denied in each case.” Video Record, 3/9/20 at 3:26:34 et 

seq. 

Marrero’s counsel soon thereafter asked Judge Bartlett if he intended 

to issue a written order, and Judge Bartlett responded, “Well, if you need one, yes.” 

Id. at 3:26:54 et seq. Counsel then vaguely said, “I’m going to presume the answer 

to that question is yes, unless you were joining Judge Summe’s findings, which I 

know you haven’t seen yet because she’s not finished with hers yet.” Id. at 3:26:59 

et seq. Judge Bartlett eventually responded, “If you want some brief written order, 

it’ll be entered.” Id. at 3:27:11 et seq. Marrero’s counsel requested nothing else. 

3 A trial court should hold an evidentiary hearing before resolving a non-frivolous motion to 

withdraw an allegedly involuntary guilty plea. See, e.g., Zapata v. Commonwealth, 516 S.W.3d 

799, 801 (Ky. 2017). But the Kenton Circuit Court, via Judge Summe, conducted a detailed 

hearing on Marrero’s motion to withdraw and Marrero has pointed to no additional information 

he wished to present. Indeed, it is difficult to discern what practical purpose a redundant hearing 

before Judge Bartlett would have served. Moreover, a party generally cannot receive appellate 

relief for an act a trial court performed at the party’s request, Tackett v. Commonwealth, 445 

S.W.3d 20, 29 (Ky. 2014), which is what occurred here. In short, we strongly disagree that 

Judge Bartlett somehow erred by not conducting his own hearing. 
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Despite his statement, Judge Bartlett did not issue a written order 

denying Marrero’s motion to withdraw his guilty plea before sentencing Marrero, 

via video, in accordance with the plea agreement in May 2020. Marrero appealed. 

Case Nos. 2020-CA-0763-MR (for Kenton Circuit Court Case No. 18-CR-00749) 

and 2020-CA-0765-MR (for Kenton Circuit Court Case No. 16-CR-01147). We 

ordered the three appeals to be consolidated and resolve them all in this combined 

Opinion.

Analysis

Marrero’s main argument is that both judges erred in denying his 

motion to withdraw his guilty plea. He also raises a fatally underdeveloped

argument that Judge Bartlett failed to make adequate findings. Finally, Marrero 

argues that both judges erred in sentencing him via video conference. For judicial 

convenience, we will address Marrero’s arguments in a different order than he 

presents them to us.

4

No Error in Sentencing Via Video

We begin with Marrero’s argument that it was improper to sentence 

him via videoconference. We disagree.

4 We have carefully considered the parties’ briefs but have concluded any arguments in them

which are not discussed in this Opinion are irrelevant, redundant, or otherwise without merit.
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When Marrero was sentenced, the COVID-19 pandemic had begun. 

No vaccines were available. Thus, our Supreme Court issued various 

administrative orders to help courts remain open as necessary while trying to best 

ensure the safety of court personnel, attorneys, and litigants. For example, Section 

1 of Order 2020-13 cancelled all dockets, with some limited exceptions, from 

March 16, 2020 through April 24, 2020. https://kycourts.gov/Courts/SupremeCourt/Supreme%20Court%20Orders/202013.pdf (last visited Apr. 26, 2022). 

Similarly, Order 2020-16 cancelled most dockets and closed judicial facilities to

in-person services during April 2020. https://kycourts.gov/Courts/SupremeCourt/Supreme%20Court%20Orders/202016.pdf (last visited Apr. 26, 2022).

As had Order 2020-13, Order 2020-16 also stated in Section 1 that “Judges must 

use available telephonic and video technology to conduct all hearings, unless the 

parties are unable to participate remotely.” Id. Those were the dire circumstances 

present when Marrero was sentenced via video. 

Of course, in a perfect world, sentencings should be done face-to-face. 

But the world was decidedly imperfect when Marrero was sentenced. Under the 

circumstances here, neither Judge Bartlett nor Judge Summe erred by following 

Kentucky’s highest court’s mandate for trial courts to conduct proceedings 

remotely to the greatest extent possible. 
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Moreover, Marrero points to absolutely no concrete prejudice he 

suffered from being sentenced via video. For example, there were no technical 

difficulties which prevented any participant from hearing or seeing any other 

participant. Thus, these cases are materially distinguishable from K.D.H. v. 

Cabinet for Health and Family Services, 630 S.W.3d 729, 740-41 (Ky. App. 2021), 

in which we held that, despite the pandemic, it was improper to continue to 

conduct a hearing via video when technical difficulties led to the court being 

unable to hear testimony. 

