CORRECTED: FEBRUARY 20, 2020

RENDERED: AUGUST 29, 2019

NOT TO BE PUBLISHED

2018-SC-000281-DG

DAVID MURPHY APPELLANT

ON REVIEW FROM COURT OF APPEALS

V. CASE NO. 2017-CA-000179-MR

PULASKI CIRCUIT COURT NO. 14-CR-00405

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

On June 18, 2015, David Murphy pled guilty to the charge of Sodomy

First Degree, Victim Under 12. On August 18, 2015, he. was sentenced to

twenty years ’ imprisonment, the statutory minimum. At the sentencing

hearing, the trial court denied Murphy ’ s motion to withdraw his plea. Murphy

never challenged his guilty plea on direct appeal. Instead, on August 15, 2016,

Murphy filed an RCr 1 11.42 Motion to Vacate, Set Aside or Correct Sentence.

The trial court denied Murphy ’ s motion and the Court of Appeals affirmed.

Thereafter, we granted Murphy ’ s petition for discretionary review.

1 Kentucky Rules of Criminal Procedure.I. Factual and Procedural Background.

At Murphy

’ s guilty plea hearing, the trial court conducted the following

Boykin 2 plea colloquy:

Judge: Are you under the influence of any drugs or alcohol

today?

Murphy: No.

Judge: Are you thinking clearly?

Murphy: Yup.

Judge: Anybody threaten you or do anything against your

will?

Murphy: No.

Judge: Do you have any mental illness that will keep you from

understanding what is being said here today?

Murphy: I ’ m slow.

Judge: But can you understand what I am saying?

Murphy: Yeah.

Judge: If I move too fast, you stop me and ask me a question

or talk to your lawyer. Are you satisfied with your lawyer?

Murphy: She has done what she had to do, what I wanted her

to do.

Judge: Do you know that by pleading guilty, you ’ re giving up

your right to a trial and to appeal?

Murphy: Yes, sir, I do.

Judge: Those are constitutional rights and you ’ re waiving

them. Do you understand?

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

2Murphy: Yes.

Judge: Well, as I understand it, you ’ ve worked out a deal here

on one count. Let me ask you, do you plead guilty or

not guilty on the sodomy first-degree, victim under age

12?

Murphy: I plead guilty.

Judge: Are you pleading guilty because you are guilty and for

no other reason? Look at me.

Murphy: I ’ m guilty.

Judge: Let the record reflect that upon examination of this

Defendant, the Court finds and concludes that this

plea of guilty is made knowingly, voluntarily, and

intelligently. Further find that he ’ s represented by

competent counsel known by this court, with whom

this Defendant has expressed his satisfaction. The

Court does hold, order, and adjudge David Brandon

Murphy guilty of this Class A felony.

Murphy argued in his RCr 11.42 motion that this plea colloquy was

insufficient and prejudicial, that the trial court could not have determined from

the above colloquy and signed plea agreement that his guilty plea was

“ voluntary and intelligent, ” and that his trial counsel was ineffective under

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984), for failing to ask the court to conduct a more thorough colloquy. See

Edmonds v. Commonwealth, 189 S.W.3d 558, 565 (Ky. 2006) (discussing

Boykin colloquy requirements). After reviewing the record, we affirm the Court

of Appeals ’ decision upholding the denial of Murphy ’ s RCr 11.42 motion but on

different grounds.

3II. Standard of Review.

“ The structure provided in Kentucky for attacking the final judgment of a

trial court in a criminal case is not haphazard and overlapping, but is

organized and complete. ” Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky.

1983). The underlying issue here is whether the trial court conducted a proper

Boykin colloquy, and thus, whether Murphy entered a knowing and voluntary

guilty plea. However, Murphy failed to raise this issue on direct appeal.

