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 NOT TO BE PUBLISHED OPINION 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· THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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· THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE 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

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UNPUBLISHED KENTUCKY APPELLATE DECISIONS, ·.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 

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BY THE COURT .SHALL BE SET OUT AS AN UNPUBLISHED 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NOT TO BE PUBLISHED 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 20 l 6-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 of incest, three counts of first-degree s.odomy (victim 

under twelve years of age), two counts of first-degree sexual abuse (victim 

under tWelve years of age), and orie count of distribution of obscene matter to a 

niinor. These charges arose from allegations that Rivera had engaged in 

,. multiple sex acts with two of his daughters, eight-year-old Jane and six-yearold Suzie. I Rivera ultimately accepted a plea agreement, pleading guilty to 

incest, sodomy, andsexual abuse. After entering his plea (but before the 

1 We have changed the names of all minors in this Opinion to protect their . . 

privacy .. 
sentencing hearing) Rivera attempted to withdraw it based on the alleged ' . . 

deficient performance of his counsel. The trial court denied this motion and 

sentenced Rivera to twenty-five years' imprisonment in accordance with the 

·plea agreement.· 

Rivera now appeals as a matter of right, Ky. Const. §I 10(2)(b), arguing 

that his plea was not voluntarily, knowingly, and intelligently made and that 

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

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

II. ANALYSIS . 

. Rivera asserts that the deficient performance of his·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 leading up to his 

plea. John Delany later acted as co-:-counsel and trial attorney for Rivera. The 

Commonwealth initially offered Rivera a plea deal with a thirty-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 purports it made a verbal 

offer.·of a twenty-five-year senten.ce to Mabjish. Rivera testified that Mabjish 

. ' ' 

waited several days to inform him of the twenty-five-year offer. By the time . 

Rivera knew about the ~ew offer, it was only six days before his trial was slatec;:l 

to begin-and only one day before the offer would expire. 

2 
Rivera ultimately accepted the plea. The trial court held a hearing in 

order to leave a record ?f whether Rivera had "a full understanding of what the . 

plea connote[d] and of its consequence·." Boykin v. Alabama, 395 U.R 238, 244 

(1969). Both Rivera's attorneys, MabJish and Delaney, were present at the· 

Boykin hearing. The trial judge conducted a thorough colloquy, making 

detailed and repetitious inquiries into Rivera's decision to plead guilty and 

pro.bing Rivera's understanding of the consequences of tpe plea. 

During the colloquy, Rivera stated under oath that his plea was free and 

voluntary. He affirmed that he 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 of time to discuss and explain the plea and its ramifications. 

Rivera confirmed his understanding of the sex offender registry and the 

r~qufrements of registering as a: sex offender. He also stated that he 

understood that, as a convicted felon, his rights would be restricted. He stated 

he was not under the influence of any drags or medications which migp.t· 

hamper his ability to make the decision to accept the·plea. 

-

Rivera did have two complaints during the colloquy. First, when the 

court asked if he was satisfied with the performance of his attorneys, Rivera 

. hesitated slightly before answering in the affirmative. When the trial judge 

asked Rivera to explain the hesitation, Rivera stated that he wa:s upset that he 

had only met with 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 

3 
single meeting with his trial attorney, Delany._ However, Rivera confirmed that,,-

he had met with. Mabjish over the course of the case and had spoken to h.im on 

the telephone. Rivera affirmed his belief that 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's just this last-minute .offer." 

At this point, the trial judge 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 minor victims) would 

be flying in from out of state if Rivera 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 trial judge 

then asked Rivera how !1e .wished to proceed. Rivera answered, "I already · 

agreed to it, let's move forward." The judge asked Rivera if there was anythin_g 

his counsel had left unattended or if there was anything else Rivera needed 

from the court pefore entering his plea. Rivera responded that he was entering 

the plea of his own volition. Rivera indicated he took his attorneys' word that 

all relevant matters had been attended to, and that his attorneys had 

discussed everything relev~t to his decision to plead with him. Rivera 

·explained to the trial court that he believed the .plea agreement was the best 

way to resolve. this case, that he did not wish to face a jury trial, and that the 

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

' . to accept the plea. 

Rivera did not enter an Alford. plea, though under North Carolina v. 

Alford, "An accused may voluntarily, knowingly,_ and understandingly consent ~ 

to the imposition of a .prison sentence even though he is unwilling to admit 

participation in the crime, or even if his guilty plea contains a protestation of 

/C 

innocence, when [the defendant] intelligently concludes that his interests 

require a guilty plea and the record strongly evidences guilt." 400 U.S. 25, 25-

\ 

26 (U.S. 1970). Rather, Rivera admitted the factual allegations underlying each 

of the offenses to which 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 of the charges to which he had previously 

l 

.plead_ed, and claimed that his attorneys' defit::ient perforinance coerced him into 

accepting the plea agreement involuntarily. Rivera claimed that his counsel 

had "materially misrepresented 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 of the 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. 

