               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          NOT TO BE PUBLISHED OPINION

· THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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), .
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                                                  RENDERED: SEPTEMBER 28, 2017
                                                          NOT TO BE PUBLISHED




                                    201 7 -SC-000300-TG
                                   (2016:..CA-001731-MR)



 DARYL WAYNE LIGGETT                                                      APPELLANT


                          ON APPEAL FROM KENTON CIRCUIT COURT
 v.                           HONORABLE KATHY LAPE, JUDGE
                                     NO. 15-CR-00741


COMMONWEALTH OF.KENTUCKY                                                   APPELLEE

                               .                       .
                          MEMORANDUM OPINION OF THE COURT

                                          ·AFFIRMING

         . Daryl Wayne Liggett appeals as a matter of right I from a circuit court

judgment convicting him of first-degree sodomy and sentencing him to 25

. years' imprisonment. The trial court entered thisjudgment upon Liggett's guilty

plea and imposed the sentence consistent with the plea bargain agreement
                      I



between Liggett and the Commonwealth. Liggett now argues that the trial court

erred.when it denied his motion made before final sentencing to set aside his
                                      .                    .
guilty plea as involuntarily made. We affirm the judgment because we hold that

the trial court's findings that Liggett's guilty plea was knowing, voluntary, and

intelligent are supported by substantial evidence, and thus not clearly



1   Ky. Const. § 110(2)(b).                                                           '\
. erroneous, and that the trial court did not abuse its discretion in denying

 Liggett's motion to withdraw his guilty plea.


                      I. FACTUAL AND PROCEDURAL BACKGROUND.
          A g1:"and jury indicted Liggett for one count of first-degree sodomy of a

 victim under 12 years of age. Initially, the court appointed counsel to represent

 Liggett, and Liggett pleaded not guilty to the charge. In exchange for Liggett's

 guilty plea.to the charges in the indictment, the Commonwealth agreed to

 recommend 25 years in prison and further agreed not to seek indictment on

 other potential changes arising out of the underlying facts. Based on the.

 charged offense, Liggett faced 20 to 50 years, or life, in prison.2

          In his motion to ente:r: a guilty plea, Liggett declared in writing the

 following:

          I declare my pie.a of "GUILTY" is freely, knowingly, intelligently and
          voluntarily made; that I.have been represented by counsel; that my
          attorney has fully explained my constitutional rights to me, as well
          as the charges against me and any defenses to them; and that I
          understand the nature of this proceeding and all matters
          contained in this document.

                                             ' the trial court conducted a Boykin
          Before accepting Liggett's guilty plea,

 hearing3, canvassing Liggett's understanding of the proceedings; During this

 colloq~y,    Liggett stated und~r oath: he has a 12th gtade education and can

 read and write; his judgment was not impaired; he understood his .

 constitution~! rights; he fully unde~stood ·what was happening in his case; he



 2   KRS 510.070(2); KRS 532.060(2)(a) .
.a Boykin v. Alabama, 395 U.S. 238 (1969).

                                             2
had sufficient time to discuss the plea· with counsel; he had no complaints

about counsel's representation; and that he was not cbetced into pleading

guilty, but was doing so of his own free will because he was, in fact, guilty.

      In the pre-sentence investigation report (PSI) prepared after the trial

court accepted the guilty plea, Liggett took responsibility for   ~~e   crime and

stated that the sentence contemplated by the plea bargain agreement was fair,

in addition to indicating that he fully understood his guilty .Plea. At the

conclusion of the Boykin colloquy, the trial court accepted Liggett's guilty plea,

finding it to be knowingJy, voluntarily, .and inteiligently made.

      Before final sentencing, Liggett retained new counsel. New counsel
             .                 .                                  .
moved to withdraw the guilty plea and supporte~ the motion with an affidavit

from Liggett stating various deficie.ncies on the part of former counsel,

including:
                                   ..   '   .

      (1) that he [Liggett] was not provided adequate representation on
      the matter;· ·                              ·    .
      (2) that he was hot afforded the opportunity to review his discovery
      with his attorney until the day he pled guilty;          ·
      (3) that he and his attorney did not spend enough time on
      reviewing and explaining his discovery to fully understand his
      case;
      (4) that his attorney did not provide him with advice when he
      requested her advice;                            ·    ·
      (5) that he was unable to reach his attorney on the phone, nor
      could he schedule a meeting with her;
      (6) that his attorney(did not attend all court appearances, instead
      another attorney that ·was not adequately advised of his case filled
      in several times; and
      (7) that his guilty ·plea was ·not made knowingly and intelligently;
      as required.

