# IMPORTANT NOTICE

. NOTTO BE PUBLISHED OPINION

. . 

## · THIS OPINION IS DESIGNATED "NOTTO BE PUBLISHED." PURSUANTTO 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·THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE

CITED OR,USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY_COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, ·.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 FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY-ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT .SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL-BE TENDERED ALO.NG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE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 ACTION.RENDERED: SEPTEMBER 28, 2017 NOT TO BE PUBLISHED 

# ,uprttttt.filnurf.nf**~rnfurku** 20l6-SC-000090 MR
ERIC R. RIVERA- APPELLANT



### v. pN APPEAL .FROM KENTON CIRCUIT COURT HONORABLE GREGORY M: BARTLETT, JUDGE NO
..13-QR-01020
COMMONWEALTH OF KENTUCKY

MEMORA?iDUM OPINION OF THE COURT AFFIRMING I. BACKGROUND APPELLEE

.A Kenton County Grand Jury.indicted Appellant, Eric Roark Rivera, on
seven charges:. one count ofincest, three counts offirst-degree s.odomy (victim under twelve years ofage), two counts offirst-degree sexual abuse (victim under tWelve years ofage), and orie count ofdistribution ofobscene matter to a niinor. These charges arose from allegations that Rivera had engaged in

,. multiple sex acts with two ofhis daughters, eight-year-old Jane and six-yearold Suzie.I Riveraultimately accepted a plea agreement, pleading guilty to incest, sodomy, andsexual abuse. After entering his plea (but before the

1 We have changed the names ofall minors in this Opinion to protect their

. . privacy
..sentencing hearing) Rivera attempted to withdraw it based on the alleged ' . . deficient performance ofhis counsel. The trial court denied this motion and sentenced Rivera to twenty-five years'imprisonmentin accordance with the ·pleaagreement.· Riveranow appeals as a matter ofright, Ky. Const. §I10(2)(b), arguing that his pleawas not voluntarily, knowingly, and intelligently made and that

· the trial court abused its discretion in,denyinghis motion to withdraw the plea.

Further facts will be developed below, as needed for our analysis.
II. ANALYSIS .

. Rivera asserts that the deficient performance ofhis·counsel in investigating and relaying information caused time pressures and factual misunderstandings which rendered his_plea involuntary. Therefore, Rivera argues that the trial court should have granted his.motion to withdra'Y the plea. Ameer Mabjish represented Rivera during the period leadingup to his plea. John Delany later acted as co-:-counsel and trial attorney for Rivera. The Commonwealth initially offered Rivera a plea deal with

## athirty-year sentence: More than a year later, the Commonwealth had no.t revoked the offer, nor had Rivera accepted it. At that point, the Commonwealth purportsitmade a verbal offer.·ofa twenty-five-year senten.ce to Mabjish. Rivera testified that Mabjish

. ' ' waited several days to inform him ofthe twenty-five-year offer. By the time
. Rivera knew about the**~ew** offer, itwas only six days before his trial was slatec;:l to begin-and only one day before the offer would expire. 2Riveraultimately accepted the plea. The trial courtheld a hearing in order to leave a record ?fwhether Rivera had "a full understanding ofwhat the
. pleaconnote[d] and ofits consequence·." Boykin v. Alabama, 395 U.R 238, 244 (1969). Both Rivera's attorneys, MabJish and Delaney, were present at the· Boykinhearing. The trialjudge conducted a thorough colloquy, making detailed and repetitious inquiries into Rivera's decision to plead guilty and pro.bing Rivera's understanding ofthe consequences oftpe plea. During the colloquy, Rivera stated under oath that his plea was free and voluntary. He affirmed thathe understood the plea agreement and its consequences.**~hough** he hesitated in giving his answer (as discussed in · greater detail below), Rivera stated that his attorneys had met with him for an

. .

adequate amount oftime to discuss and explain the plea and its ramifications. Rivera confirmed his understanding ofthe sex offender registry and the**r~qufrements** ofregistering as 

### a: sex offender. He also stated that he understood that, as a convicted felon, his rights would be restricted. He stated he was notunder the influence ofany drags or medications which migp.t· hamper his abilityto make the decision to accept the·plea.

