RENDERED APRIL 30 2020TO BE PUBLISHED

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STEVEN ZAPATAAPPELLANT

ON APPEAL FROM JEFFERSON CIRCUIT COURTV HONORABLE MITCH PERRY JUDGENO 13 CR 002075

COMMONWEALTH OF KENTUCKYAPPELLEE

OPINION OF THE COURT BY JUSTICE WRIGHT

AFFIRMING

A Jefi'erson County Grand Jury indicted Steven Zapata for one count ofmurder for killing his wife, Tondefia. On October 28, 2015, Zapata entered aguilty plea pursuant to North Carolina :2 Alford 91 S Ct 160 (1970) in whichhe maintained his innocence while acknowledging the Commonwealth hadsufl'icmnt evidence to convict him On November 5, Zapata’s court appointedcounsel filed a motion to withdraw his guilty plea. On November 9, Zapatamailed his own motion to withdraw the plea, alleging deficienc1es 1nrepresentation The trial court denied both motions and Zapata appealed InZapata v Commonwealth, 516 S W 3d 799 (Ky 2017) this Court vacated theJudgment and order denying Zapata’s motion to withdraw the guilty plea andremanded the case for further proceedings

On remand, the trial court permitted Zapata’s newly appomted conflictcounsel time to consult with Zapata, review prior counsel’s litigation file, anddetermine if Zapata wished to continue with his guilty plea or proceed with anew motion to withdraw the plea Zapata’s new counsel filed a moton towithdraw the guilty plea

The trial court conducted an evidential-y hearing on the new motion towithdraw the guilty plea Zapata and his previous counsel, Angela EHeman,testified at the hearing After additional briefing, the trial court denied Zapata smotion to withdraw his guilty plea. The trial court sentenced Zapata to 24years’ imprisonment in accordance with the plea agreement He now appealsto this Court as a matter of right Ky Const § 110(2)(b)

Zapata raises two main issues on appeal 1) the trial court erred by notpermitting him to withdraw his guilty plea (due to (a) ineffective assistance ofcounsel, (b) Elleman’s disquahfying conflict of interest, and (c) “Zapata’sincorrect belief of his absolute right to withdraw his guilty plea at any timeprior to sentencing”) and 2) even assuming the plea was voluntarily entered,the trial court abused its discretion when it denied his motion to withdraw hisguilty plea. After careful review, we affirm the trial court

I BACKGROUND

Zapata and his wife, Tondelia, had been married for three months whenshe was found strangled to death in the c0uple’s shared apartment Instatements to police, Zapata claimed Tondelia attacked him with a knifeZapata claimed that, in response to Tondelia’s attack, he punched her multiple

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times and had his hands around her throat According to Zapata, Tondeliawas alive when he left the apartment. Zapata was indicted for her murder

Zapata was examined for competency to stand trial by the KentuckyCorrectional Psychiatric Center (KCPC) and by his court appointed defensecounsel’s retained expert Following a hearing, the trial court determinedZapata was competent After that ruling by the trial court Zapata filed amotion to represent himself as hybrid counsel The trial court conducted ahearing pursuant to Faretta v Califomia 95 S Ct 2525 (1975) 1 and permittedZapata to act as hybrid counsel

Zapata and the Commonwealth reached a negotiated plea agreement andappeared in court to enter the plea On October 28, 2015, Elleman and Zapatanegotiated a reduction in the agreed sentence recommendation for murder from25 years to 24 years and Zapata entered an Alford plea Paperwork filed inconjunction with the guilty plea included a “Motion to Enter Guilty Plea” form

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1 me United States Supreme Court set out the requirements for an accused torepresent himself at trial in Fanatta, 4-22 U S at 835 “In Order to represent himself,the accused must ‘knowingly and intelligently forgo those relinquished benefitsAlthough a defendant need not himself have the skill and experience of a lawyer inorder competently and mteIligently to choose self representation, he should be madeaware of the dangers and disadvantages of self representation, so that the record willestablish that he knows what he is doing and his choice is made With eyes open ”)(internal citations and quotation marks omitted)Section 1 1 of the Kentucky Constitution also addresses this issue, stating“[ijn all criminal prosecutions the accused has the right to be heard by himself andcounsel ” Our predecessor Court concluded this means “an accused may make alimited waiver of counsel, spectfying the extent of services he desires, and he then isentitled to counsel whose duty will be confined to rendering the specified kind ofservices (within, of course, the normal scope of counsel services) ” Wake v Barker,514 S W2d 692 696 (Ky 1974)