An RCr 11.42 motion may only collaterally attack one ’ s sentence and is

“ limited to issues that were not and could not be raised on direct appeal. ” Mills

v. Commonwealth, 170 S.W.3d 310, 326 (Ky. 2005), overruled on other grounds

by Leonard v. Commonwealth, 279 S.W.3d 151, 158-59 (Ky. 2009); see also

Kiper v. Commonwealth, 415 S.W.2d 92, 95 (Ky. 1967) ( “ the motion under RCr

11.42 is not a substitute for appeal, and [] it does not permit a review of all the

alleged errors surrounding the trial[] ” (quotation omitted)). Therefore, because

Murphy could have, but did not, directly appeal this issue, this Court cannot

review whether the trial court committed reversible error in conducting an

inadequate plea colloquy. Rather, we are constrained to analyzing Murphy ’ s

claim under the Strickland ineffective assistance of counsel standard. 3

3 We point out that this case may have had a different outcome, and certainly a

different standard of review, had the issue been raised on direct appeal. Indeed,

Boykin issues are not waived when a defendant signs a plea agreement waiving his

right to appeal. See Grigsby v. Commonwealth, 302 S.W.3d 52, 55 (Ky. 2010) ( “ Boykin

challenges survive a waiver of the right to appeal ” ).

4the performance of counself.] ’ ” Commonwealth v. Rank, 494 S.W.3d 476, 481

(Ky. 2016) (quoting Bronk v. Commonwealth, 58 S.W.3d 482, 486 (Ky. 2001)).

Further, “ [t]o successfully establish the invalidity of a guilty plea based upon

the allegedly deficient performance of defense counsel, the movant must satisfy

both prongs of the two-part test set forth in Strickland v. Washington

. . . and

restated by this Court in Bronk v. Commonwealth. ” Id. Lastly, “ 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. ” Bronk, 58 S.W.3d

at 487.

The first prong of a Strickland claim is whether trial counsel ’ s conduct

was deficient. Murphy ’ s pro se RCr 11.42 motion before the trial court set

forth three reasons why his trial counsel ’ s conduct was deficient: (1) trial

counsel failed to challenge the confession Murphy gave to police; (2) trial

counsel failed to file a motion asking for an expert witness to refute Kentucky

Correctional Psychiatric Center ’ s (KCPC) mental health report; and (3) trial

counsel should have asked the court to hold itself to the full standards of the

colloquy phase at Murphy ’ s guilty plea hearing. On appeal, however, Murphy

solely alleges that his attorney should have asked the court to conduct a more

thorough Boykin colloquy. Murphy discusses at length why the trial court ’ s

Boykin colloquy was deficient, how the trial court ’ s order denying his RCr

11.42 motion incorrectly stated the requirements of a proper guilty plea, and

how the Court of Appeals also used the wrong standard, but he fails to identify

6trial counsel ’ s actions which rendered her performance deficient. On its face,

Murphy

’ s argument attempts to shoehorn an argument waived by failure to file

a direct appeal

— that Murphy ’ s guilty plea was involuntary based on an

improper Boykin colloquy

— into a RCr 11.42 motion based on a Strickland

claim.

While this Court has previously held that interplay exists between RCr

11.42 motions, Strickland claims, and potential involuntary guilty pleas, some

deficient performance on behalf of counsel must exist for the claim to be viable.

Rank, 494 S.W.3d at 481. In Murphy ’ s case, trial counsel did not perform

deficiently by not objecting to the trial court deeming Murphy ’ s answers

sufficient and by not asking the court to conduct a more thorough Boykin

colloquy. The failure to conduct a proper Boykin colloquy is trial court error,

not deficient performance by trial counsel, unless trial counsel ’ s conduct

somehow causes the trial court to conduct an improper colloquy. Under this

set of facts, we see no basis to conclude trial counsel ’ s actions were deficient.

Furthermore, even if trial counsel ’ s conduct was deficient, Murphy still

must prove that he was prejudiced as a result. Murphy was indicted on two

counts: Sodomy, First Degree (victim under 12 years of age), a Class A felony

and Sexual Abuse, First Degree (victim under 12 years of age), a Class C felony.