- Rivera did have two complaints during the colloquy. First, when the court asked ifhe was satisfied with the performance ofhis attorneys, Rivera

.hesitated slightly before answering in the affirmative. When the trialjudge

asked Rivera to explain the hesitation, Rivera stated that he wa:s upset that he had only metwith his attorney on.ce, and that he felt rushed having only had twenty-four hours to consider the plea.

-Rivera was referring to having only a 3single meetingwith his trial attorney, Delany._ However, Rivera confirmed that,,- he had met with.Mabjish over the course ofthe case and had spoken to h.im on the telephone. Rivera affirmed his beliefthat Mabjish had given him sound

/ . and adequate advice as to his chances·at trial, and that he believed Mabjish had investigated his case sufficiently. Rivera said, "It's not so much that he didn't come see me, it'sjustthis last-minute .offer." At this point, the trialjudge asked the Commonwealth if.the deadline on the plea deal could be extended to give Rivera more time for consideration.

. The Commonwealth**dec~ined,** as witnesses (including the minorvictims) would

beflying in from out ofstate ifRivera rejected the plea deal and, instead went to trial. The Commonwealth reasoned that prosecutors need time to prepare these witnesses for trial.
.

.After the Commonwealth declined to extend the deadline, fue trialjudge then asked Rivera how !1e .wished to proceed. Rivera answered, "I already · agreed to it, let's move forward." Thejudge asked Rivera ifthere was anythin_g his counsel had left unattended orifthere was anything else Rivera needed from the courtpefore enteringhis plea. Rivera responded that he was entering the plea ofhis own volition. Rivera indicated he tookhis attorneys'word that all relevant mattershad been attended to, and thathis attorneys had discussed everything**relev~t** to his decision to plead with him. Rivera ·explained to the trial court that he believed the .plea agreementwas the best way to resolve.this case, that he did not wish to face ajury trial, and that the

4potentia,l for a much harsher sentence was the motivating factor iri his decision 

## '

. to accept the plea. Rivera did not enter anAlford.plea, though under North Carolina 

### v. Alford, "An accused mayvoluntarily, knowingly,_ and understandingly consent**~** to the imposition ofa .prison sentence even though he is unwilling to admit participation in the crime, or even ifhis guilty plea contains a protestation of

/C innocence, when [the defendant] intelligently concludes that his interests require a guiltyplea and the record strongly evidences guilt." 400 U.S. 25, 25- \ 26 (U.S. 1970). Rather, Rivera admitted the factual allegations underlying each ofthe offenses towhich he pleaded guilty.

·A. The Trial Court Did Not Commit Clear Error in Finding Rivera Entered the Plea Voluntarily. Two weeks after accepting the,plea (but before sentencing), Rivera sent a letter to the trial court, seeking to revoke his ·guilty plea
..In the letter, Rivera stated.that he was not guilty ofthe chargesto which he had previously
l .plead_ed, and claimed that his attorneys'defit::ient perforinance coerced him into accepting the plea agreement involuntarily. Rivera claimedthat his counsel had "materiallymisrepresented key facts and testl.mony that was purported to ·be used for and against [Rivera] in [his] defense." He also claimed**tha~** his
access to discovery materials had_ been incomplete at the time ofthe**pl~a.** The tri8.i court held a hearing to consider Rivera's motion to withdraw his guilty plea, and appointed conflict counsel to.represent Rivera at the hearing. Rivera asserted three main arguments as to why his plea should be set aside.
5First, Rivera objected to the twenty-four-hour timeframe he had to consider the final plea agreement. Second, Rivera claimedhis attorneys misrepresented two keypieces ofinformation to him. ·Third, Rivera complained that Mabjish had· only had two meetings with him over the course ofthe year he represented Rivera. After the evidentiaryhearing, the trial courtissued a written order denying Rivera's request to withdraw his guilty plea. The trial courtfound that Rivera**~freely,** knowingly, intelligently, and voluntarily entered a plea ofguilty." The Kentucky Rules ofCriminal Procedure require a trial court accepting
a plea to determine "that the plea is made voluntarilywith understanding of the nature ofthe charge." RCr.8.08. Furthermore, due process requires a trial court to make an affirmative showing, on the record, that a guilty plea is .voluntary and intelligentbefore it may be accepted. 

