             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        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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
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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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 ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
                                             RENDERED: SEPTEMBER 22, 2016
                                                     NOT TO BE PUBLISHED

               $uprrtur                       d 7,firtti
                               2014-SC-000127-MR          u     u


JOSEPH BANIS
                                                          gar E        aDokg,;.adissayi,
                                                                      APPELLANT


                ON APPEAL FROM JEFFERSON CIRCUIT COURT
V.                   HONORABLE MITCH PERRY, JUDGE
                            NO. 10-CR-001867


COMMONWEALTH OF KENTUCKY                                                APPELLEE


                   MEMORANDUM OPINION OF THE COURT

                     AFFIRMING AND DISMISSING APPEAL


       In late 2009, Appellant, Joseph Banis, his paramour, Jeffrey Mundt, and

James Carroll, gathered at Mundt's house in Louisville for a drug infused

ménage a trois. However, things quickly went awry. While Carroll and Mundt

were engaged in sexual relations, Appellant stabbed Carroll in the throat with a

knife and then shot him. Appellant proceeded to point the gun at Mundt and

threatened to kill him if he did not help.

       Appellant and Mundt wrapped the victim's slain corpse in bedsheets and

carried it deep into the bowels of Mundt's historic Old Louisville home. After

they began digging a hole in the dirt basement floor in which to place the body

,they soon realized that their current undertaking required additional tools.
The -two then traveled to a nearby hardware store where they purchased the

necessary materials.

      Sometime thereafter, they stripped the victim of his valuables, cleaned

the body with mineral spirits, and beat it with a sledge hammer to loosen the

rigor mortis that had set in. They also tied the victim with twine, doused the

body in lime, and stuffed it into a 50-gallon plastic container. The top of the

container was sealed with tape. Foam sealant was also added to confine the

creeping odor of rot. The interment of this pitiful coffin into the dirt rendered

the dastardly deed complete and the secret forever laid to rest. Or so it

seemed.

      In April, 2010, the confederates were arrested in Chicago while in

possession of counterfeit currency. Appellant was also in possession of the

firearm that was used to shoot the victim in the present case. Of course, the

Chicago police did not know that at the time. Appellant and Mundt were

subsequently released.

      Sometime after they returned to Louisville, Mundt lodged a formal

complaint against Appellant to the Louisville Metro Police arising out of a

domestic dispute between the two men. While being questioned by the

investigating officers, Appellant stated that he had information about an

unreported homicide. Appellant told the officers where the body of the victim

was located and blamed Mundt. The officers followed Appellant's directions

and exhumed the body.




                                        2
       As a result, Mundt and Appellant were indicted for murder and robbery.

Appellant was also indicted for a sundry of other crimes. The two were tried

separately and both defendants testified against each other. Appellant was

tried first.

       It's important to inject here an unusual procedural twist to both

Appellant's case and that of Mundt. Both entered agreements with the

Commonwealth which did not entail guilty pleas to the principal crimes.

       In exchange for the Commonwealth agreeing not to seek aggravated

punishment, Mundt agreed to testify at Appellant's trial. Consequently, at

that trial he testified that Appellant stabbed and shot the victim.

       A Jefferson Circuit Court jury convicted Appellant of complicity to

murder, complicity to first-degree robbery, complicity to tampering with

evidence, complicity to first-degree criminal possession of a forged instrument,

three counts of possession of methamphetamine, and possession of drug

paraphernalia.

       After the jury verdict, the Appellant waived the jury sentencing phase of

the trial and reached an agreement with the Commonwealth. As part of that

agreement, Appellant pled guilty to being a first-degree persistent felony

offender. In addition to the sentence, the Appellant also agreed to be available

to testify at Mundt's trial. After some vacillation Appellant eventually complied

with the agreement and testified at Mundt's trial. In that testimony, Appellant

claimed that Mundt killed the victim. A Jefferson Circuit Court jury disagreed

and acquitted Mundt of murder but convicted him of facilitation to first-degree

                                        3
robbery and complicity to tampering with evidence. Mundt was sentenced to

eight years' imprisonment.