Nonetheless, Marrero broadly contends he “had both a procedural and 

constitutional right to be personally present at all critical stages of his case.” 

Appellant’s brief, p. 16. For his procedural argument, Marrero cites Kentucky 

Rule of Criminal Procedure (RCr) 8.28(1), which provides in relevant part that 

“[t]he defendant shall be present at the arraignment, at every critical stage of the 

trial including . . . the imposition of the sentence.” For his constitutional argument, 

Marrero cites Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 105-06, 54 

S. Ct. 330, 332, 78 L. Ed. 674 (1934), overruled in part on other grounds by

Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964), in which the 

United States Supreme Court “assume[d]” that “in a prosecution for a felony the 

defendant has the privilege under the Fourteenth Amendment to be present in his 
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own person whenever his presence has a relation, reasonably substantial, to the 

fullness of his opportunity to defend against the charge.” 

Of course, Snyder is distinguishable as it was rendered long before 

technology permitted court proceedings to be reliably conducted via video. 

As Maryland v. Craig makes clear, the Confrontation Clause does not provide 

an “absolute right to a face-to-face meeting[.]” 497 U.S. 836, 844, 110 S. Ct. 

3157, 3163, 111 L. Ed. 2d 666 (1990). In Craig, the Supreme Court held that the 

right to confront witnesses did not always have to be satisfied by a physical and 

face-to-face confrontation when “denial of such confrontation is necessary to 

further an important public policy and only where the reliability of the testimony is 

otherwise assured.” Id. at 850, 110 S. Ct. at 3166 (citations omitted). In 

Commonwealth v. Willis, our Supreme Court noted that the United States Supreme 

Court had held that “the right to confront . . . is not absolute and may in 

appropriate cases be compromised to accommodate other legitimate interests in the 

criminal trial process.” 716 S.W.2d 224, 228 (Ky. 1986) (citing Chambers v. 

Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 1045, 35 L. Ed. 2d 297 (1973)).5

5 Marrero’s core arguments were also recently rejected by our Supreme Court, albeit in an 

unpublished opinion. See Gibson v. Commonwealth, No. 2020-SC-0250-MR, 2021 WL 3828558 

(Ky. Aug. 26, 2021). We believe it is directly on point and persuasive. See also Pouncy-Allen v. 

Commonwealth, No. 2020-CA-0717-MR, 2021 WL 2172937, at *3 (Ky. App. May 28, 2021) 

(“Pouncy-Allen was present at his sentencing hearing – albeit by means of Zoom. The cases 

upon which he relies are distinguishable and were decided long before we were faced with the 

unprecedented context of a pandemic. Indeed, some of the cases that he has cited were decided 

long before the advent of video-conferencing technology. Pouncy-Allen has failed to 
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Thus, we reject Marrero’s argument that it was improper to sentence

him via video.

No Remand for Additional Findings Required

We also reject Marrero’s fatally terse argument that he is entitled to 

relief due to Judge Bartlett’s failure to make extensive findings. In his main brief, 

Marrero’s entire argument on this point is only a two-sentences-long paragraph 

devoid of citations to the record or any authority. And Marrero’s reply brief does 

not remedy the problem as it cites only one distinguishable case, Clark v. 

Commonwealth, 608 S.W.3d 175 (Ky. App. 2020). Clark generally highlights the 

importance of a trial court’s findings in the appellate process, but it is materially 

distinguishable since it does not involve a motion to withdraw a guilty plea. In 

fact, it involved a trial court’s complete failure to analyze a speedy trial claim 

under binding United States Supreme Court precedent. Id. at 178-81. No such 

similar circumstances exist here.

Precedent makes plain that “a terse, conclusory assertion wholly 

unaccompanied by meaningfully developed argument or citation to authority is 

insufficient to merit appellate relief.” Schell v. Young, 640 S.W.3d 24, 32 (Ky. 

App. 2021), discretionary review denied (Mar. 16, 2022). Accord Harris v. 

demonstrate that being present remotely prevented him from exercising any right that he could 

have exercised in person.”). 
-12-

Commonwealth, 384 S.W.3d 117, 131 (Ky. 2012). Consequently, Marrero’s 

argument regarding Judge Bartlett’s findings is insufficient to warrant appellate 

relief.

Finally, it is beyond serious dispute that Judge Summe issued 

sufficient findings. Although Judge Bartlett did not formally adopt Judge 

Summe’s findings, he remarked that he had observed the hearing she conducted 

and stated his denial of Marrero’s motion was, at least in part, “based upon” that 

hearing. In other words, the Kenton Circuit Court, as a whole, held a hearing and 

issued findings. Cf. Herring v. Moore, 561 S.W.2d 95, 98 (Ky. App. 1977) (“The 

court is an entity, not a person . . . .”). What common sense purpose would be 

served by remanding two of these cases for findings when another judge facing the 

exact same motion from the exact same defendant has already made them?