      The trial court conducted a hearing on Liggett's motion to withdraw the

guilty' plea, allowing both sides to present arguments and denied the motion.
                                            3
The trial court supported its denial by recalling'Liggett's previous statements

made in open court and his previously signed document, in addition to

statements attributed to him in his PSI, in which Liggett took responsibility for

the crime and stated that his sentence was _fair. All these facts, the trial cou~t

found, refuted Liggett's more recent allegations concerning the validity of his

guilty plea.

         Later, the trial court sentenced Liggett to 25 years imprisonment in

accordance with the plea agreement and entered judgment accordingly.

                                            II. ANALY;SIS.

       A. Standard of Review.

         An appellate court reviews the trial court's denial of~ motion to withdraw

a guilty piea in a two-step. process. First, a trial court's determination as to th.e

voluntariness of a plea is reviewed for clear error. 4 A decision. that is supported
   .



by substantial.evidence is not clearly erroneous.s Second, once. a court

determines a plea to be voluntary, a trial court's refusal to allow a voluntary

· plea to be withdrawn is review<;!d for an abuse of discretion. 6 "A trial court

abuses its discretion when it render_s a decision which is arbitrary,

unreasonable, unfair, or unsupported by sound legal principles." 7



4 Rigdon v. Commonwealth, I44 S.W.3d 283~ 288 (Ky. App. 2004) (citing Bronk. v. Commonwealth,
58 S.W.. 3d 482, 489 (Ky. 200I) (Cooper, J., concurring)).
s Rigdon, i 44 S. W .3d at 288 (citing Baltimore v. Commonwealth, I I 9 S. W ..3d 532 (Ky. App. 2003)).
6 Rigdon, I44 S.W.3d at 288 (citing Bronk, 58 S.,W,3d at 487). These case~ interpret Kentucky
Rule of Criminal Procedure 8.10 to afford. abuse of discretion review of a trial court's decision.
RCr a.10 states, "At any time before judgment the court may permit the plea of guilty ... to be
withdrawn and a plea of not guilty substituted." (emphasis added). ·
1 Rigdon, I44 S.W.3d at 288 (citing Goodyear 1lre & Rubber Co. v. Tlwmpson, I I S.W.3d 575,
58.I (Ky. 2000)).                              .
                                                  4
        B. General Law.

             "A guilty plea is valid only when it is entered intelligently and

 voluntarily."8 "In determining the validity of guilty/pleas in criminal cases, the

 plea must represent a voluntary and intelligent choice among the alternative

 course of action open to the defendant. "9 "Whether a guilty plea is voluntarily

 given is to be determined from the totality of the circumstances surrounding

 it. "10 "The trial court is in the best position to determine the totality of
                              .                                                               .

 circumstances surrounding a guilty plea." 11 If the c.ourt finds a·guilty plea to be

involuntary, the motion to withdraw must be granted; however, if a plea is

found to be voluntary, it is then within the trial court's discretion to permit its

 withdrawal. 12 "A defendant who expressly represents in open court that his

 guilty plea is voluntary may not ordinarily repudfate his statements to the

 sentencingjudge."1 3 "Solemn declarations in open court carry a strong

 presumption ofverity."14

             Because Liggett alleged ineffective assistan.ce of counsel, we :in1:J.st

"consider
       .
          the totality of circumstances surrounding the. . guilty plea and

jID<;tapose the presumption of voluntariness inherent. in a proper plea colloquy




 a Bronk, 58 S.W.3d.at 486.                   .   ·          ·     .         .·
 9 Centers v. Commonwealth, 799 S.W.2d 51, 54 (Ky. App. 1990) (citing Norlh Carolina v. Alford,
 400 U.S. 25 (1970) and Sparks v. Commonwealth, 721 S.W.2d 726 (Ky. App. 1986)).
 10 Rigdon, 144 S.W.3d at 287-88 (citing Rodriguez v. Commonwealth, 87 S.W.3d 8 (Ky. 2002)}.
 11    Id.
. 12   Id.   .       .               .      . .                                      .   .
 13    Edmonds v. Commonwealth, 189 S.W.3d 558, 568 (Ky. 2006) (quoting U.S. v. Todaro, 982 F.2d.
 1025, 1030 (6th Cir. 1993)).   .            .                  .                ·
 14Centers, 799 S.W.2d at 54 (citing Bla,ckledge v. Allison,'431 U.S. 63 (1997)).

                                                  5
with a Strickland v. Washington 15 inquiry into the performance of counsel."16

Under this inquiry, Liggett must demonstrate:

           (1) that counsel made errors so serious that counsel's performance
           fell outside the wide range of professionally competent assistance;
           and (2) that the deficient performance so seriously affected the
           outcome of the plea proce.ss that, but for the errors of counsel,
           there is a reasonable probability thatthe defendant would not have
           pleaded.gl.lilty, but would hav.e insisted on going to trial.17

"The fact that counsel .consulted ' only briefly with his client before his.
                                .



client eritered a gliilty plea does not, absent more, establish ineffective

assistance of counsel; it is only a factor to be considered in the totality of

circumstances."18 While limited communications between an attorney

and client are far from ideal, "such situations are not uncommon."19

           "A conclusory
                  .
                         allegation
                               .
                                    to the effect that. absent
                                                           .
                                                               the error the.

movant would have insisted          upo~   a   tri~l   is not enough" to demonstrate

prejudice.20 Liggett "must allege facts that, if proven, would 'support a

·conclusion that     th~   decision to reject the plea bargain and go to trial

would have been rational" under the circumstances.21.