      Pursuant to Appellant's agreement with the Commonwealth, the trial

court sentenced Appellant to life imprisonment without the possibility of parole

for a period of twenty years. Appellant now challenges the validity of that

agreement.

                                    Analysis

      As reported previously in general terms, on March 8, 2013, the

Appellant's jury returned a guilty verdict and the parties agreed to recess the

trial until the following Monday. On March 11, 2013, the parties advised the

trial court that an agreement had been reached between the Commonwealth

and Appellant. The agreement was titled "Penalty and Witness Availability

Agreement" (the "Agreement"). It contained the following conditions:

      In exchange for the Commonwealth's recommendation of a Life
      sentence with a parole eligibility of twenty years, the defendant,
      Joseph Banis, agrees to waive his right to appeal all trial and
      pre-trial issues.

     'Further the defendant, Joseph Banis agrees he is available as a
      witness in the trial of Jeffrey Mundt and no longer has a Fifth
      Amendment right. He may be called by any party as a witness. He
      is subject to examination by the Commonwealth and the co-
      defendant, Jeffrey Mundt. (Emphasis added).

The Agreement was read aloud in court and Appellant's counsel indicated that

he had enough time to discuss the agreement with Appellant and that

Appellant understood the agreement. Appellant was placed under oath and the

trial court confirmed that he understood what had just occurred. The

Agreement was signed by Appellant, his counsel, and the prosecutors. After
                                        4
Appellant acknowledged that he understood, the court accepted Appellant's

Agreement and his PFO plea. The court scheduled the sentencing hearing for

after the completion of Mundt's trial.

       Three days into Mundt's trial, Appellant filed a motion seeking to set

aside his agreement with the Commonwealth and for a new trial. He argued

that he entered into the agreement involuntarily, and as a result of undue

influence and prosecutorial misconduct. As to the latter claim, Appellant

contends that prosecutors had met with Mundt prior to Appellant's trial and

conspired with Mundt to knowingly present false testimony to the jury in

Appellant's case. The trial court held a hearing on the motion, which it

subsequently denied.

      After some mind changing back and forth during Mundt's trial Appellant

finally did testify as agreed.

      At his final sentencing hearing, Appellant once again attempted to

rescind his Agreement so that he may proceed to the sentencing phase of trial,

in which the death penalty would have been an option. However, the trial

court ultimately sentenced Appellant to the sentence provided in the

Agreement—life without the possibility of parole for twenty years.

      "Generally, plea agreements in criminal cases are contracts between the

accused and the Commonwealth, and are interpreted according to ordinary

contract principles." McClanahan v. Commonwealth, 308 S.W.3d 694, 701 (Ky.

2010). As we observed in Johnson v. Commonwealth, "[a]ny right, even a

constitutional right, may be surrendered in a plea agreement if that waiver was


                                         5
made knowingly and voluntarily." 120 S.W.3d 704, 706 (Ky. 2003) (citing

United States v. Ashe, 47 F.3d 770, 775-776 (6th Cir. 1995)). However, "[a]

guilty plea is involuntary if the defendant lacked full awareness of the direct

consequences of the plea or relied on a misrepresentation by the

Commonwealth or the trial court." Edmonds v. Commonwealth, 189 S.W.3d

558, 566 (Ky. 2006) (citing Brady, 397 U.S. 742, 755 (1970)). We review for

clear error. Id.

Undue Influence

      As previously stated, Appellant argued that he entered into the

Agreement unknowingly and while under undue influence. Appellant's primary

argument here is that the trial court failed to hold an extensive evidentiary

hearing on the matter. Appellant specifically argues that the court erred by

refusing to allow him to testify at the hearing. However, Appellant fails to

indicate that he or his counsel provided the court with any significant

foundation for his claim that would have necessitated Appellant's testimony.