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signed by Zapata with an unSigned “Certificate of Counsel ” The trial court

conducted a colloquy pursuant to Raglan 0 Alabama 395 U S 238 (1969)

which requires trial Judges to ensure guilty pleas are made intelligently,

knowingly, and voluntarily During the Boylcm colloquy the trial court

questioned Zapata about the rights listed in the motion, but did not ask

Elleman any questions about the certificate of counsel The trial court

accepted the plea and set the case for sentencing

A few days later, Elleman filed a motion to withdraw Zapata’s guilty plea

with no reasons specified in support of the motion Zapata filed his own

motion to withdraw the guilty plea claiming (among other things) that he had

been deceived by Elleman’s incorrect advice that he could withdraw his guilty

plea any time before sentencing, “no problem ” According to Zapata, the deceit

rendered his plea involuntary

Despite Elleman’s aclmowledgment of the awkward position created by

the allegations made by Zapata in the motion, the trial court did not appointconflict counsel, noting that Zapata was acting as hybrid counsel The trial

court heard arguments, took no proof, and denied the motions to withdraw the

plea Zapata was sentenced pursuant to the terms of the plea agreement

In Zapata’s original appeal, this Court found an actual conflict existed

between Zapata’s interests and Elleman’s interests over the motion to withdraw

the guilty plea The case was remanded, and the posture of the case was

returned to the point in time when the plea had been accepted, but before the

motion to withdraw the plea had been made On remand, conflict counsel was

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appomted, a new motion to withdraw the plea was filed, and the trial court

denied the motion and sentenced Zapata according to the plea agreement

11 ANALYSIS

A The trial court did not err in denying Zapata’s motion to withdrawhis guilty plea due to ineffective assistance of counsel, counsel’salleged conflict of interest, or Zapata’s incorrect belief that he couldWithdraw his guilty plea at any point prior to sentencingZapata first argues that the trial court should have granted his motion to

withdraw his guilty plea “in View of his former public defender’s ineffectiveness

in the plea negotiations and her disqualifying conflict of interest as well as

Zapata’s incorrect belief of his absolute right to withdraw his guilty plea at any

time prior to sentencing ” We will address each of these issues in turn

1 Ineffective assistance ofcounsel

Zapata claims his counsel was inefi'ective during plea negotiations and

that the trial court erred in denying his motion to withdraw his plea on these

grounds Zapata asserts that EHeman both essentially abandoned his

representation during plea negotiations and told him that he could Withdraw

the plea agreement at any tune before sentencmg He argues this essential

abandonment of representation and incorrect advice amounted to ineffective

assistance of counsel requiring the trial court to grant his motion to withdraw

his plea

At the outset, we note

[ulnder either [RCr 8 10 or RCr 1 1 42] to be entitled to relief onthat ground the movant must allege with particularity specific factswhich, if true, would render the plea involuntary under theFourteenth Amendment’s Due Process Clause, would render theplea so tainted by counsel’s ineffective assistance as to violate the

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Sixth Amendment, or would otherwise clearly render the pleainvalid

Commonwealth v 1’71de 394 S W 3d 867 874 (Ky 2012) On appeal “wereview the trial court’s factual findings only for clear error, but its applicationof legal standards and precedents de novo ” Id “If the trial judge’s findingsof fact in the underlying action are not clearly erroneous, Le , are supported bysubstant1al evidence, then the appellate court’s role is confined to determiningwhether those facts support the trial judge’s legal conclusion ” Commonwealthv Delaney 20 S W 3d 471 473 74 (Ky 2000) Mere doubt as to thecorrectness of a finding would not justify reversal, and the appellate court doesnot consider and weigh evidence de novo However, if a finding is withoutadequate evidential-3' support , the reviewing court may regard it as clearlyerroneous ” Commonwealth v Harrelson, 14 S W 3d 541, 548—49 (Ky 2000)

Zapata’s claims regarding his abandonment by counsel repeatedly returnto the fact that Elleman had failed to Sign the Certificate of Counsel” locatedon page 2 of the Motion to Enter Guilty Plea ” The Certificate of Counsel onthat form reads

1 To the best ofmy knowledge and belief the defendantunderstands the allegations contained in the indictmentand/or any amendments thereto I have fully discussedwith the defendant the charges and any possible defensesto them and I believe that he/she fully understands thecharges and possible defenses I have reviewed with thedefendant the attached “Commonwealth’s Ofl'er on a Pleaof Guilty” and the Foregoing “Motion to Enter a Plea ofGuilty,” and I believe he/she understands thesedocuments

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2 To the best of my howledge and belief, his[her plea of“GUILTY” is made freely, knowingly, mtelligently andvoluntarily I have fully explained the defendant 8constitutional rights to him/her and I believe that he/sheunderstands them

3 The plea of “GUILTY” as ofl'ered by the defendant iscon31stent with my advice to him/her, and I recommendto the Court that his/her plea he accepted

The reasons for Elleman’s failure to Sign the form were extenswelyexplored during the evidential-y hearing According to Elleman, she did notsign the certificate because she disagreed with the trial court’s ruling that

Zapata was competent to stand trial following his examination at the KentuckyCorrectional Psychiatric Center (KCPC) Zapata raises no issues in this appealconcerning that competency ruling However, according to Elleman, Zapata’scompetency remained an Issue for her—even after the trial court had ruledotherwise At the plea withdrawal hearing on remand, Elleman said, “I didn’tSign [the certificate] because my personal opinion was that Mr Zapata wasn’t

competent ”