KRS 4 510.070; KRS 510.110. A Class A felony carries a twenty-year minimum

term of imprisonment and a potential for life imprisonment. KRS 532.020. A

4 Kentucky Revised Statutes.

7Class C felony carries a minimum of five years and a maximum of ten years ’

imprisonment. Id. Per his plea agreement, the Sexual Abuse charge was

dropped, and Murphy pled guilty to Sodomy, First Degree and received the

minimum sentence of twenty years ’ imprisonment. Had Murphy elected to go

to trial, the Commonwealth had ample evidence against him. First, he gave a

statement confessing to his actions. Second, discovery records show that the

Commonwealth had evidence of Murphy ’ s DNA on the victim ’ s underwear. No

prejudice occurred in this case as any reasonable counsel would have

instructed their client on the risks of going to trial when the Commonwealth

has a confession and DNA evidence at its disposal. Moreover, Murphy received

the minimum sentence for a Class A felony, something a jury may not have

recommended had he been convicted at trial. Under the factual circumstances

of this case, no prejudice occurred from counsel ’ s alleged ineffective assistance.

Therefore, we affirm the Court of Appeals analysis of Murphy ’ s Strickland

claim.

IV. Analysis of a Proper Boykin Colloquy and Voluntary Pleas.

Since both the trial court and Court of Appeals offer differing, mistaken

conclusions of what must occur for a plea to be voluntary, we write to clarify.

First, the trial court in its order denying Murphy ’ s RCr 11.42 motion held that

“ [t]he Defendant pled guilty, in open court. In Kentucky, nothing more is

required. ” This is an incorrect pronouncement of what is required to show that

a guilty plea is knowing, voluntary, and intelligent. This Court has consistently

held that “ [w]hile solemn declarations in open court carry a strong presumption

8of verity, the validity of a guilty plea is not determined by reference to some

magic incantation recited at the time it is taken. ” Bronk, 58 S.W.3d at 487

(citations and quotations omitted). Boykin also requires that a defendant “ have

a full understanding of what the plea connotes and its consequences. ”

Johnson v. Commonwealth, 103 S.W.3d 687, 691 (Ky. 2003) (citations and

quotations omitted). Accordingly, the trial court ’ s belief that a defendant must

merely state that he is guilty, “ in open court, ” in order to make his guilty plea

valid, is inaccurate.

Second, the Court of Appeals was incorrect to hold that Murphy ’ s guilty

plea was “ intelligent and voluntary ” because he signed a plea agreement which

“ expressly sets out his waiver of [his] constitutional right[s] and his

acknowledgment that the plea was freely, knowingly, intelligently and

voluntarily made. ” Boykin requires that a defendant must make “ an affirmative

showing that [the plea agreement] was intelligent and voluntary. ” 395 U.S. at

242, 89 S. Ct. at 1711. A signed agreement may be evidence of an intelligent

and knowing guilty plea, however, a signed agreement does not automatically

satisfy the “ intelligent and voluntary ” requirement. A Boykin colloquy is

required.

Here, the KCPC report in the record listed Murphy ’ s IQ at 64, with a

diagnosis of mild mental retardation. 5 The KCPC report also indicated that

5 Although we understand that the medical community no longer refers to

intellectual disabilities using this term, the language used in the KCPC report

observed that Murphy “ suffers from mild intellectual disability (Mild Mental

Retardation) based on his test findings and his adaptive behavior. ” “ Mental

retardation ” and “ intellectual disability ” have been described by the United States

9Murphy was functionally illiterate. Although the report opined that these

factors did not render Murphy incompetent to stand trial or assist in his

defense, the trial court should have acknowledged these issues and conducted

a much more thorough colloquy.