His motion to set aside the Agreement merely claimed that "[Appellant] was

under undue influence from family, who spoke with him in the holdover area

no less than 4-5 occasions and others." This charge is insufficient to warrant

the type of exhaustive hearing requested by Appellant.

      Moreover, the record indicates that the trial court did engage in a rather

extensive hearing, the thrust of which concerned Appellant's prosecutorial

misconduct claim. In fact, Appellant's defense counsel failed to elaborate on its

undue influence claim when given the opportunity to do so at the hearing. In
any event, the evidence indicates that, prior to entering into the Agreement, the

trial court engaged in a thorough colloquy and ensured that Appellant

understood that he was waiving his right to appeal.   See Boykin v.

Alabama, 395 U.S. 238 (1969). The court undertook a similar interrogation

again after Appellant changed his mind during Mundt's trial and decided to

testify in accordance with his original promise. At one point during the second

colloquy, Appellant informed the court that he was "quite cogent." It is clear

that Appellant knowingly entered into the Agreement free from undue

influence.

Prosecutorial Misconduct

      In his motion to Set Aside the Agreement, Appellant argued the following:

             1) The prosecution's agreement with Mundt did not contain a
             provision requiring Mundt to be truthful during his
             testimony;

             2) The lead prosecutor in Mundt's trial stated in closing
             argument that she did not believe Mundt's testimony was
             entirely truthful; and

             3) Therefore, prosecutors entered into an agreement with
             Mundt that purposefully excluded a truthfulness provision,
             conspired with Mundt during their pretrial meeting with
             him, knew before trial he would present false testimony that
             it knew would be false in order to obtain the conviction of
             [Appellant].


The Commonwealth conceded the first two points but denied the third

allegation on multiple occasions.

      The record from Appellant's trial indicates that the Commonwealth

questioned Mundt in front of the jury concerning their pre-trial meeting.

                                        7
Mundt's counsel also cross-examined Mundt concerning that meeting.

Therefore, Appellant's jury was apprised of this meeting, which is a typical

component of witness preparation, and was permitted to draw its own

inferences. Also, it is critical to note that, while Mundt's agreement with the

Commonwealth did not contain a clause requiring Mundt to testify truthfully,

Appellant's own Agreement with the Commonwealth also omitted such a

requirement.

      After considering the arguments presented by the Commonwealth and

Appellant's counsel, the trial court orally ruled:

      There's no evidence to suggest to the Court that the
      Commonwealth knew in advance with specificity what Mr. Mundt
      was going to say, nor is there any evidence to suggest that the
      Commonwealth or any of its agents told him what to say . . . .


      The Court's finding is the agreement between the Commonwealth
      and [Appellant] is valid.


The court followed-up with a written order memorializing its oral ruling that

was entered after Appellant's final sentencing hearing. We agree with the trial

court's ruling. There is simply no evidence indicating that the Commonwealth

conspired with Mundt prior to trial to knowingly present false testimony or that

the Commonwealth knew in advance what Mundt would say.

      To reiterate, Appellant testified at Mundt's trial that Mundt killed the

victim. Mundt testified at Appellant's trial that it was Appellant who killed the

victim. They were the only two witnesses to the killing. Clearly someone was

lying. The Commonwealth did not act unethically or improperly by calling

                                         8
Mundt to testify in Appellant's trial so that the jury could assess the veracity of

Mundt's statements. Appellant was afforded numerous opportunities to

challenge the validity of the Agreement and failed to present any credible

evidence in support of his claim.

      Because the Agreement is valid and enforceable, Appellant has waived

his right to appeal. Therefore, his remaining claims concerning the alleged

errors that occurred during his trial are not properly before this Court.

                                    Conclusion

      For the foregoing reasons, we hereby affirm the judgment of the Jeffersori

Circuit Court and dismiss this appeal.

      All sitting. All concur.




COUNSEL FOR APPELLANT:

Molly Mattingly
Assistant Public Advocate


COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Jeffrey Allan Cross
Assistant Attorney General




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