Zapata’s conflict counsel asked Elleman if her failure to Sign the

certtficate Was because everything listed in the certificate was not true

including that the plea was voluntarily entered Elleman responded that her

concerns over Zapata’s competency extended over the entire guilty plea. Afterreviewing the plea colloquy transcript, Elleman acknowledged the trial courtdid not ask any questions about the certification during the Boykzn hearing onthe plea and Elleman did not inform the court of her concerns

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Zapata argues that, “[a] signed and dated Certificate ofCounsel is a

requirement for a defendant entering a guilty plea.” He insists that Elleman’sfailure to Sign the form is indicative of the fact that she had abandoned her

client during the plea negotiations and he was unrepresented at that stage oftrial He refers to no rule of procedure, rule of evidence, or case authority thatrequires counsel’s signature on this form before a guilty plea may be acceptedUnder the facts and Circumstances of this case, we decline to hold either that a

signed certificate was a requirement for the entry of Zapata’s guilty plea or that

it indicates E11eman abandoned her client.

Zapata goes so far as to allege that “[t]he failure of a trial judge to elimt

this information [contained on the form] from counsel via either the form or

questioning renders theplea involuntary ” (emphasis added) Again,

Zapata directs us to no legal authority making such a signature or inquiry by

the trial court mandatory for a finding of voluntariness We decline to adopt

such a position today

The trial court determined the guilty plea was voluntary based on the

totality of Circumstances present in this case In its order, the trial court

stated

Trial courts are in a unique position when it comes to theobservation of criminal defendants Over the course of a case,from indictment to finaljudgment or acquittal, a Court observeshow defendants interact with their attorneys, howr they participatein their own defense, and their bearing in listening and respondingto the Court In the case of Steven Zapata, this Court had theoccasion to observe him on no fewer than twenty occasionsDuring the two and a half year pendency of Zapata’s case, thisCourt observed on multiple occasions that Zapata was as savvy,smart, and sophisticated as any Defendant who has appeared

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before this Court Nothing that was raised at the evidentiaryhearing concerning Zapata’s motion to Mthdraw his guilty pleachanged those observations

Zapata, in his capacity as defendant and hybrid counsel,participated meaningftu in his own defense He communicatedon numerous occas10ns with this Court, demonstrating anunderstanding of the processes and procedures which tookplace,and in fact meaningfully partiapaungm them At each conferencebetween Zapata’s election to represent himself in a hybrid counselSituation and his final guilty plea, Zapata reaifinned his desire tocontinue representing himselfin CQI'IJUI‘ICHOI‘I with EllemanZapata ofl‘ered spirited arguments in his own defense, both to thisCourt and apparently in negotiations with the Commonwealth’sAttorney In fact, on the day of the scheduled plea hearing andwith the assistance of lineman, he successfully negonated aflirther One (1) year reduction in total sentence

Included in the more than twenty court appearances noted in the trial courtorder, a review of the record discloses that two appearances were competencyhearings, one was a Faretta hearing, and one a Boykm plea colloquy The trialcourt observed Zapata when he testified at the heating on the motion to

withdraw his plea There were significant interactions between Zapata, his

attorneys, the Commonwealth, and the trial court in a variety of hearings

Zapata’s involvement in these hearings contrasts with more limited events suchas an arraignment, where “yes or no” answers or “state your full name” are themore typical interacnons between a trial court and a defendant

The opportunities this trial court had to observe Zapata and draw

conclus1ons fiom those observations, support the tn'al court’s findings A

signed certificate of counsel would have been evidence of the voluntariness ofthe plea (as it would have provided Elleman’s opinion that Zapata voluntarily

entered his plea), but the absence of the signed certificate is not proof that the

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plea was involuntary A failure to sign or testify is an absence ofproof rather

than proof of anything

As this case demonstrates, the better practice is for trial courts to review

both motions to enter guilty pleas and certificates of counsel with a defendant’s

counsel during the plea colloquy Any issues or concerns that counsel has can

be resolved, and a clear record established In this case, for whatever reason,

the trial court did not ask counsel questions about the certificate of counsel

While that did not, in and of itself, render this plea invalid, the better practice

for all concemed in future cases is for the trial court to take the time to ask

counsel questions about the plea and the documents filed in conjunction

therewith

We also consider the actual words Zapata spoke in the Boykzn plea

colloquy “Solemn declarations in open court carry a strong presumption of

verity Blaclcledge v Allzson, 97 S Ct 1621 1629 (1977) However we do not

View those declarations in isolation “In other words, the validity of a guilty

plea is determined not by reference to some magic incantation rec1ted at the

time it is taken but from the totality of the circumstances surrounding it ”

Kotas v Commonwealth, 565 S W 2d 445 447 (Ky 1978) (Citing Brady :2

United States 90 S Ct 1463 (1970)) We have directed trial courts

In cases where the defendant disputes his or her voluntaiiness, aproper exerase of this discretmn requires trial courts to cons1derthe totality of the Circumstances surrounding the guilty plea andjuxtapose the presumption of voluntariness inherent in aproperplea colloquy with a Strickland v Washmgton[ 104 S Ct 2052(1984),] inquiry into the performance of counsel

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Bronk v Commonwealth, 58 S W 3d 482 486 (Ky 2001) [footnotes omitted)

In applying Strickland to plea agreements, we have quoted the Court of

Appeals statement that.