5 
First, Rivera objected to the twenty-four-hour timeframe he had to consider the 

final plea agreement. Second, Rivera claimed his attorneys misrepresented two 

key pieces of information to him. ·Third, Rivera complained that Mabjish had· 

only had two meetings with him over the course of the year he represented 

Rivera. 

After the evidentiary hearing, the trial court issued a written order 

denying Rivera's request to withdraw his guilty plea. The trial court found that 

Rivera ~freely, knowingly, intelligently, and voluntarily entered a plea of guilty." 

The Kentucky Rules of Criminal Procedure require a trial court accepting 

a plea to determine "that the plea is made voluntarily with understanding of 

the nature of the 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 intelligent before it may be accepted. Boykin, 395 U.S. at 241-

42. "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." 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 of the tri~ court, a defendant is entitled to a hearing on such 

a motion whenever it is alleged that the plea was 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 order to succeed on a motion to withdraw a plea under RCr 8.10, "the 

movant must allege with particularity specific facts which, if true, would render 

the plea involuntary." Commonwealth v. Pridham, 394 S.W.3d 867, 874 (Ky. 

2012). As the Supreme Court of the United States has held: 

A plea of guilty entered by one fully aware of the direct consequences, 

including the actual value of any .commitments made to him by the 

court,_ prosecutor, or his own counsel, must stand unless 'induced by 

threats (or p'romises to discontinue improper harassment), 

misrepresentation (including unfulfilled or unfulfillable proμiises), or 

perhaps by promises that are by their nature improper as having no 

proper relationship to the prosecutor's business (e.g .. bribes) 

Brady 397 U.S. at 755. 

Therefore, in determining whether the trial court .erred in denying 

Rivera's motion to revoke his plea, we must first determine whether Rivera's 

plea was voluntary. "If a guilty plea is found to have been entered 

involuntarily, considering the totality of the_ circumstances, a, trial court must 

grant a defendant's motion to withdraw the plea. This inquiry is inherently 

fact-sensitive, thus this Court reviews 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 of voluntariness related to the alleged deficiency in counsel 

required the trial cm.irt to determine if Rivera 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 of professiqnally · 

competent assistance; and (2) that the deficient.performance so . . 

seriously affected the outcome of the plea process that, but for 

the errors of counsel, th<:!re is a reason,able probapility that the 

defendant would not have pleaded guilty, but would 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 other words, the trial court's inquiry into allegations of ineffective 

. . . 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 probably have won" and "whether counsel was so thoroughly 

ineffective that defeat was snatched from the hands of probable 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 of involuntafi.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 court found Rivera's arguments 

unpersuasive. The court found that none of Rivera's assertions, even if taken· 

as true, acted to negate the voluntarit:J.ess of his 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-leaving him with only twenty-four hours to decide), the trial court 

reviewed the events going back to Rivera's indictment. Rivera conceded that 

the Commonwealth had offered him a thirty-year deal more than a year before,. 

8 
and 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 of twenty-five years . 

. Here, Rivera was faced with a choke on the eve of trial. On one hand, he 

could accept a slightly better offer (twenty-five years) than the thirty-year offer 

. . 

he had been considering for more than a year. Under that offer, the 

Commonwealth would dismiss two counts of first-degree sodomy, one count of 

first-degree sexual abuse, and one count of distribution of obscene matter to a 

minor. In the alternative, Rivera could go to trial on alLcounts and charges 

and, if convicted, face sentences of twenty-years' to life imprisonment on each 

Class A felony. No doubt a choice between two harsh alternatives is not a 

pleasant choice. However, dissatisfactfon with alternatives available to a 

defendant ·does not render the decision involuntary. ~ivera's frustration with 

being presented with such a decision was apparent at the Boykin hearing, 

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 agreement rather than face a 

. jury trial and a potentially harsher sentence. .In fact, at his Boykin hearing, 

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

. .• 

likelihood of a lengthier prison sentence. Rivera made a choice between 

reasonable alternatives when he chos~ to accept the plea agreement . 

. . While it would 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 of probable victory." Foley, 17 S.W.3d at 

884; 

Rivera's second assertion concerned two pieces of information he felt his 

counsel had failed to share with him. First, Rive:r;_a claimed to have discovered, . 

post-plea,· that his sister would have given. testimony at trial that differed from 

what h~ w~s originally told. Second, he asserted there were disc:;repancies 

between the summary of Suzie's interview with 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 it would 

have been. As a frame of reference, we note that the .alleged abuse was brought 

to light when Jane'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 that jane's grandmother told Mounce that Jane 

independently wrote the letter describing sexual abuse. Rivera claimed that he 

later learned through a conversation with Mounce that sh~ would have actually . 

testified that Jane'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 of Mounce's actual intended 

testimony. 