### Boykin, 395 U.S. at 241- 42. "In cases where the defendant disputes his or her voluntariness, a proper exercise ofthis discretion requires trial courts to consider the totality ofthe
. circumstances surrounding the guilty plea." 

### Brorik v. Commonwealth, 58 ' S.W.3d 482, 486-87 (Ky. 2001). Though ruling on an RCr 8.10 motion 

### tO withdraw a plea is within the sound discretion ofthe**tri~** court, a defendant is entitled to a hearing on such 

# amotion whenever itis alleged that the pleawas entered involuntarily. 

### Rodriguez v. Commonwealth, 87 S.W.3d 8, 10 (Ky. 2002); 

### Bronk, 58 S.W.3d at 486; see also 

### Brady v. United States, 397 U.S. 742, 749 (1970).'· In orderto succeed on a motion to withdraw a pleaunder RCr 8.10, "the movant must allege with particularity specific facts which, iftrue, would render the pleainvoluntary." 

### Commonwealth v. Pridham, 394 S.W.3d 867, 874 (Ky. 2012). As the Supreme Court ofthe United States has held: A plea ofguilty enteredby one fully aware ofthe direct consequences, including the actual value ofany.commitments made to him by the court,_ prosecutor, orhis own counsel, must stand unless'induced by threats (or p'romises to discontinue improper harassment), misrepresentation (includingunfulfilled or unfulfillable proμiises), or perhaps by promises that are by their nature improper as having no properrelationship to the prosecutor's business (e.g
.. bribes) 

### Brady397 U.S. at755. Therefore, in determining whetherthe trial court.erred in denying Rivera's motion to revoke his plea, we must first determine whether Rivera's pleawas voluntary. "Ifa guilty pleais found to have been entered involuntarily, considering the totality ofthe_circumstances, a, trial court must grant a defendant's motion to withdraw the plea. This inquiry is inherently fact-sensitive, thus this Courtreviews such a**deterrp~nation** for clear · error, 

### i.e., whether the determination was supported by substantial evidence." 

### Edmonds v. Commonwealth, 189 S.W.3d 558, 566 (Ky. 2006) (internal citations omitted)
.. The question ofvoluntariness related to the alleged deficiency in counsel required the trial cm.irt to determine ifRivera had

### ~ade a proper showing that

. . counsel's assistance was ineffective in enabling Rivera to intelligently weigh his
. legal alternatives in**de~iding** to plead guilty. There are two components to this analysis:
7. "(1) that counsel made errors so**seriou~** that counsel's performance fell outside the wide range ofprofessiqnally · competent assistance; and (2) that the deficient.performance so

. . seriously affected the outcome ofthe plea process that, but for the errors ofcounsel, th<:!re is a reason,able probapility that the defendant would not have pleaded guilty, butwould have insisted on going to trial." 

### Bronk, 58 S.W.3d at 486-87 (quoting 

### Sparks v. Commonwealth., 721 S.W.2d 

### '·

. 726, 727 (Ky. Ct. App. 1986))
.. In otherwords, the trial court's inquiry into allegations ofineffective

. . . I

. counsel requires the court to determine whether counsel's performance was below professional standards and "caused the defendant to lose what he

.otherwise wnqld probablyhave won" and "whether counsel was so thoroughly ineffective that defeatwas snatched from the hands ofprobable victory." 