“A showing that counsel’s assistance was ineffective in enabling adefendant to intelligently weigh his legal alternatives in deciding toplead guilty has two components (I) that counsel made errors soserious that counsel’s performance fell outside the wide range ofprofessionally competent assistance; and (2) that the deficientperformance so seriously aflected the outcome of the plea processthat, but for the errors of counsel, there is a reasonable probabihtythat the defendant would not have pleaded guilty, but would haveinsisted on gomg to trial "‘

Bronk, 58 S W 3d at 486 (quoting Sparks v Commonwealth, 721 S W 2d 726

727 28 (Ky App 1986))

Zapata argues the trial court limited his ability to inquire about

ineffective ass:stance of counsel issues during the hearing on the new motion

The record reveals the trial court (on one occasion) did tell Zapata’s counsel

that the hearing was not being held to rule on a general ineffective assistance

of counsel motion Instead, the trial court directed counsel to focus on those

issues connected to the guilty plea and the motion to withdraw the guilty plea

Spemfically, the trial judge stated, “[t]here is no 1201‘ 1 1 42 motion on the

table ” In response, Zapata’s counsel argued vigorously that ineffectve

assistance was an issue involved in the motion to withdraw the guilty plea We

note the trial court did not prevent counsel during the remainder of the hearing

from asking questions about ineffechve assistance of counsel as it related to

the guilty plea or the motion to withdraw the plea. After asking counsel to take

a deep breath and calm down, the trial court directed him to proceed The trial

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Judge concluded by saying “[a]sk whatever question you are curious about to

Ms E11eman ” (emphasis added ) In telling Zapata’s counsel to ask “whatever

question” he wanted, the trial court lifted any limitation regarding questioning

as to inefiective assistance of counsel.

Zapata asserts this single (and later revoked) limitation by the trial court

afi‘ected his ability to present facts concerning ineffective assistance of counsel

through testimony As noted above, after a thorough search, we found no

other trial court directives in the record that limited his questioning nor does

Zapata cute to any others It appears the trial court inihally intended to avoid a

hearing on issues generally related to ineffective assistance of counsel and

sought to keep the focus on the guilty plea and the motion to withdraw the

guilty plea As noted, the trial court withdrew that restriction and allowed

Zapata’s counsel to question E11eman Following the exchange between

Zapata’s counsel and the trial Judge, it would have been unreasonable for

Zapata’s counsel to believe he could not ask E11eman questions to support an

inefi'ective assistance of counsel claim relating to the plea withdrawal

In response to questions at the hearing, E11eman testified that Zapata

expressed regrets about entering the plea when he called E11eman asking her to

file a mohon to set aside his plea Regrets after entering a plea are not

uncommon, especially when the plea bargain includes the recommendation for

a substantial sentence (as was the case herein) However, regrets alone do not

require that a trial court allow a defendant to withdraw his guilty plea.

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As noted above, on the day he entered his guilty plea, Zapata asked theCommonwealth to reduce the sentencing recommendation by one year Zapataalso insisted on an Alford plea and the Commonwealth agreed Elleman wassuccessful in obtaining both the reduction in the sentencing recommendationand the Alford plea Zapata requested

While the trial court did not use the words “ineffective assistance ofcounsel,” it did efl‘ectively address Zapata’s claim The trial court summarizedwhat Zapata was asking the trial court to do and clearly rejected that request

Essentially, Zapata’s argument is that his court appointedattorney Angela EHeman misled him by advising him that hecould withdraw his guilty plea at any time prior to final sentencingAnd that further, she continued this deceit by lying under oathduring evidentiary hearings in this case For this Court to agreewith Zapata’s arguments, it is required to believe not only thatElleman misled Zapata regarding his ability to withdraw his plea,but that she also lied while under oath concerning that misleadingadvise The Court simply does not believe those assertions aboutEHeman, and rejects Zapata’s arguments in their entirety

A review of the record reveals a substantial basis supporting the trialcourt’s factual findings and, therefore, those findings are not clearly erroneousHaving accepted those factual findings, we note that the record supports thefinding that E11eman continued to represent Zapata throughout the pleanegotiation process Zapata had engaged the Commonwealth in pleanegotiations in his dual role as defendant and hybrid counsel

After this Court’s remand for a plea withdrawal hearing, Ellemantestified that once the trial court found Zapata competent, she had a choice toassist Zapata in his plea or assist him at trial Elleman said that Zapataindicated through his actions that he desired a plea agreement She testified

