             IMPORTANT NOTICE
        NOT TO BE PUBLISHED OPINION

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                                          .




ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
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                                               RENDERED: OCTOBER 23, 2014
                                                      OTrTO BE PUBLISHED
                                                              IIt_
              ,i5uprrittr (Court of Icfi                             tk
                                                                            LX
                                2014-SC-000007-MR            Eili
SHEMEKO HOWARD
                                                       [DAT               APPELLANT


                 ON APPEAL FROM FAYETTE CIRCUIT COURT
V.               HONORABLE ERNESTO SCORSONE, JUDGE
                            NO. 12-CR-01221


COMMONWEALTH OF KENTUCKY                                                   APPELLEE



                  MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING

      A jury convicted Shemeko Howard (Howard) of assault in the first degree,

tampering with evidence, and with being a persistent felony offender in the

second degree (PFO II). Following the jury's finding of guilt, Howard entered a

guilty plea in exchange for a minimum sentence, which she received. On

appeal, Howard argues that she was entitled to directed verdicts on the assault

and tampering with evidence charges. The Commonwealth argues that Howard

forfeited her right to appeal when she pled guilty. In the alternative, the

Commonwealth argues Howard was not entitled to directed verdicts. For the

following reasons, we affirm.

                                 I. BACKGROUND.

      On August 5, 2012, Howard was standing outside the Speedway gas

station/convenience store on South Broadway in Lexington, Kentucky, arguing

on the telephone with her husband, Ronald Gentry (Gently). While still
arguing with Gentry, Howard went into the store and purchased a pack of

cigarettes. Christopher Mayfield (Mayfield) who was standing in line behind

Howard, asked her for a date.' Howard declined Mayfield's invitation, left the

store, and Mayfield followed.

       By the time Howard got outside the store, Gentry had arrived and he and

Howard began arguing. At some point Gentry pushed Howard to the ground.

Mayfield and a friend of his intervened, and Mayfield helped Howard get up

from the ground. Mayfield, his friend, and Gentry then began arguing.

Howard got between Mayfield and Gentry, and Mayfield, who was attempting to

hit Gentry, hit Howard in the mouth, knocking her to the ground again.

Howard then got up; got into the Cavalier that Gentry had driven to the

Speedway; and began driving erratically around the Speedway lot in an attempt

to hit Mayfield. Howard did not hit Mayfield, but she did hit a guard rail,

severely damaging the Cavalier.

      In the meantime, Mayfield and his friend had started walking to an

apartment building across the street from the Speedway. Howard got out of

the Cavalier, got into the car she had driven to the Speedway, a Charger, ran a

red light, struck Mayfield, and then struck a parked car. Howard then

returned to the Speedway, picked up Gentry, and left the area.

      Emergency personnel treated Mayfield at the scene and transported him

to the hospital where he received treatment for a subdural hematoma and



       1We note Howard stated in her brief that Mayfield asked her if he "could get
with her." However, the exact wording of Mayfield's request is irrelevant.

                                           2
several fractured bones. Mayfield continues to suffer from significant

impairment to his left hand and from vision and memory loss.

      Prior to trial, Howard and the Commonwealth agreed that Howard was

entitled to present a defense of extreme emotional disturbance. She did so,

testifying that she had been a victim of domestic violence throughout her two

and a half years of marriage to Gentry; that Mayfield had hit her harder than

she had ever been hit; and that she "blacked out" and had no memory of any

events after she wrecked the Cavalier. However, Howard admitted that she had

been trying to hit Mayfield with the Cavalier. The jury rejected Howard's

defense and found her guilty of all charges.

      Before the penalty phase of the trial began, Howard, who was facing a

possible life sentence, agreed to plead guilty to being a PFO II and waived jury

sentencing on the assault and tampering charges in exchange for minimum

consecutive sentences totaling twenty-one years. 2 When questioned by the

court, Howard's counsel stated that Howard understood the offer and was

following his advice.