In conclusion, we generally agree with Marrero that it is preferable for 

a court to make findings when resolving a motion to withdraw a guilty plea. But, 

under the unique facts of this case, we perceive no prejudicial errors. Instead,

Marrero has shown, at most, a harmless error. See RCr 9.24. 

No Error in Denial of Motion to Withdraw

Having cleared the considerable procedural underbrush, we now turn 

to addressing on the merits whether the Kenton Circuit Court abused its discretion 

in denying Marrero’s motion to withdraw his plea. The answer is no. 
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RCr 8.10 provides in relevant part that “[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.” Trial courts have discretion to allow

withdrawal of voluntarily made guilty pleas, so we generally review a trial court’s 

decision to deny such motions for abuse of discretion. Blanton v. Commonwealth, 

516 S.W.3d 352, 356 (Ky. App. 2017). A decision is an abuse of discretion if it is 

arbitrary, unreasonable, unfair, or not supported by sound legal principles. Sturgill 

v. Commonwealth, 533 S.W.3d 204, 208 (Ky. App. 2017). 

However, if a trial court determines that a guilty plea was involuntary, 

“the motion to withdraw it must be granted.” Rodriguez v. Commonwealth, 87 

S.W.3d 8, 10 (Ky. 2002). We review a trial court’s decision as to whether a plea 

was involuntary under the clearly erroneous standard, which focuses on whether 

the trial court’s decision is supported by substantial evidence. Sturgill, 533 S.W.3d 

at 208.

6

 Our Supreme Court has expressed the many factors to consider when 

determining whether a guilty plea was involuntary as follows: 

In cases where the defendant disputes his or her 

voluntariness, a proper exercise of this discretion requires 

trial courts to consider the totality of the circumstances 

surrounding the guilty plea and juxtapose the 

6 Our Supreme Court has alternately held that appellate courts “review[] a trial court’s ruling on 

a defendant’s motion to withdraw his guilty plea only for abuse of discretion by ascertain[ing] 

whether the court below acted erroneously in denying that appellant’s pleas were made 

involuntarily.” Bronk v. Commonwealth, 58 S.W.3d 482, 487 (Ky. 2001) (internal quotation 

marks and citation omitted). Regardless of the standard of review utilized, Marrero is not 

entitled to relief.
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presumption of voluntariness inherent in a proper plea 

colloquy with a Strickland v. Washington[, 466 U.S. 668, 

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] inquiry into the 

performance of counsel: 

A showing that counsel’s assistance was 

ineffective in enabling a defendant to intelligently 

weigh his legal alternatives in deciding to plead 

guilty has two components: (1) that counsel made 

errors so serious that counsel’s performance fell 

outside the wide range of professionally competent 

assistance; and (2) that the deficient performance 

so seriously affected the outcome of the plea 

process that, but for the errors of counsel, there is a 

reasonable probability that the defendant would 

not have pleaded guilty, but would have insisted 

on going to trial.

Evaluating the totality of the circumstances 

surrounding the guilty plea is an inherently factual 

inquiry which requires consideration of the accused’s 

demeanor, background and experience, and whether the 

record reveals that the plea was voluntarily made. While 

[s]olemn declarations in open court carry a strong 

presumption of verity, the validity of a guilty plea is not 

determined by reference to some magic incantation 

recited at the time it is taken[.] The trial court’s inquiry 

into allegations of ineffective assistance of counsel 

requires the court to determine whether counsel’s 

performance was below professional standards and 

caused the defendant to lose what he otherwise would 

probably have won and whether counsel was so 

thoroughly ineffective that defeat was snatched from the 

hands of probable victory. Because [a] multitude of 

events occur in the course of a criminal proceeding which 

might influence a defendant to plead guilty or stand 

trial, the trial court must evaluate whether errors by trial 

counsel significantly influenced the defendant’s decision 

to plead guilty in a manner which gives the trial court 

reason to doubt the voluntariness and validity of the plea.
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Because of the factual determinations inherent in 

this evaluation, Kentucky appellate courts have 

recognized that the trial court is in the best position to 

determine if there was any reluctance, misunderstanding, 

involuntariness, or incompetence to plead guilty at the 

time of the guilty plea and in a superior position to judge 

[witnesses’] credibility and the weight to be given their 

testimony at an evidentiary hearing. Accordingly, this 

Court reviews a trial court’s ruling on a defendant’s 

motion to withdraw his guilty plea only for abuse of 

discretion by ascertain[ing] whether the court below 

acted erroneously in denying that appellant’s pleas were 

made involuntarily.