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the proposed plea was acceptable in light of the evidence she thought would be

presented at trial Elleman said, “I did not feel I had a viable defense that

would result in a not guilty or a lesser charge, so that’s why I recommended the

guilty plea.” Far from abandoning her client, E11eman assisted Zapata in

making a reasonable choice under the Circumstances Elleman carried out

Zapata’s wishes to the extent possible and assisted him in reducing the agreed

upon offer by one year on the day the plea was entered Elleman also obtained

the Alford plea Zapata sought

Furthermore, there is no reasonable possibility that but for the claimed

inefi‘ective assistance, Zapata would have chosen to go to trial and face higher

penalties of 20 to 50 years or life imprisonment A review of relevant facts

shows why this is so The cause of death in this case was strangulation—a

slow and violent method of inflictmg death Zapata then fled from the scene

and crossed state lines to avoid arrest In Zapata’s statements to the police, he

admitted everyflfing except that his wife was dead when he left the apartment

However, Zapata’s version of events makes no logical sense If it were true that

Zapata’s wife were alive when he left their apartment, then his wife would have

most likely survived bemg choked If someone is strangled and the pressure

ceases prior to death, the victim will likely start breathing again unless the

airway has been crushed This would simply not have been a valid defense at

trial At sentencing, the jury would have also been privy to Zapata’s extensive

criminal history (comprising numerous out of state felony convictions,

including one for aggravated rape)

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Under the facts of this case, we hold that there was no ineffective

assistance of counsel during plea negotiations, much less ineffective assistance

so substantial that it impacted the plea process Elleman did not “malkle

errors so serious that counsel’s performance fell outside the wide range of

professxonally competent ass1stance ” Bronk, 58 S W 3d at 486 (internal

quotations and citations omitted) But even assuming Elleman was ineffective

in her representation of Zapata, her alleged “deficient performance [would not

have] so seriously aflected the outcome of the plea process that, but for theerrors of counsel, there Is a reasonable probability that the defendant would

not have pleaded guilty, but would have msisted on going to trial ” Id

We afirm the trial court’s factual findings related to Zapata’s allegation

of Ineffective assistance, as they were not clearly erroneous For the foregoing

reasons, the trial court did not err in its refusal to allow Zapata to withdraw his

plea on grounds that Elleman’s assistance was inefi‘ectwe

2 Conflict ofInterest

In Zapata’s first appeal to this Court, we held “[t]here IS no doubt an

actual conflict wasted in this case Zapata’s counsel was placed in the

untenable position of defending her own interests which were adverse to her

d1ent[’]s Zapata 516 S W 3d at 803 The conflict we held crusted in that

case only extended to Zapata’s plea withdrawal hearing, in which he had made

allegations of deficiencies in Elleman’s representauon In the present appeal, ‘Zapata asserts that the conflict of interest casted even before the plea was

entered, thus rendering his plea involuntary

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Zapata argues on appeal that “Ms EHeman’s total disagreement with

Zapata’s election to proceed to trial as a hybrid defense team was for her a

conflict of interest that undermines the voluntariness of Zapata’s guilty plea ”

Zapata further states that even zealous advocates may be unaware of a

debilitating conflict of mterest.

During the Faretta hearing at which the trial court decided Zapata could

act as hybrid counsel, Elleman stated that she was concerned with the

possibility that Zapata may ask improper and unethical questions—or want her

to ask such questions Elleman testified that Zapata “had very strong beliefs

that witnesses should be asked questions that were not admissible or

relevant ” For example, E11eman was concerned that Zapata’s delusions about

her worlnng for the FBI and tampering with evidence could give rise to

improper questions Elleman was concerned that Zapata would ask queshons

he thought he had a basis to ask, but in reality, no hams casted She feared

such potential improper questions could undermine Zapata’s position with the

jury

E11eman described her concern about Zapata asking or expecting her to

ask witnesses improper questions as “much of the conflict going forward ”

Zapata now says that her words concerning a “conflict” were indicative of a

conflict of interest that denied Zapata adequate representation We disagree

Given the context of her statement, E11eman was clearly referring to the

“conflict” between her ethical responsibilities as an attorney and unethical

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questions Zapata, acting as hybrid counsel, may expect her to ask This is not

the type of disqualifying conflict our precedent recognizes

While we acknowledge that it was a case about a conflict of interest

arising from an attorney's former representation of a client, we find guidance in

the standard regarding disqualifying conflicts of interest set out in Marcum u

Scorsone 457 S W 3d 710 (Ky 2015) There we overruled prior precedent

requiring an attorney be disqualified for the mere appearance of mpropriety

Instead, we set out a new standard, to wit. “[bIefore a lawyer is disqualified ,

the complaining party should be required to show an actual conflict, notjust a

vague and possibly deceiving appearance of impropriety ” In the case at bar,

Zapata can Show no such actual conflict

Elleman tesufied that “When you co counsel with a client, there are

inherent difficulties with that relationship ” Among these difiiculues, Elleman

pointed to differing views about the strength of the case and overall strategies

that were In Zapata’s best interest We note that Elleman spoke with Zapata

on numerous occasions after the trial court granted his mouon to act as hybrid

counsel

Elleman voiced no concerns at the hearing that Zapata’s delusions

interfered with their discussions about which witnesses the defense would call,

which witnesses Elleman would cross examine or question on direct

examination, or Zapata’s dealsion about whether to testify In summary,

Elleman tesufied that although Zapata kept putting off making firm and final

decisions about trial roles for each of them, she did not indicate problems so

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severe they endangered the attomey client relationship or created an actual

conflict disqualifying her from representing her client Elleman said she

thought the issue of Zapata’s competency would have to be revisrced

“somewhere down the road ”

