         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THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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: NOVEMBER 2, 2017
                                                        NOT TO BE PUBLISHED


                 jupmut ~lnurf nf ~t~fi~ ~                                          l
                                  2016-SC-000593-MR ·      [5) ~LI ~u f.z.7/11 !(,;,. 14J,..,DC

JULIUS D. THOMAS                                                        APPELLANT


                 · ON APPEAL FROM JEFFERSON CIRCUIT COURT
v.                     HONORABLE MARY M. SHAW, JUDGE
                               NO. 13-CR-003085


COMMONWEALTH OF KENTUCKY                                                  APPELLEE



                       MEMORANDUM OPINION OF THE COURT

                                    . AFFIRMING


         App~llant,   Julius D. Thomas, appeals from the Jefferson Circuit Court

judgment convicting him of incest, third-degree rape, and third-:degree sodomy,

and sentencing him to prison for a total of twenty years. The trial court

seritented Appellant in accordance with his penalty agreement with the

Commonwealth. Appellant claims the trial court erred by not allowing him to

withdraw the penalty agreement. As grounds for relief, he claims that he did

not voluntarily and intelligently enter the agreement, and alternatively, the trial

court abused its discretion by denying his :rpotion.

         For reasons stated below, we affirm the judgment of the Jefferson Circuit

Court.
                  I. FACTUAL AND PROCEDURAL BACKGROUND
        A jury found Appellant guilty of incest, third-degree rape, and third-

· degree sodomy. The next day, knowing that the jury could recommend a

 sentence of up to thirty years in prison, Appellant <?ntered into an agreement

 with the Commonwealth to forgo his right under KRS 532.055(2) to a penalty-

 phase hearing before the jury. In exchange for the prosecution's promise to

, recommend a twenty-year sentence, Appellant promised not to appeal the

 guilty verdicts. The agreement was memorialized in writing.

        After conducting a hearing and finding that Appellant had knowingly and

 intelligently entered into the agreement, the trial court accepted the agreementl
                                              '                   )   '


 in lieu of the formal penajty phase hearing. Almost two months later and prior

 to final sentencing, Appellant moved to vacate the penalty agreement. He

 claimed that he was rushed at the time he made the agreement and was not

 thinking clearly because of his emotional state   afte1~   receiving the guilty

 verdicts, that he was not properly informed of the penalty conditions, and that

 he did not have' a fair trial. He moved for a penalty. phase hearing before a jury
    .                 I     .
 and the restoration of his right of appeai.

        The trial court denied Appellant's motion based upon the finding that

 Appellant had knowingly and voluntarily enter~d the agreement. Appellant was

 sentenced pursuant to th.e agreement and final judgment was entered

 accordingly. He now appeals the trial court's denial of his motion to withdraw

 from the penalty agreement.




                                          2
                                   II. ANALYSIS

A. Appellant validly waived his right to appeal.
      On appeal, Appellant reasserts his argument that he entered into the

sentencing agreement involuntarily and without awareness of its

consequences; that he has .maintai_ned his innocence throughout the

proceeding and did not concede guilt by accepting a plea agreement, but

instead accepted only a negotiated penalty; and that he felt rushed and coerced

into the agreement between the return of the guilty verdicts and pending·

penalty phase. We review a trial court's finding that a defendant validly waived

his right to appeal for clear error. See Edmonds v. Commonwealth, 189 S.W.3d

558, 570 (Ky. 2006) (citing Rodriguez v. Commonwealth, 87 S.W.3d 8, 10 (Ky.

2002); Elkins v; Commonwealth, 154 S.W.3d 298, 300 (Ky. App. 2004)).