Bronk, 58 S.W.3d at 486-87 (internal quotation marks, footnotes, and citations 

omitted).

Marrero’s main complaint was that he was unable to view discovery

provided to him by counsel. But Marrero’s alleged inability to view discovery was 

already known to him when he pleaded guilty, yet he did not timely inform either 

judge of his concerns. And Graham testified that she believed the DVDs she 

provided to Marrero worked and had reviewed the paper discovery with Marrero, 

or at least had attempted to do so.

The trial court gave more credence to Graham than Marrero. We 

cannot disturb that credibility determination. See, e.g., Bhattacharya v. 

Commonwealth, 292 S.W.3d 901, 904 (Ky. App. 2009). Also, Marrero passed up 

at least one opportunity to review discovery with Graham, which significantly 

undercuts his claims that he somehow was forced to plead guilty because he was 
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not sure of the evidence against him. In sum, Marrero has not shown that 

counsel’s performance regarding discovery was deficient or how any deficiency 

caused him to plead guilty instead of going to trial. 

A similar conclusion applies to Marrero’s claim that his guilty plea 

was not voluntary because Graham declined to file motions, such as a motion to 

suppress. “An attorney cannot be ineffective for failing to raise a non-meritorious 

claim.” Williams v. Commonwealth, 336 S.W.3d 42, 47 (Ky. 2011). Graham 

testified that she had researched the issues Marrero wished her to raise, such as his 

alleged intoxication at the time of his confession, but had concluded there was no 

proper basis upon which to seek relief. The trial court was permitted to find 

Graham more believable than Marrero. 

Moreover, filing unsuccessful motions would have been fruitless 

endeavors which would not have favorably impacted these cases, so it is incumbent 

upon Marrero to show that the motions he wished Graham to file would have been 

successful. He has not done so. In short, Marrero has not shown that the trial 

court erred by denying his motion to withdraw based upon counsel’s failure to file 

requested motions.

Finally, Marrero has not shown an entitlement to withdraw his plea 

based upon counsel’s actions or inactions during the plea negotiation process. 

Marrero testified at the hearing that he had told Graham all along that he did not 
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want to plead guilty but had taken the plea offer because he did not think Graham 

would fight for him. Marrero claimed Graham would have lost his cases on 

purpose, so he was forced to take the plea offer. Again, however, Judge Summe 

found Marrero to have generally poor credibility and there is nothing except 

Marrero’s self-serving testimony to show that Graham would have lost on purpose 

if the cases had gone to trial. 

By contrast, Graham testified that Marrero asked her repeatedly to try 

to get a better plea offer from the Commonwealth. In fact, it is uncontested that 

Marrero went so far as to take the highly unusual step of speaking to the 

Commonwealth directly to try to get a lower sentence. Yet, inexplicably, Marrero 

testified that he was not truly interested in reaching a deal but only wanted to see if 

the Commonwealth would make what Marrero deemed a fair plea offer. 

Marrero has not shown that his counsel made serious errors during the 

plea process nor that he would have insisted upon going to trial, but for counsel’s 

allegedly deficient performance. Marrero was personally involved in the plea 

negotiation process and ultimately obtained a favorable offer. Other than his own 

self-serving speculation, Marrero has not shown any improper or prejudicial 

actions or inactions by his counsel during the plea negotiation process. In fact, 

Marrero told Judge Summe and Judge Bartlett when he pled guilty that he was 

satisfied with his counsel’s representation. Such representations “carry a strong 
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presumption of verity.” Dorsey v. Commonwealth, 565 S.W.3d 569, 577 (Ky. 

2018) (internal quotation marks and citation omitted).

In sum, considering all of the unique facts and circumstances of this 

case, we discern no error in the circuit court’s conclusion that Marrero’s plea was 

voluntary. Likewise, we perceive no clear error or abuse of discretion in the trial 

court’s refusal of Marrero’s motion to withdraw his voluntarily made guilty plea. 

The trial court’s decision is supported by substantial evidence and is not arbitrary, 

unfair, or unsupported by sound legal principles.

Conclusion

For the foregoing reasons, the Kenton Circuit Court is affirmed in all 

three cases.

ALL CONCUR. 

BRIEFS FOR APPELLANT:

Steven J. Buck

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Stephanie L. McKeehan

Assistant Attorney General

Frankfort, Kentucky