“An ‘actual conflict,’ for Sixth Amendment purposes, is a conflict of

interest that adversely infects counsel’s performance " Mickens v Taylor, 535

U S 162 172 n5 (2002) In that same vein this Court has stated

where the alleged conflict is raised at some later paint during postconviction proceedings, the standard set forth in Cuyler v Sullivan,446 U S 335 (1980) controls. That more stringentstandard requires the defendant to demonstrate both that aconflict existed and that it prejudiced him Le , that it adverselyaffected his counsel’s performance—in some cognizable way Id

Samuels v Commonwealth 512 S W 3d 709 712 13 (Ky 2017]

A review of the record does not support a claim that an actual conflict

existed, and much less that counsel’s performance was adversely affected by

any purported conflict

Disagreements between an attorney and her client over what questions to

ask witnesses, trial strategy, and strengths of a chent’s case are a familiar part

of the tnal landscape Those disagreements occur regardless of whether a

client has delusions or whether the client is acting as hybrid counsel Nothing

in the record supports that commumcanon was broken down between Eneman

and Zapata evincmg some actual conflict affecbng EHeman’s representation of

her client As noted above, after the trial court allowed Zapata to proceed as

hybrid counsel, visits, phone calls, and letters continued between Ellernan and

Zapata

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E11eman testified that because Zapata kept putting 011' final deusions

about how trial responsibilities were going to be divided, she was preparing as

if she were going to handle the entire trial Elleman’s demsion to prepare for an

entire trial was a prudent course of action absent a written agreement dividing

trial responsibilities The trial court required that a document listing the

separate trial responSIbilities for Zapata and E11eman be filed in the record, but

when Zapata entered the guilty plea, the trial court had yet to set a final

deadline for that document Without a final agreement reduced to writing, it

was entirely possible that Zapata might decide at the last minute he would nothandle anything at trial, or perhaps that he would handle only a minimal

amount It was equally possible Zapata might dec1de to handle most of the

trial, or even all of it. E11eman was obligated to be prepared for whatever

eventuality might occur Her trial preparation does not show any evidence of a

disquaan actual conflict

A conflict of mterest occurs when an attorney’s interests are at odds with

her client’s interests In Zapata’s previous appeal, this Court held that the trial

court should have appointed conflict counsel at the hearing on Zapata’s monon

to withdraw his guilty plea as Zapata alleged E11eman had provided incorrect

legal advice on which he based his deasion to plead guilty That is the kind of

actual conflict of interest that would disqualify an attorney from representing

her client However, Elleman’s concems over possible improper questioning of

witnesses by Zapata, her disagreement with Zapata acting as hybrid counsel,

and her disagreement with the trial court finding Zapata competent did not use

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to the necessary level of an actual conflict so as to require Elleman’s

disqualification from representing Zapata.

Lawyers routinely disagree with the decisions of their clients and the

decismns of hial courts These disagreements are everyday realities of

practicmg law Despite these disagreements, lawyers are charged with

protectlng their client’s interests Were we to hold that the simple

disagreement here created a conflict, lawyers would have to withdraw or seek

conflict counsel every time they disageed with a client’s demsion That is not a

reasonable or practical approach to the administration ofJustice—and not the

sort of disqualifying actual conflict envisioned by our precedent.

EHeman assisted Zapata in entenng the plea bargain Zapata, through

E11eman, improved the agreement to his benefit on the day he entered the plea.

Zapata (again through E11eman) convinced the Commonwealth to agree he

could proceed with an Alford plea There was no actual conflict of interest that

exhibited an adverse efi'ect on counsel’s performance and no prejudice to

Zapata. The trial court did not err in denying Zapata’s motion to withdraw his

plea on grounds of E11eman’s alleged conflict of interest

3 Mum’s incorrect beliefthat he could withdraw hisplea at anytime

Zapata next argues that the trial court and E11eman both failed to correct

his mistaken belief that he could withdraw his guilty plea at any time before

sentencing He asserts that he could not have entered the plea voluntarily,

knowingly, and intelligently while harboring this incorrect belief that he could

withdraw the plea The problem with Zapata’s assertion is that it has no basis

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In Kentuckyjurisprudence He would have us craft an entirely subjective rule

out of whole cloth that would look solely at an individual defendant’s assertions