10 

• I 
During the hearing, Rivera's conflict counsel attempted to play an audio 

recording of himself speaking with Mounce on the telephone. ·~he prosecutor 

objected to the tape as unauthenticated hearsay, and wondered why Mounce, a· 

local resident, had not appeared at the hearing in person. The judge 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 in part on whether Rivera can prove his trial counsel failed to 

properly investigate Jane'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 court properly excluded the statement as hearsay. 

·The statements at issue were not "made by the declarant while testifying 

at the trial or hearing," 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. Of course, "[h]earsay is not admissible except as provided. by 

[the Kentucky Rules of Evidence] or by rules of the 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 of the 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 of the 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 if we 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 of 2013 dμririg which she learned for the first time that 

Jane's grandmother had prompted Jane to write the. letter and·place it 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 it was her idea for Jane to write the letter to Jesus. 

Mounce clarified that this is what she meant when she indicated that Jane's 

grandmother "helped" her with the letter containing allegations of sexual 

abuse. Mounce went on to state that her memory of the conversation was 

quite vague, but she did affirm that she had the impression that Jane's 

grandmother was present when Jane drafted the letter. Mounce offered very 

few specific facts in support of her general impressions·. 

The second piece of information 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 of Suzie's statement, he 

. 12 
claims that he was unaware that a video of her 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 of a potential trial. Rivera has not made a 

showing before any court of how these discrepancies would materially alter or 

negate the charges against him. Given the nature of these 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 counsel was ineffective due to the limited 

nature of their meetings. This issue was also addressed in the hearing. Rivera ' . . . 

asserted a general dissatisfaction with Mabjish, who he claimed only visited 

him twice and had one telephone conversation with him.- .The prosecutor 

pointed out that Mabjish was on record at the Boykin hearing .as saying that he 

had conducted all reasonable preparations for trial. Rivera had affirmed the 

voluntary and intelligent nature of his plea in the Boykin hearing. He 

13 
expressed his satisfaction with his counsel, and affirmed that the terms· of the 

plea~ and the ramifications of acceptance, 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 of this into account, 

the trial court found that Rivera's plea was voluntary. 

Again, we examine a trial court's findings of fact for clear error. A finding 

of fact is clearly erroneous only if it is manifestly against the great weight of the ~ . . . 

evidence. Frances v. Frances, 266 S~W.3d 754 (Ky. 2008). We acknowledge 

that "the validity of a guilty plea is determined not by reference to some magic . · 

incantation recited at the time it is taken but from the totality of the 

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 himself wheμ he chose to enter his plea. 

Rivera was facing a jury tri8.I the next week iri" which he. was accused of 

sexually abusing his 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 of incest, 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 testimony would have on a jury verdict. As 

the Supreme· Court of the United States has opined: 

Often the decision to plead guilty is heavily influenced by the 

defendant's appraisal of the prosecution's case against him and by 

the apparent likeliho9d of securing leniency should a guilty plea be 

offered and accepted. Considerations like these frequently present 

14 
im,ponderable questions for which there are no Gertain answers; 

judgments may be made· that in the light of later· events seem 

improvident, although they were perfectly sensible at the time." The 

rule that a plea must be intelligently made .to be valid does not 

require that a plea be vulnerable to later attack if the defendant 

did not correctly assess every relevant factor entering into his 

decision. A defendant.is not entitled to withdraw his plea merely 

because he discovers long after the plea has been accepted that his 

. calculus misapprehended the quality of the State's case. 

Brady, 397 U.S. at 756-57 . 

Given the weight of the evidence, and the trial court's superior position 

from which to weigh that ~vide,nce, we hold the trial court did not comrriit clear 

error when 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 that Appellant's plea was voluntary, a trial court's denial of. 

•\ . . . 

a defendant's motion to withdraw a guilty plea is reviewe~ 

for abuse of discretion." Edmonds, 189 S.W.3d at 570 (citing Rodriguez, 87 · 

S.W3d at 10). "The test for abuse ofdiscretion is whether the trial judge's 

decision was arbitrary, unreasonable, unfair, or unsupported by sound legal 

principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). 

In this case, the trial court held an evidentiary hearing during which . 

Rivera had an opportunity to relay all relevant information to the court . . . , 

regarding his motion to withdraw his pie~. After careful consideration of the 

totality of the circumstances surrounding the guilty plea, the court was 

satisfied that the "Defendant freely, knowingly, intelligently, and voluntarily 

. , 

entered a plea of guilty." There are no valid grounds to assert that the trial 

.15 
court's "decision was arbitrarj, unreasonable, unfair, or unsupported by sound 

legal pnnciples." English, 993 S.W.2d at 945. Therefore, the trial court did not 

abuse its discretion in denying Rivera's motion to withdraw his plea. The court 

was operating within its sound legal discretion when it made the determination 

that ·Rivera's guilty plea was 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 FOR APPELLANT: 

Robert Chung-Hua Yang 

Assistant Public Advocate 

Appellate Division· 

COUNSEL FOR APPELLEE: 

Andy Beshear 

Attorney General Of Kentucky 

Thomas Allen Van De Rostyne 

Assisstant Attorney General 

16