      For a waiver of a constitutional right to be valid, the defendant in a

criminal prosecution must voluntarily, knowingly, and· intelligently waive the ·

right. Brady v. United States, 397 U.S. 742, 748 (1970); King v. Commonwealth,

374 S.W.3d 281, 290 (Ky. 2012) (citations omitted). Before accepting a waiver,

the trial court must "make an affirmative showing, on the record, that [a waiver

of a constitutional right] is voluntary and intelligent." Edmor:ids, 189 S.W.3d at

565 (citing Boykin v. Alabama, 395 U.S. 238, 241-242 (1969)). A waiver is

intelligent when "done with sufficient awareness of the relevant circumstances

and likely consequences." Brady, 397 U.S. at 748 (citations omitted). A

finding of an intelligent waiver of the right to appeafas part of a sentencing

agreement is supported when the defendant is advised by competent counsel


                                        3
                                                                               (
and is made aware of the rights he is waiving, and when there is nothing to

indicate that the defendant was incompetent, or otherwise not in control of his

mental faculties. See id. at 756. A waiver is voluntary if the defendant is not

induced by threats or by misrepresentations by the Commonwealth or the trial

court. Id .. at 755; Edmonds, 189 S.W.3d at 565. Appellant's waiver was not

invalid in either respect.

       In his colloquy with the trial court before the formal entry of the penalty

 agreement, Appellan:t acknowledged that 1) he was not coerced into the              r

agreement; 2) he y.rtderstood- he was giving up the penalty-ph~se rights to jury

. sentencing, to present witnesses and evidence, and to not testify; and 3) he

understood he was giving up the right to appeal. Appellant also affirmed he

 agreed with the Commonwealth's recommendation that he serve 20 years for

incest, 5 years for rape,    and~   years for sodomy, to be served concurrently.

Additionally, Appellant affirmed he understood his parole eligibility status, his

legal responsibilities as a sex offender, and that upon release from prison, he

 was subject to conditional discharge. for five years. "Solemn declarations in

 open court carry a strong presumption of verity." Blackledge v. Allison, 431 .

 U.S. 63, 97 (1977).
                         ' evidence to suggest that he was not truthful in his
       Appellant offers no

 colloquy with the court. He says only that he was rushed in· deciding whether
                        '\

 to accept the offered sentence of twenty years and eliminate -the risk of a

 greater penalty that the jury could impose. We recognize that Appellant had

 relatively little time in which to make a serious decision in the midst of an

                                            4
    ongoing trial. But the urgency inherent in such circumstances does not equate

    . to coercion. There is no evidence that anyone threatened him or that,his
                                                                                  ;


    acceptance of the agreement was induced by anything other than the benefit he ·

    received from his bargain. With or without time constraints, having to choose

    between the strong probability of a lesser sentence, at the price of waiving his

    constitutional right to appeal, and the possibility that a jury would set a much

    greater sentence, does not render the waiver compulsory and involuntary. See

    Brady, 397 U.S. at 750-751; see also Edmonds, 189 S.W.3d at 570.

          We see nothing to suggest "that [Appellant] did not or could not, with the

    help of counsel, rationally ~eigh the advantages of [the jury deciding his
                                                                                 .....

    penalty]
          .
             against the advantages of [entering the sentencing
                                                             I
                                                                agreement]."
                                                                       .


    Brady, 397 U.S. at 750. When questioned by.the trial court at the time of his

    waiver, Appellant gave no indication that he lacked an essential understanding

    of the situation or an awareness of the consequences of the waiver of his rig~t
                                                      \..         .


    to .appeal.

           Substantial eviaence supports the trial court's conclusion that Appellant

    voluntarily and intelligently entered the sentencing agreement.

    B. The trial court did not abuse its discretion when it declined to permit
       Appellant to withdraw from the penalty agreement.
          Appellant argues that even if he voluntarily and intelligently entered the

;   sentencing agreement, the trial court abused its discretion when denying his
                          -                                 /

    motion to withdraw from it. He argues that granting his motio_n to withdraw

    from the agreement would have been the fair and just thing to do.



                                            5
           He argues that because a penalty agreement_to forgo jury sentencing is

 simply one aspect of a plea agreement, this Court should apply to his

 sentencing,agreement the seven factors identified in United States v..