concerning what he believed when entering a plea. If we were to do so, every

defendant would have grounds to Withdraw his plea agreement simply by

making an assertion that he did not properly understand some detail of the

procedures employed once the plea was entered

In Kentucky RCr 8 10 states in pertinent part that [a]t any time before

judgment the court may permit the plea of guilty to be withdrawn and a

plea of not guilty substtuted However, the only language from RCr 8 10

contained 1n Zapata’s motion to enter a guilty plea concerns Zapata’s options in

the event the trial court were to reject the plea agreement The only

cucumstance the paperwork identified in which a plea could be withdrawn was

if the trial court rejected the plea agreement Here, the trial court accepted the

plea agreement and that language is inapplicable Given the contents of

Zapata’s signed plea agreement form taken as a whole, his alleged belief that

he could withdraw his plea at any time before sentencing “no problem” was not

reasonable

We do not expect a trial court to disclose and discuss every possible

consequence of a plea during a Bowen plea colloquy That would be both

impossible and impractical Rather, “[t]he defendant need only be aware of the

(111801: consequences of the plea the trial court 18 under no consttutional

obligation to inform the defendant of all the possible collateral consequences of

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the plea Commonwealth v Thompson, 548 S W 3d 881 889 (Ky 2018)

(internal citations omitted)

Zapata stated during the Boykm colloquy that among other things he

understood there would not be a trial, he would not be cross examining

witnesses, he gave up the right to remain silent, and there would be no appeal

Zapata acknowledged he had read, reviewed, and signed the motion to enter a

guilty plea which contained a list of his rights It has long been the rule in this

Commonwealth that acknowledging the written guilty plea form containing a

defendant’s rights is suflic1ent “No cases are cited requiring ajudge to read

from the bench a defendant’s rights to a defendant who has already waived

those rights by written waiver, has acknowledged his signature thereto, and

has further acknowledged that he understood those rights ” Commonwealth v

Crawford 789 S W 2d 779 780 (Ky 1990) Although not lengthy (and as

noted, would have been improved by questions directed at Eneman concerning

the plea and the Certificate of Counsel), the colloquy in this case was clear and

unequivocal, and provided an opportunity for Zapata to ask questions

Zapata testified on remand at the plea withdrawal hearing that Elleman

told him he could withdraw his plea any time before sentencing, “no problem ”

Elleman teshfied she reviewed the motion to enter a guilty plea with Zapata

and she did not tell Zapata that he could withdraw his guilty plea any time

The two testimonies are at odds with one other

Elleman teshfied that if Zapata could withdraw the plea at any time as he

claimed, then there would be no need to enter a plea The trial court had

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ample opportunity to observe both Zapata and Elleman at the plea colloquy

and the remand hearing The trial court clearly chose to believe Elleman and

to disbelieve Zapata “The trial court had an opportunity to see the witnesses

and observe their demeanor on the stand, and recognition must be given to its

superior position to Judge their credibility and the weight to be given their

testimony Kotas 565 S W 2d at 447

Pointing to discrepancies in Elleman’s testimony, Zapata argues the trial

court erred in believing her testimony rather than his However, no matter how

vigorous the disagreement, the trial court is tasked with 9.0ng testimony and

making demsions regarding credibility The trial court had extenswe

experience with both Zapata and Elleman during the trial and was free to

utilize those prior interactions in determining credibility

Moreover, even though he was given the opportunity to ask questions of

the court, Zapata did not ask about the possible withdrawal of his plea before

sentencing IfZapata had any doubts before, he should have known from the

trial judge’s comments at the Boykm hearing that the plea, if accepted, ended

Zapata’s case The trial Judge made statements such as, that he was “holding

plea sheets indicating a resolution of the case,” and asked Zapata if he

“understood that a guilty plea is in lieu trial meaning, takes the place of a

trial, and ifI accept this here in a few moments, the case is over and you

cannot appeal this guilty plea Zapata indicated that he understood that the

case would be over if the trial court accepted his guilty plea The trial court

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and Elleman could not timely correct a misunderstanding ofKentucky law andprocedure by Zapata if they did not know about it

Elleman’s testimony indicates she did not know Zapata was under thebelief that he could withdraw his plea at any time Zapata and Elleman, actingtogether as hybrid counsel, failed to bring Zapata’s alleged belief to the

attention of the trial court If Zapata were to prevail on this claim, defendantscould claim after a plea that they did not know or understand a rule of

procedure, a statute, or a rule of evidence and because they claim they didnot know or understand the plea must be set as1de It is reasonable to expectthat if an issue is unclear to a defendant, he or she will either ask counsel or

take advantage of the opportunity the court provides during the Boykm

colloquy to ask questions and get the answer he or she needs Zapata’s

answers to the trial court’s questions in the Boykm colloquy in the context ofthe entire case belie his claim that he was under this mistaken belief regardingthe ability to withdraw his plea. He acknowledged to the trial court that heunderstood that his case would be “over” if the court accepted the plea and

E11eman testified that she had not told him that he could withdraw his plea atany tune before sentencing