### Foley
v. Commonwealth, 17 S.W.3d 878, 884 (Ky. 2000)
.. At the hearing on Rivera's motion to withdraw his plea, Rivera's arguments ofinvoluntafi.ness all boiled down to his

### dissati~faction with his counsel in investigating and relaying information to him·adequately.and in a timely manner. However, the trial courtfound Rivera's arguments unpersuasive. The courtfound that none ofRivera's assertions, even iftaken·
as true, acted to negate thevoluntarit:J.ess ofhis initial plea.
. When the trial court examined Rivera's first assertion (that his counsel
was ineffective because he failed to relay the plea offer to him in a timely manner-leavinghim with only twenty-four hours to decide), the trial court reviewed the events going back to Rivera'sindictment. Rivera conceded that the Commonwealth had offered him a thirty-year deal more than a year before,. 8and that he had discussed that offer with Mabjish at that time. Given this

. . prio! offer, the Commonwealth stated it thought twenty-four hours was enough time for Rivera to consider a better offer oftwenty-five years.

. Here, Rivera was faced with a choke on the eve oftrial. On one hand, he could accept a slightly better offer (twenty-five years) than the thirty-year offer

. . he had been consideringfor more than a year. Under that offer, the Commonwealth would dismiss two counts offirst-degree sodomy, one count of first-degree 

### sexual abuse, and one count ofdistribution ofobscene matter to a minor. In the alternative, Rivera could go to trial onalLcounts and charges and, ifconvicted, face sentences oftwenty-years'to life imprisonment on each Class A felony. No doubt a choice between two harsh alternatives is not a pleasantchoice. However, dissatisfactfon with alternatives available to a defendant·does not render the decision involuntary.**~ivera's** frustration with beingpresented with such a decision was apparent at the Boykinhearing, however, the choice**w~s** still Rivera's to make. Sefore making his decision, Rivera confe1!ed w!th_his cou_nsel for several hours. He eventually chose to accept the plea agreementrather than face a

.jury trial and a potentiallyharsher sentence. .In fact, at his Boykinhearing,

Rivera specifically stated that he did.not want to face a jury trial because ofthe ·

. .• likelihood ofa lengthier prison sentence. Rivera made a choice between reasonable alternatives when he**chos~** to accept the plea agreement.

. .While itwould have been preferable for Rivera's attorney to have told hiin about the plea .offer earlier, we do not believe this deficiency rendered his plea 9\ involuntary. 

## We hold that counsel w.as not "so thoroughly ineffective that defeat was snatched from .the hands ofprobable victory." Foley, 17 S.W.3d at 884; Rivera's second assertion concerned two pieces ofinformation he felt his counsel had failed to share with him. First, Rive:r;_a claimed to have discovered,
. post-plea,·that his sisterwould have given.testimony at trial that differed from what**h~ w~s**  originally told. Second, he asserted there were disc:;repancies between the summary ofSuzie's interviewwith investigators and the video of her interview. First, Rivera argues that when he entered his plea, h_e believed his sister's testimony would be different th.an what he later discovered itwould have been. As a frame ofreference, we note that the.alleged abuse was brought to light whenJane's grandmother asked the eight-year-old to write a letter to Jesus about any problems she was having and place it in the Bible. In her .second letter, Jane alleged that her father had sexually abused.her. Apparently, when Rivera accepted the plea deal, he believed his,sJster, Kelly Mounce, would testify thatjane's grandmother told Mounce thatJane independentlywrote the letter describing sexual abuse. Rivera claimed that he laterlearned through a conversation with Mounce that**sh~** would have actually

. testified thatJane's grandmother told Mounce that she had assisted Jane in drafting the letter. Rivera argued to the trial court that his counsel was deficient :ln not discovering and informing him ofMounce's actual intended testimony. 10 • IDuring the hearing, Rivera's conflict counsel attempted to play an audio recording ofhimselfspeakingwith Mounce on the telephone.**·~he** prosecutor objected to the tape as unauthenticated hearsay, and wondered why Mounce, a· local resident, had not appeared at thehearing in person. Thejudge sustained the prosecutor's objections, and the tape was not played into the rec::ord.