 Hockenberry, 730 F.3d 645, 662 (6th,.Cir. 2013),
                                             .
                                                  as fair and just reasons for
                                                        ,




 allowing a federal defendant to withdraw a guilty plea.1 Under Federal Rules of

 Criminal Procedure l l(d)(2)(B) a guilty plea may be withdrawn if "the defendant

 can. show a.fair andjust reason for requesting the withdrawal." Although                    th~
                                                                                                    /
                                               ,

  Hockenberry factors may touch on considerations relevant to determining

 whether a waiver of a constitutional right is valid, we decline to alter our

 existing precedent for determining wh~ther the trial court erred when denying a
                                               I




 motion· to withdraw from an agreement in which a defendant waived a

 constitutional right. Consequently, we next.address whether                  t~e   trial court's

 decision to deny Appellant's motion was arbitrary, unreasonable, unfair, or

_____ unsupported by sound legal principles. Commonwedlth v. English, 993 S. W .2d

 941, 945 (Ky. 1999)._                                       _/




           Citing Parson v. Commonwealth, 144 S.W.3d 775, 782-785 (Ky. 2004),

 the. Commonwealth points out that becaµse it detrimentally relied upon the

 agreement when it waived its opportunity to se.ek a              gre~ter   sentence and



  1   The seven, non-exclusive Hockenberry factors are:
           (1) the amount of time that elapsed between the plea and the motion to
           withdraw it; (2) the presence (or absence) of a valid reason for the failure
           to move for withdrawal earlier in the proceedings; (3) whether the
           defendant has asserted or mfilntained his innocence; (4) the
           circumstances underlying the entry of'the guilty plea; (5) the defendant's
          .nature and background; (6) the degree to which the defendant has had
           prior experience with the criminal justice system; and (7) potential
           prejudice to the government if the motion to withdraw is granted.
                                                   ·6
released the jury that had heard the guilt-phase evidence, Appellant should not

be permitted to withdraw from his waiver. If the agreement were to be set

aside, before an appeal of the guilt phase could be heard., the trial court would

have to complete a penalty phase trial using a new jury' before whom the guilt-
        .                         ,
phase ·evidence would be replicated.

      Appellant's agreement with the Commonwealth is a contract. We have

made clear that if an "offer is made by .the prosecution and accepted by the

accused, either by entering a plea or by taking action to his detriment in
                                      ·'
reliance on the offer, then the agreement becomes binding and enforceable."
        ·'
Commonwealth v. Reyes, 764 S.W.2d 62,, 65 (Ky. 1989). A defendant is entitled

to insist on the benefit of his bargain. See Santobello v. New York, 404 U.S.

257, 261-262 (1971). When, as in this case, there has been no unfairness or

constitutional infirmity "in securing agreement between an accused and a

prosecutor," id. at 261, there is no valid or compelling reason why Appellant

should not likewise be held to his bargain in accordance with the general laws

applicable to contracts.

      When Appellant entered into negotiations with the Commonwealth, he

was left with little bargaining power. One thing he could offer in exchange for a

twenty-year sentence recommendation was his right to appeal. He decided to

make a deal- rather than take a chance that the jury would recommend a

greater sentence. The Commonwealth, relied upon Appellant's promise and

kept its promise. Appellant "was fully aware of the likely consequences when

he [entered the sentencing· agreement]; it is not unfair to expect him to live with

                                           7
      those consequences now." Mabry v. Johnson, 467 U.S. 504, 511 (1984). We ·

      cannot say that the trial court's _denial of Appellant's motion to withdraw from
                               .                                                  .
      the sentencing agreement was      arbi~rary,      unreasonable, unfair, or unsupported

      by sound legal principles. The trial court did not abuse its discretion.


                                         III. CONCLUSION
             For the foregoing reasons, the judgment of the Jefferson Circuit Court is__../

    '· affirmed.

             All sitting. All concur.




\




      COUNSEL FOR APPELLANT:

      Linda Roberts Horsman
      Assistant Public Advocate

      COUNSEL FOR APPELLEE:

      Andy Beshear
      Attorney General of Kentucky

      Todd Dryden Ferguson                      I
                                                    i
      Assistant Attorney General
                   .   \




                                                                                               /


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