In this case, the trial court found Zapata to be savvy and smart The

trial judge was in the best position to assess credibility The trial court’s

findings of fact were not clearly erroneous and it did not err in denying

Zapata’s motion based on his alleged mistaken belief about the court’s

discretion in allowing him to withdraw his plea

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B The trial court did not abuse its discretion in denying Zapata’smotion to withdraw his plea

Zapata asserts the trial court erred when it failed to exercise its

discretion under RCr 8 10 and set aside his guilty plea In making thisargument, Zapata restates his other arguments and then claims that even ifthe trial court properly found the plea was voluntary, the trial court shouldhave exermsed its discretion and allowed the plea to be Withdrawn

A plea may be withdrawn if the trial court, In its dweretion, permits thewithdrawal “[T]he rule makes clear that the trial court may permit thedefendant to withdraw even a valid plea. Under our rule, this latter decision isone addressed solely to the trial court’s sound discretion ” Pndham, 394

S W 3d at 885 “The test for abuse of discretion is whether the trial Judge’sdesiswn was arbitrary, unreasonable, unfair, or unsupported by sound legal

principles Goodyear Tire &Rubber Co D Thompson, 11 S W 3d 575 581

(2000) (Citing Commonwealth 2) English, 993 S W 2d 941 945 (1999))

Zapata seeks to set aside his guilty plea based on either incorrect advicefrom his attorney or his own misunderstanding that he could withdraw hisguilty plea at any tune He masts either of those reasons const1tute a “fair andjust reason ” The “fair and just reason” language is found In the American Bar

Assouation Criminal Justice Standards R 12 2 1(a) (1999) and in FederalCriminal Rules of Procedure 1 1(d)(2) (B) This is an attempt to create a newtest, not found in the Commonwealth's Rules of Civil or Criminal Procedure orjurisprudence In the Commonwealth, our Rules leave the withdrawal of avoluntary plea to the discretion of the trial court based upon the totality of the

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Circumstances in a case We trust our trial courts in making those

determinauons and exercising their discretion

In Pridham, 394 S W 3d at 885 the Appellant asked this Court for such

relief There, we stated

Cox would have us read into the rule a right of withdrawalany time a defendant establishes “a fair andJust reason” for it,provided that withdrawal would not unduly prejudice theCommonwealth, and he contends that his reason for wanting towithdraw his plea meets that standard Cf Fed R Grim Proc1 1(d)(2)(B) ( A defendant may withdraw a plea of guilty afterthe court accepts the plea, but before it imposes sentence ifthe defendant can Show a fair andjust reason for requesting thewithdrawal ”)

Cox did not present this claim to the trial court, and so itwas not properly preserved for our review We decline to address it,therefore, beyond observing that the denial of Cox’s motion towithdraw his plea was not a palpable error so as to entitle Cox toreliefunder RCr 10 26

Id

More recently, the Court of Appeals took up this issue in Blanton v

Commonwealth, 516 S W 3d 352 356 57 (Ky App 2017) That court

addressed the issue, stating

Blanton has requested that this Court apply the test forwithdrawing a guilty plea under Federal Rules of CriminalProcedure 11(d)(2) (13) as set forth in United States v Hockenberry730 F 3d 645 (6th Cir 2013) That federal rule permits adefendant to Withdraw his guilty plea if he “can Show a fair andJust reason for requesting the withdrawal ” However, theCommonwealth points out that “[t]he precise terms of Rule 1 1 arenot constltuuonally applicable to the state courts ” Roddy 1)Black, 516 F 2d 1380, 1383 (6th Cir 1975)

Id

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Assuming this issue was properly preserved below, we agree with theabove cited language in the Court ofAppeals’ Blanton decrsion and decline tochange the standard for withdrawing guilty pleas in Kentucky Our Rules ofCriminal Procedure set out a different rule entrusting plea withdrawal to thediscretion of the trial court A whole body of case law has developed aroundthis Rule and we will not upset that balance

Zapata further claims the trial court erred because, under the totality ofthe Circumstances, even without finding the guilty plea involuntary, the trialcourt abused its discretion Zapata argues remand is mandated and that

upon remand this Court must order the trial court to allow Zapata to withdrawhis guilty plea We disagree

“The essence of a discretionary power is that the person or persons

exercising it may choose which of several courses will be followed ” Franklin

Guy Ky U Malone 957 S W2d 195 201 (Ky 1997) ovenuled on other

grounds by Commonwealth v Horns 59 S W 3d 896 (Ky 2001) As we noted

above, the exercise of discrehon to allow for withdrawing a guilty plea is held bythe trial court After review of the record in this case, we hold that the trial

court did not abuse that discrehon in declining to allow Zapata to withdraw his

guilty plea.

III CONCLUSION

After careful review of the issues, we affirm the trial court’s denial of

Zapata’s motion to withdraw his guilty plea.

All sitting All concur

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COUNSEL FOR APPELLANT

Joseph V Aprile IILynch Cox Gilman as Goodman P S C

COUNSEL FOR APPELLEE

Daniel Jay CameronAttorney General of Kentucky

James Daryl HaveyAssistant Attorney General

Kenneth Wayne RiggsAssistant Attorney General

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