. . However, the court did allow Rivera to enter the tape by avowal.**~vera** does not argue specifically that this evidentiary ruling was in error, but rather, that the trial court erred in its ultimate finding that Rivera's plea was voluntary. However, Rivera's claim concerning the voluntariness of his plea hinges inpart on whether Rivera can prove his trial counsel failed to properly investigateJane's note. This phone conversation is the evidence he offered to support that claim. ·Therefore; we find it necessary to first determine · whether the trial courtproperly excluded the statementas hearsay. ·The statements at issue were not "made bythe declarantwhile testifying at the trial orhearing," and they were "offered in evidence to prove the truth of the matter asserted." Therefore, the trial court was correct that the statements
were hearsay. Ofcourse, "[h]earsayis not admissible except as provided.by [the Kentucky Rules ofEvidence] orbyrules ofthe Supreme Court of
. Kentucky." KRE 802. Here, Rivera's sist,er was available to testify (or at least

. . he makes no claim that.she was not available for purposes ofthe hearsay rules). Therefore, there is no.need·for this Court to examine the KRE 804 exceptions to the hearsay rule applicable to unavailable witnesses.· Furthermore, none ofthe KRE 803 exceptions apply in this case. We hold that 11 ·the trial .court did not abuse its discretion by ruling the phone call inadmissible. However, even ifwe were to hold that the trial court abused its discretion in disallowing tl:ie hearsay testimony, the ultimate result would be the s.ame. This Court has reviewed the recording,.on which Mounce is speaking to. Rivera's conflict**cou~sel.** Therein, Mounce describes a phone conversatiOn sometime in the fall of2013 dμririg which she learned for the first time that Jane's grandmother had promptedJane to write the.letter and·placeit in the Bible. In the recording, Mounce told Rivera's conflict counsel that prior to the 2013 phone conversation, she believed the letter had "just been found by a · teacher or something." However, during the 2013 call (which she described as being a speaker-phone conversation) Mounce said she heard Jane's grandmother say that itwas her idea for Jane to write the letter to Jesus. Mounce clarified that this is what she meantwhen she indicated thatJane's grandmother "helped" herwith the letter containing allegations ofsexual abuse. Mounce went on to state that her memory ofthe conversation was quite vague, but she did affirm that she had the impression thatJane's grandmotherwas present whenJane drafted the letter. Mounce offered very few specific facts in support ofher general impressions·. The second piece ofinformation Rivera asserts he did not possess wJ::i.en he entered his plea regards a statement given by Rivera's younger daughter Suzie. Though Rivera was.provided with a summary ofSuzie's statement, he

. 12claims that he was unaware that a video ofher statement existed until after entering his plea. Though the summary and the video are substantially similar, the summary did not contain a particular statement by Suzie that is on the video. Specifically, when asked where Rivera's clothes were while the alleged abuse was taking**p~ace,** Suzie replied "upstairs." Rivera asserts that the apartment at issue has no upstairs, and therefore, this inconsistency could be w:ied for impeachment purposes against the alleged victim. Rivera asserted that he did not have access to these discovery materials when he pleaded guilty.

. . The factual discrepancies that Rivera asserts in his case are speculative and collateral to the overall outcome ofa potential trial. Rivera has not made a showing before any court ofhow these discrepancies would materially alter or negate the charges against him. Given the nature ofthese discrepancies it ·cannot be said that Rivera's counsel was so deficient that it "caused the defendant to lose what he otherwise would probably have won." Foley, 17 S.W.3d at 884.**Fina_~ly,** Rivera claims his counselwas ineffective due to the limited nature oftheir meetings. This issue was also addressed in the hearing. Rivera ' . 

### . . asserted a general dissatisfaction with Mabjish, who he claimed onlyvisited him twice and had one telephone conversation with him.- .The prosecutor pointed out that Mabjish was on record at the Boykinhearing.as saying that he had conducted all reasonable preparations for trial. Riverahad affirmed the voluntary and intelligent nature ofhis plea in the Boykinhearing. He 13expressed his satisfaction with his counsel, andaffirmed that the terms·ofthe**plea~** and the ramifications ofacceptance, had been discussed with him at length. Rivera affirmed that he understood the charges against him, and the· legal alternatives available to him at the time. Taking all ofthis into account, the trial court found that Rivera's pleawas voluntary. Again, we examine a trial court's findings offact for clear error. A finding offact is clearly erroneous only ifit is manifestly against the greatweight ofthe**~** . . . evidence. 