      The court did not conduct a plea colloquy; however, Howard completed

and signed a Waiver of Further Proceedings with Petition to Enter Plea of Guilty

form. In that form she affirmed: she was'not under the influence of alcohol or

        2 We note that the record is unclear regarding this plea. In the Waiver of
Further Proceedings with Petition to Enter Plea of Guilty it appears that Howard pled
guilty to the assault, tampering, and PFO II charges. The court's Judgment on Guilty
Plea states that Howard pled guilty to PFO I and waived jury sentencing on the assault
and tampering charges. The court's Final Judgment and Sentence of Imprisonment
states that Howard pled guilty to the assault, tampering, and PFO II charges. The
Commonwealth has argued this matter on appeal as if Howard pled guilty to the
assault, tampering, and PFO II charges.

                                          3
narcotics; she was not suffering from or being treated for any mental condition;

she had been advised that she could receive a sentence of life in prison; she

was not acting under force, duress, or coercion; she fully understood the

proceedings; she understood she was waiving her constitutional rights,

including the right to appeal; and her counsel had "done all that anyone could

do to counsel and assist" her. After Howard completed the form, the court

accepted her plea. Approximately six weeks later, the court entered judgment

imposing a sentence consistent with the agreement. 3 We set forth additional

background information as necessary below.

                                   II. ANALYSIS.

      The Commonwealth argues that we need not address the substance of

the issues Howard has raised on appeal because she waived her right to appeal

when she entered her plea. We agree with the Commonwealth that Howard is

entitled to waive "[a]ny right, even a constitutional right, . . . if that waiver was

made knowingly and voluntarily." Johnson v. Commonwealth, 120 S.W.3d 704,

706 (Ky. 2003), citing United States v. Ashe, 47 F.3d 770, 775-776 (6th

Cir.1995). However, the record must contain evidence that any such waiver

was in fact knowing and voluntary.      See Boykin v. Alabama, 395 U.S. 238, 244

(1969).

      In Johnson, as here, the defendant entered a guilty plea following the

jury's finding of guilt. When Johnson appealed, the Commonwealth moved to


       3 We note for the sake of completeness that the trial court ran Howard's state

sentence in this case concurrently with a sentence Howard had previously received in
a federal case.

                                          4
dismiss the appeal based on Johnson's waiver of his right to appeal. We

remanded the case to the trial court so it could determine if Johnson's waiver

was knowing and voluntary. The trial court made that finding after specifically

verifying that Johnson understood he was waiving his right to appeal. Based

on the trial court's finding that Johnson's waiver had been knowing and

voluntary, we dismissed his appeal. Id. at 705-06.

      Although Johnson is instructive, it is not dispositive. "Due process

requires a trial court to make an affirmative showing, on the record, that a

guilty plea is voluntary and intelligent before it may be accepted." Edmonds v.

Commonwealth, 189 S.W.3d 558, 565 (Ky. 2006). In Johnson, unlike here, the

trial court determined through questioning that Johnson understood he was

waiving his right to appeal, and we implicitly determined that was sufficient to

meet due process requirements. However, the court herein did not ask Howard

if she understood the ramifications of her plea or if her plea was voluntary.

Absent an on the record plea colloquy and determination by the trial court that

Howard knowingly and voluntarily entered her plea, we cannot say that

Howard was afforded all the process she was due. Therefore, we cannot say

Howard waived her right to appeal by entering a plea of guilty, and we must

address the merits of her appeal.

a.    The Trial Court did not Err in Failing to Direct a Verdict on the
      First Degree Assault Charge.

      Howard made a motion for a directed verdict at the end of the

Commonwealth's case. Relative to the first-degree assault charge, Howard



                                        5
argued that the Commonwealth had failed to prove she had caused a serious

physical injury to Mayfield. The court overruled that motion.

      As we understand it, Howard is now arguing the court should have sua

sponte directed the jury to find she was acting under extreme emotional

disturbance. This issue is unpreserved; therefore, we review it for palpable

error. Kentucky Rule of Criminal Procedure 10.26. Palpable error is an

irregularity which affects a party's substantial rights and, if not addressed on

appeal, results in a manifest injustice to the party. Schoenbachler v.

Commonwealth, 95 S.W.3d 830, 837 (Ky. 2003).

