RENDERED: JULY 21, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0411-MR

ELIJAH AMBURGEY APPELLANT 

v. 

APPEAL FROM FRANKLIN CIRCUIT COURT

HONORABLE PHILLIP J. SHEPHERD, JUDGE

ACTION NO. 19-CR-00322

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: CALDWELL, DIXON, AND ECKERLE, JUDGES.

CALDWELL, JUDGE: Elijah Amburgey (“Amburgey”) appeals the Franklin 

Circuit Court’s denial of his motion to withdraw his guilty plea. We affirm.

FACTS

In 2019, Amburgey shot and killed Xavier Cochrum after a marijuana 

transaction disintegrated. He was indicted on charges of murder, assault in the first 
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degree, and wanton endangerment in the first degree.1 Following plea 

negotiations, Amburgey entered a plea to manslaughter in the second degree and 

assault in the second degree. The wanton endangerment charge was dismissed. 

Per the terms of the plea agreement, he was to serve concurrent sentences totaling 

ten (10) years’ imprisonment.

During the entry of the plea, the trial court conducted a colloquy with 

Amburgey to ensure his plea was knowing, intelligent, and voluntary. Following 

the trial court’s acceptance of the plea, Amburgey’s counsel requested that he be 

released on home incarceration pending sentencing. The trial court requested that 

counsel make the request in writing. 

Counsel filed a written motion, alleging that Amburgey would not 

have entered the plea without having been promised that he would be released on 

home incarceration until sentencing. The Commonwealth responded in writing, 

agreeing that it had promised not to object to the motion, but pointing out that it 

had no authority to ensure that Amburgey was released on home incarceration and

that it was up to the trial court to make that determination. At the hearing on the 

motion, the trial court pointed out that the written plea agreement did not include 

that term. Further, the trial court forwarded, the court was not a party to the 

1 Two other men were present for the ill-fated transaction. Ezavion Peyton was shot by 

Amburgey who also shot in the direction of Patrick Greenlee. 
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agreement and had not assented to imposing home incarceration. The trial court

later issued a written order denying the release. 

Following the denial of the motion for home incarceration, Amburgey 

filed a motion to withdraw his guilty plea, which was denied. He appeals that 

determination. 

STANDARD OF REVIEW

The standard of review on a motion to withdraw a guilty plea is wellestablished. 

[T]he proper yardstick for our review in this case is a 

determination of whether the trial court abused its 

discretion in denying Greene’s motion. The Pridham

Court itself recognized that the decision whether to grant 

a pre-judgment motion to withdraw a voluntary guilty 

plea is left to the trial court’s “sound discretion.” To be 

sure, the text of RCr[2] 8.10 itself declares that the trial 

court may permit a defendant to withdraw a guilty plea. 

At its heart, a motion to withdraw a voluntarily entered 

guilty plea is an appeal to the discretion of the trial court.

Greene suggests that because his situation involves a 

non-collateral, constitutional issue (ineffective assistance 

of counsel), we should conduct his suggested de novo

review. But we see no reason to depart from what 

appears to be a well-established policy of keeping the 

decision to grant or deny voluntary guilty pleas within 

the trial court’s prerogative. So we will not disturb the 

denial of Greene’s motion to withdraw his guilty plea 

absent a determination that the trial court’s ruling was 

2 Kentucky Rules of Criminal Procedure. 
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“arbitrary, unreasonable, unfair, or unsupported by legal 

principles.”[3]

Greene v. Commonwealth, 475 S.W.3d 626, 630 (Ky. 2015) (some footnotes 

omitted) (citing Pridham v. Commonwealth, 394 S.W.3d 867 (Ky. 2012)).

ANALYSIS

The question before us is a simple one, i.e., did the trial court abuse its 

discretion in denying Amburgey’s motion to withdraw his plea. We find it did not.

RCr 8.10 provides, in part, “At any time before judgment the court 

may permit the plea of guilty or guilty but mentally ill, to be withdrawn and a plea

of not guilty substituted.” Note that the trial court may permit the plea to be 

withdrawn. The use of this term makes it quite clear that the trial court maintains 

the discretion to determine whether to grant or deny the motion to withdraw the 

plea. “At its heart, a motion to withdraw a voluntarily entered guilty plea is an 

appeal to the discretion of the trial court.” Greene, 475 S.W.3d at 630.

We agree with the trial court that Amburgey’s plea was voluntarily, 

intelligently, and knowingly entered. The trial court questioned Amburgey at 

length about the entry of the plea. The court found he voluntarily agreed to the 

plea, understood what he was waiving by pleading guilty, and understood the 

parameters of the agreement. We find no fault with this finding. 