A Boykin colloquy is designed to determine, through the totality of the

circumstances, whether a defendant is voluntarily pleading guilty and

understands what constitutional rights he is giving up. Bronk, 58 S.W.3d at

486. “ It is good procedure, therefore, for a state judge to conduct a careful

inquiry into the defendant ’ s understanding of the nature and consequences of

his plea. A comprehensive on-the-record inquiry into this matter ‘ forestalls

the spin-off of collateral proceedings that seek to probe murky memories. ’ ”

Roddy v. Black, 516 F.2d 1380, 1384 (6th Cir. 1975) (emphasis added) (quoting

Boykin, 395 U.S. at 244, 89 S. Ct. at 1713). Especially when the defendant is

potentially disabled, a magic incantation of a few words in order to show that

the defendant plead guilty on the record is insufficient. 6 Id. at 487. While the

trial court ’ s alleged errors regarding the colloquy are not before this Court

—

outside of their connection to Murphy ’ s Strickland claim

— as they were not

Supreme Court as “ identical phenomenon. ” Hall v. Florida, 572 U.S. 701, 704, 134 S.

Ct. 1986, 1990, 188 L. Ed. 2d. 1007 (2014). The change in terminology has been

approved and adopted by psychiatrists and other experts in mental disorders. Id.

6 While the trial court merely glossed over or failed to mention the specific

constitutional rights Murphy waived during the Boykin colloquy, we note that the

“ [t]he failure to mention

. . . specific rights

. . . does not preclude a finding that

[Murphy] voluntarily and intelligently entered his guilty plea. ” United States v. Stead,

746 F.2d 355, 357 (6th Cir. 1984); see also Grigsby, 302 S.W.3d at 56 ( “ Boykin does

not require separate enumeration of each right waived. Rather, as long as a defendant

has a full understanding of what the plea connotes and its consequences, it is valid[] ” )

(citations and quotations omitted).

10raised in a direct appeal, future trial courts should be on notice that a more

thorough colloquy, particularly in the case of intellectually disabled

defendants, should be conducted to ensure that a defendant ’ s guilty plea is

knowing, voluntary, and intelligent and complies with the structure set forth in

Boykin.

V. Conclusion.

After a thorough review of the record, we affirm the decision of the Court

of Appeals finding that the trial court did not err in denying Murphy ’ s RCr

11.42 motion without an evidentiary hearing. However, in doing so, we urge

courts across this Commonwealth to conduct more thorough Boykin colloquies,

especially with intellectually disabled defendants, to ensure that any guilty plea

is entered knowingly, voluntarily, and intelligently.

Minton, C.J.; Buckingham, Hughes, Keller, VanMeter and Wright, JJ.,

sitting. All concur. Lambert, J., not sitting.

COUNSEL FOR APPELLANT:

Andrea Reed

Assistant Public Advocate

Department of Public Advocacy

COUNSEL FOR APPELLEE:

Andy Beshear

Attorney General of Kentucky

Julie Scott Jernigan

Assistant Attorney General

11

# (Enurf of 

# ^Kentucky

2018-SC-000281-DG

DAVID MURPHY APPELLANT

ON REVIEW FROM COURT OF APPEALS

CASE NO. 2017-CA-000179-MR

V. PULASKI CIRCUIT COURT NO. 14-CR-00405

COMMONWEALTH OF KENTUCKY APPELLEE

ORDER DENYING PETITION FOR REHEARING

AND CORRECTING OPINION

The Petition for Rehearing, filed by the Appellant, of the Opinion of the

Court, rendered August 29, 2019, is DENIED. The Opinion of the Court

rendered August 29, 2019, is corrected by substitution of the attached Opinion

in lieu of the original Opinion. Said correction does not affect the holding of the

original Opinion of the Court.

The Court corrects said Opinion by changing footnote five to read as

follows:

Although we understand that the medical community no longer

refers to intellectual disabilities using this term, the language used

in the KCPC report observed that Murphy “ suffers from mild

intellectual disability (Mild Mental Retardation) based on his test

findings and his adaptive behavior. ” “ Mental retardation ” and

“ intellectual disability ” have been described by the United States

Supreme Court as “ identical phenomenon. ” Hall v. Florida, 572

U.S. 701, 704, 134 S. Ct. 1986, 1990, 188 L. Ed. 2d. 1007 (2014).The change in terminology has been approved and adopted by

psychiatrists and other experts in mental disorders. Id.

Minton, C.J.; Hughes, Keller, Nickell, VanMeter and Wright, JJ., sitting.

All concur. Lambert, J., not sitting.

2