      C. The Trial Court's Ruling was not Clearly Erroneous, nor did it Abuse
         its Discretion.                   ·

           The trial court's finding that Liggett entered his plea voluntarily,

·knowingly, and intelligently finds much support in the record. As stated, the



1s 466 U.S. 668 (1984).
16 Bronk, 58 S.W.3d at 486.
17 Bronk, 58 S.W.3d at 486-87 (citing Sparks, 721 S.W.2d at 727-28).
is Rigdon, 144 S.W.3d at 290 (citing Jones v. Parke, 734 F.2d 1142, 1146-47 (6th Cir. 1984)).
19 Rigdon, 144 S.W.3d at 291.
20 Stiger v. Commonwealth, 381 S.W~3d 230, 237 (Ky. 2012).
21   Id.
                                                  6
trial court conducted a colloquy in open court with Liggett. During this

colloquy, Liggett confirmed that he was intellectually capable of understanding

and did understand the charge against him, his right to contest his guilt on

this charge, and the consequences of his decision to plead guilty. And the later-

made statements attributed to him in the PSI further supported the validity of

the guilty plea he made under oath during the plea colloquy.

          Liggett's affidavit is the only evidence he submitted to support his effort

to set aside the guilt)' plea. Even viewing Liggett's allegations in the light most

favorable to him,. the totality of the circumstances favors the trial court's

finding that Liggett knowingly, voluntarily, and intelligently entered his guilty

plea. Liggett's statements in open court, his statements in his PSI, and the

written motion to enter the plea not only directly refute the conclusory

allegations he made in his affidavit, but also substantially outWeigh those

allegations, including his ineffec.tive assistance of counsel allegations. Liggett

presents no other evidence in support of his allegations, thus failing to meet

his burden.

          Without more than conclusory allegations supported by Liggett's

affidavit, we cannot speculate. as to whether Liggett's-allegations amount to

such     adeficient performance on the part of counsel so as to classify these
actions as "outside the range of professionally competent."22      Additionally~

nothing Liggett presented undermines the strength of the trial court's factual

findings regarding the voluntary, knowin·g, and intelligent nature of the guilty


22   Strickland, 466 U.S. at 690.
                                            7
plea, nor does· it demonstrate a reasonable probability that, but for counsel's

 alleged errors, he would not ~ave pleaded guilty and would have insisted on

 going to trial.

       .. Liggett's plea bargain resulted in imposition of a sentence of

imprisonment that was half the length of the se.nte:r:ice that he could have

received under the law. The bargain included an agreement by the

 Commonwealth to forego seeking indictment for additional serious charges with

substantial ranges of punishment. Liggett thus did not meet his burden of

showing that a       rat~onal   individual would have rather fac.ed this possibility than

accept the guilty plea offer.

           The question is whether the trial court's finc:lings are supported by

substantial evipence.; if they. are, the trial court did not commit clear error, and
       ,

its rulirig must be upheld. Because the trial court's findings are supported by

substantial evidence, as stated ·above, the trial court's finding that Liggett's

guilty plea was knowing, intelligent, and voluntary. is not clearly erroneous.

           Lastly, the trial court did not abuse its discretion in denying Liggett's .

motion to withdraw his guilty plea. Nothing about the trial court's de.cision

renders it arbitrary, unreasonable, unfair, or unsupported by sound legal

principles.23 Stated differently, nothing in the record c8.lls into question the

 reasonableness of the trial judge's decision to deny Liggett's motion. The

·.judge's decision in this case to deny the motion did not amount to an abuse of




23   Rigdon, 144 S.W.3d at 288 (citing Goodyear Tire, 11 S.W.3d at 581).
                                                 8
.discretion because it was reasonable.to do so, based on the totality of the

record.

                                  III.   CONCLUSION . .

       We affirm the judgment because we conclude that substantial evidence

supported the trial court's ruHng regarding the voluntariness of the guilty plea,

 and thus the ·trial court committed no clear error on the fact, and because th·e

trial court did not abuse its discretion in denying Liggett's motion·to withdraw

his ple.a.

       All sitting. All concur.



· COUNSEL FOR APPELLANT:

Darrell A.· Cox
Berger & Cox

 COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

John PaulVaro       .
Assistant Attorney General ·




                                         9