      To be entitled to a finding of extreme emotional disturbance, a defendant

must show she was acting "uncontrollably from the impelling force" of a "mind

so enraged, inflamed, or disturbed as to [have] overcome [her] judgment."      See

McClellan v. Commonwealth, 715 S.W.2d 464 (Ky. 1986). To be entitled to a

directed verdict, a defendant must show that there was not sufficient evidence

to "induce a reasonable juror to believe beyond a reasonable doubt that [she] is

guilty." Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).

      In support of her argument that she was acting under extreme emotional

disturbance, Howard notes that: she had no reason to assault Mayfield,

because she met him just seconds before the fight with Gentry began; Mayfield

hit her in the mouth harder than she had ever been hit; she had been a victim

of physical and psychological domestic violence; and her testimony that she

"blacked out" after wrecking the Cavalier and had no memory of driving the

Charger or of hitting Mayfield was unrebutted. We agree with Howard that the


                                        6
preceding evidence could support a finding by a jury that Howard was acting

under extreme emotional disturbance. However, that evidence did not compel

such a finding, particularly in light of the following evidence. Howard intended

to hit Mayfield with the Cavalier and drove around the parking lot attempting

to do so, only stopping when she wrecked that car. She then got out of the

Cavalier, got into the Charger, maneuvered around the Cavalier, paused to let

traffic on the street pass, and then drove across the street where she hit

Mayfield. After hitting Mayfield, Howard returned to the Speedway to get

Gentry and, later that day, called the police to see about retrieving the Cavalier.

From this evidence a reasonable juror could infer that Howard, although

perhaps acting with a malicious purpose, was in control of her faculties and

knew what she was doing. Therefore, the trial court's failure to direct the jury

to find that Howard was acting under extreme emotional disturbance was not

error, palpable or otherwise.

b.   The Court did not Err When It Denied Howard's Motion for Directed
Verdict on the Tampering With Evidence Charge.

      During trial, witnesses testified that, following Howard's collision with

Mayfield and the parked car, the Charger's air bags had deployed and its

windshield had been broken. The police did not recover the Charger until

approximately three weeks after the incident. By that time, the windshield and

air bags had been repaired, leading to the tampering with evidence charge.

      Howard moved for directed verdict on the tampering with evidence

charge, noting that the Charger did not belong to either her or Gentry.

Furthermore, Howard noted the Commonwealth had put forth no evidence
                                         7
establishing where the Charger had been during those three weeks or who had

possession of it. The Commonwealth argued the Charger had been damaged,

Howard was in control of it at that time, the Charger had been repaired, and

Howard was in control of the Charger and was in the process of replacing a

headlight when the police found it. The court, in denying Howard's motion,

noted that a reasonable juror could infer from the facts that Howard had

repaired the Charger.

      On motion for directed verdict, the trial court must draw all fair
      and reasonable inferences from the evidence in favor of the
      Commonwealth. If the evidence is sufficient to induce a reasonable
      juror to believe beyond a reasonable doubt that the defendant is
      guilty, a directed verdict should not be given. For the purpose of
      ruling on the motion, the trial court must assume that the
      evidence for the Commonwealth is true, but reserving to the jury
      questions as to the credibility and weight to be given to such
      testimony.

Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). In reviewing a

trial court's denial of a motion for a directed verdict we must determine "if,

under the evidence as a whole, it would be clearly unreasonable for a jury to

find guilt." Id.

      Although there was not a significant amount of direct evidence that

Howard tampered with evidence, the Commonwealth presented sufficient

circumstantial evidence to support a finding of guilt on the tampering with

evidence charge. See Graves v. Commonwealth, 17 S.W.3d 858, 862 (Ky. 2000)

("[A] [c]onviction can be premised on circumstantial evidence of such nature

that, based on the whole case, it would not be clearly unreasonable for a jury

to find guilt beyond a reasonable doubt.") Therefore, we hold that the trial


                                         8
court's denial of Howard's motion for directed verdict on- the tampering with

evidence charge was not error.

                                 III. CONCLUSION.

      For the preceding reasons, we affirm.

      All sitting. All concur.


COUNSEL FOR APPELLANT:

William David Elkins
Elkins Law Office, LLC

COUNSEL FOR APPELLEE:

Jack Conway
Attorney General of Kentucky

Leilani K.M. Martin
Assistant Attorney General

Raymond M. Larson
Commonwealth Attorney




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