3 Commonwealth v. English, 993 S.W.2d 941 (Ky. 1999). 
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After the plea was entered, counsel immediately asked that the 

sentencing be delayed for sixty (60) days because the parties had agreed Amburgey 

would be released on home incarceration pending sentencing. The trial court 

reminded counsel that it was not bound by any agreement between the parties. The 

court requested a written motion be filed but declined to release Amburgey on 

home incarceration that day. When counsel pressed, the trial court expressed he 

had concerns about granting Amburgey home incarceration and reiterated that a 

motion needed to be filed. 

After the motion was filed, a hearing was held. Counsel argued that 

release on home incarceration was a part of the plea but did not appear in the plea 

paperwork. The trial court reminded counsel that only the court has the authority 

to impose home incarceration, that the Commonwealth had not objected to the 

motion, and that the court was not a party to any negotiations between the defense 

and prosecution. The court then denied the motion to place Amburgey on home 

incarceration pending sentencing. Such determination was completely within the 

discretion of the trial court. 

Amburgey was only entitled to absolutely withdraw his guilty plea if 

the trial court refused to accept the agreement reached between the parties. The 

trial court accepted the plea agreement and all written terms. 

RCr 8.10 requires that “upon the determination of a trial 

court that it will not follow the plea agreement made 
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between the prosecutor and the defendant, the defendant 

has a right to withdraw the guilty plea without prejudice 

to the right of either party to go forward from that point.” 

Haight v. Commonwealth, 938 S.W.2d 243, 251 (Ky.

1996) (citing Commonwealth v. Corey, 826 S.W.2d 319 

(Ky. 1992)).

Covington v. Commonwealth, 295 S.W.3d 814, 816 (Ky. 2009).

While the parties may have discussed releasing Amburgey on home 

incarceration pending sentencing during negotiations, that term was not included in 

the written plea agreement presented to the court. It was only after the trial court 

assented to the written agreement that the term of home incarceration was raised by 

Amburgey’s counsel. 

It should be noted that once the court denied the motion, conflict 

counsel was appointed to Amburgey to file the motion to withdraw the plea. Such 

was proper. See Sturgill v. Commonwealth, 533 S.W.3d 204, 210-11 (Ky. App. 

2017). In the motion, conflict counsel acknowledged there was nothing contained 

within the written motion to enter a guilty plea concerning Amburgey being 

released on home incarceration prior to sentencing. 

No hearing was requested on the motion to withdraw the plea, even 

when conflict counsel was specifically asked by the trial court if he was requesting 

a hearing. Most importantly, the motion never alleged that the entry of the plea 

was involuntary, rather stating only that Amburgey “believed” that if he entered 

the plea the court would release him on “bond” pending sentencing. This is simply 
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not sufficient for a suggestion that the plea was entered involuntarily. Further, 

when considered after the thorough colloquy engaged in by the trial court at the 

time of the entry of the plea, there was no reason for the court to suspect that the 

plea was involuntary, meaning a hearing was unnecessary.

Appellant moved the court to withdraw his guilty plea 

pursuant to RCr 8.10. Criminal Rule (RCr) 8.10 provides 

that, “[a]t any time before judgment the court may permit 

the plea of guilty . . . to be withdrawn and a plea of not 

guilty substituted.” Though an RCr 8.10 motion is 

generally within the sound discretion of the trial 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 v. Commonwealth, 58 S.W.3d 

482, 486 (Ky. 2001); see also Brady v. United States, 397 

U.S. 742, 749, 90 S. Ct. 1463, 1469, 25 L. Ed. 2d 747 

(1970).

Edmonds v. Commonwealth, 189 S.W.3d 558, 566 (Ky. 2006).

The trial court denied the motion after reviewing the entry of the plea 

and the arguments of the parties. The court had complete discretion whether to 

allow the plea to be withdrawn as judgment had yet to be imposed. 

If, however, the trial court determines the plea was 

voluntary, it may deny the motion to withdraw and 

enforce the plea. Id. The trial court is in the best position 

to determine if there was any “reluctance, 

misunderstanding, involuntariness, or incompetence to 

plead guilty,” Bronk [v. Commonwealth], 58 S.W.3d 

[482], 487, and “solemn declarations in open court carry 

a strong presumption of verity,” Blackledge v. Allison, 

431 U.S. 63, 74, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977). 
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Porter v. Commonwealth, 394 S.W.3d 382, 386 (Ky. 2011).

As the trial court had questioned Amburgey about the voluntariness of his plea and 

ensured that he understood the written agreement presented to the court at the time 

of the entry of the guilty plea, it was not an abuse of discretion to overrule the 

motion to withdraw the plea. 

CONCLUSION

The trial court did not abuse its discretion when it denied Amburgey’s

motion to withdraw his guilty plea after considering the record and finding the plea 

was voluntary. The order of the Franklin Circuit Court is affirmed.

ALL CONCUR.

BRIEF FOR APPELLANT:

Julia K. Pearson

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Mark D. Barry

Assistant Attorney General

Frankfort, Kentucky