### Frances v. Frances, 266**S~W.3d** 754 (Ky. 2008). We acknowledge that "the validity ofa guilty pleais determined not byreference to some magic
. · incantation recited at the time it is taken butfrom the totality ofthe circumstances surroundingit." 

### Kotas v. Commonwealth, 565 S.W.2d 445, 447 (Ky. 1978). For this reason, we tum to the legal situation in which Rivera ( .found himselfwheμ he chose to enterhis plea. Rivera was facing ajurytri8.I the next week 

### iri" which he.was accused of sexually abusinghis two young daughters. The Commonwealth's witnesses included Rivera's ex-wife and two minor daughters. His daughters.were**exp~cted** to testify in open court about numerous instances ofincest, sodomy, and sexual abuse perpetrated upon**the~** by their father. Rivera was in a good position to know what testimony these witnesses were likely to give, and to speculate as.to the_likely effect.this testimonywould have on a juryverdict. As the Supreme·Court ofthe United States has opined: Often the decision to plead guiltyis heavily influenced by the defendant's appraisal ofthe prosecution's case against him and by the apparent likeliho9d ofsecuringleniency should a guilty plea be offered and accepted. Considerations like these frequently present 14im,ponderable questions for which there are no Gertain answers; judgments may be made·that in the light oflater·events seem improvident, although they were perfectly sensible at the time." The rule that a plea mustbe intelligently made .to be valid does not require that a plea be vulnerable to later attack ifthe defendant did not correctly assess every relevant factor enteringinto his decision. A defendant.is not entitled to withdraw his plea merely because he discovers long afterthe pleahas been accepted that his

. calculus misapprehended the quality ofthe State's case. 

### Brady, 397 U.S. at 756-57
. Given the weight ofthe evidence, and the trial court's superiorposition from which to weigh that**~vide,nce,** we hold the trial court did not comrriit clear
errorwhen it ruled that the Appellant entered his plea "freely, knowingly, intell!gently, and voluntarily." 

### B. The Trial Court did not abuse its discretion in denying Rivera's motion to withdraw his guilty plea. "After finding thatAppellant's pleawas voluntary, a trial court's denial of. •\

.

. . a defendant's motion to withdraw a guilty plea is**reviewe~** for abuse ofdiscretion." 

### Edmonds, 189 S.W.3d at 570 (citing 

### Rodriguez, 87 · S.W3d at 10). "The test for abuse ofdiscretion is whether the trialjudge's decision was arbitrary, unreasonable, unfair, orunsupported by sound legal principles." 

### Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). In this case, the trial court held an evidentiaryhearing during which
. Rivera had an opportunityto relay all relevant information to the court .
. . , regarding his motion to withdraw his**pie~.** After careful consideration ofthe totality ofthe circumstances surrounding the guilty plea, the courtwas satisfied that the "Defendantfreely, knowingly, intelligently, and voluntarily

. , entered a plea ofguilty." There are no valid grounds to assert that the trial 

### .15court's "decision was arbitrarj, unreasonable, unfair, orunsupported by sound legal pnnciples." English, 993 S.W.2d at 945. Therefore, the trial court did not abuse its discretion in denyingRivera's motion to withdraw his plea. The court
was operatingwithin its soundlegal discretion when it made the determination that ·Rivera's guiltypleawas in fact voluntary,**an~,** as such, binding on Rivera.
III. CONCLUSION For the foregoing reasons, we affirm Rivera's convictions and corresponding sentences.**Al~itting.** All concur. \ .
COUNSEL FORAPPELLANT: Robert Chung-HuaYang Assistant Public Advocate Appellate Division·
COUNSEL FORAPPELLEE: AndyBeshear Attorney General OfKentucky ThomasAllen Van De Rostyne AssisstantAttorney General

16