             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        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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 THECOURT. 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 BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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: DECEMBER 17, 2015
                                                      NOT TO BE PUBLISHED

                  0 ,Suprrinr (Iiinrf of 7firtItarAg.,-,\
                                    2014-SC-000469-MR
                                           AND
                                    2014-SC-000534-MR




KIRBY BRYAN RUANO                                                    APPELLANT


                      ON APPEAL FROM FAYETTE CIRCUIT COURT
V.                    HONORABLE ERNESTO SCORSONE, JUDGE
                                 NO. 12-CR-01233


COMMONWEALTH OF KENTUCKY                                              APPELLEE




                      MEMORANDUM OPINION OF THE COURT

                             VACATING AND REMANDING

      The trial court accepted Kirby Bryan Ruano's guilty plea; but Ruano filed

a motion with to withdraw that guilty plea before sentencing. After questioning

Ruano and his counsel, the trial court denied Ruano's motion and sentenced

him in accordance with the plea agreement to thirty years' imprisonment for

murder and ten years' imprisonment for robbery, to run concurrently, for a

total sentence of thirty years.

       Ruano now appeals as a matter of right' the trial court's summary

denial of his motion to withdraw his guilty plea after a discussion on the record

with Ruano and his counsel. We conclude that the trial court's informal


       1   Ky.Const. § 110(2)(b).
 disposition of Ruano's motion to withdraw his guilty plea compromised his

 right to conflict-free counsel. So we vacate the judgment and the order denying

 Ruano's motion to withdraw his guilty plea and remand the matter to the trial

court for further proceedings.


                I. FACTUAL AND PROCEDURAL BACKGROUND.
        Ruano and two others were indicted on charges of murder and robbery.

The indictment contained a capital-offense classification and alleged the crime

was committed with aggravating circumstances. The Commonwealth did not

file its notice of aggravators for more than a year after the return of the

indictment.

        After the Commonwealth filed its notice of aggravators, Ruano moved to

exclude aggravated penalties, arguing that if the Commonwealth intended to

seek them, it should have given notice much sooner. Until the

Commonwealth's notice of aggravated penalties, Ruano's counsel had been

preparing for trial as if the case were non-capital. But before the scheduled

hearing on Ruano's motion to exclude the aggravated penalties, Ruano reached

a plea agreement with the Commonwealth. So the trial court conducted a

proper plea colloquy with Ruano and accepted his guilty plea. The trial court

delayed sentencing while one of Ruano's co-defendants stood trial. Ruano

moved the court to withdraw his plea before a sentencing hearing could be

held.

        The trial court questioned Ruano and counsel about the grounds for

Ruano's motion before denying it. The trial court then sentenced Ruano

                                         2
according to the terms of his plea agreement and entered judgment

accordingly.


                                     II. ANALYSIS.
       Kentucky Rules of Criminal Procedure (RCr) 8.10 provides that "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." 2 As the rule

indicates, the decision on the motion to withdraw a guilty plea is committed to

the sound discretion of the trial court. That is true with a single exception: if a

defendant alleges his plea was "entered involuntarily[, he] is entitled to a

hearing on the motion." 3 And if the trial court then finds a defendant

involuntarily entered his guilty plea, that defendant's RCr 8.10 motion must be

granted. 4 We review a trial court's decisions on such motions for an abuse of

discretion. The trial court's determination of whether the defendant voluntarily

entered the plea, though, is reviewed for clear error, i.e., "whether the

determination was supported by substantial evidence." 5

      Ruano's challenge to the trial court's denial of his withdrawal motion is

effectively two-pronged: (1) the trial court erroneously denied his withdrawal

motion without holding an evidentiary hearing; or, in the alternative, (2) the

process followed by the trial court to decide the motion effectively denied him

the right to counsel afforded by the Sixth Amendment to the United States

       2   Emphasis added.
       3   Williams v. Commonwealth, 229 S.W.3d 49, 51 (Ky. 2007).
       4   Edmonds v. Commonwealth, 189 S.W.3d 558, 566 (Ky. 2006).
       5   Id. at 566 (citing Rodriguez v. Commonwealth, 87 S.W.3d 8, 10-11 (Ky. 2002)).

                                            3
Constitution and Eleventh Amendment to the Kentucky Constitution. And if

his rights were violated, Ruano contends we should remand the case for an

evidentiary hearing with conflict-free counsel.

       In fact, the trial court did conduct a hearing during which Ruano and his

counsel were questioned about Ruano's RCr 8.10 motion. However, neither

Ruano nor his counsel was placed under oath. Ruano told the trial court that

just before he was offered the plea deal his girlfriend heard that "people would

handle him" if he returned to the streets. Ruano said he took this as a threat

and grew concerned about the safety of his family if he were out of prison with

them. Also, Ruano told the trial court he was given less than twenty-four

hours to review the terms of the plea deal—a length of time in retrospect Ruano

felt was unfair. Finally, Ruano said he was pressured'by the Commonwealth's

late notice of its intent to seek the death penalty.

      The trial court responded by reminding Ruano of the extensive colloquy

they had when Ruano entered his guilty plea. According to the trial court, at

no point during that guilty-plea colloquy did Ruano indicate that the guilty plea

was contrary to his wishes or otherwise involuntary. Ruano indicated he

understood the terms of the guilty plea and the ramifications of his acceptance.

The trial court asked Ruano if he had answered truthfully all the questions

during his guilty-plea colloquy. Ruano's first response was that he had not

been truthful during his guilty-plea colloquy; but after the trial court allowed

him time to consult with counsel, Ruano changed his response to say that he

had been truthful during the guilty-plea colloquy.

                                          4
           The trial court is free to deny a motion under RCr 8.10 without an

 evidentiary hearing, "if the allegations in the motion are inherently unreliable,

 are not supported by specific facts or are not grounds for withdrawal even if

 true."6 After all, a[s]olemn declarations in open court carry a strong

presumption of verity. The presentation of conclusory allegations unsupported

by specifics is subject to summary dismissal, as are contentions that in the

face of the record are wholly incredible." 7 But trial courts must be cautious in

taking this tack because "the validity of a guilty plea is not determined by

reference to some magic incantation recited at the time it is taken," 8 i.e. the

validity of a guilty plea is not determined from "specific key words uttered at

the time [it] was taken, but from considering the totality of the circumstances

surrounding the plea." 9

       In summary, if a defendant fails to present any specific allegations

pertaining to the involuntariness of his plea, it is not then error for the trial

court to rely solely on the record and summarily deny the defendant's motion

to withdraw a guilty plea.'° Of course, we do not go so far as to say a trial


           6   United States v. Harris-Thompson, 751 F.3d 590, 603 (8th Cir. 2014).
           7   Edmonds, 189 S.W.3d at 569 (quoting Blackledge v. Allison, 431 U.S. 63, 74
(1977)).
           8   Bronk v. Commonwealth, 58 S.W.3d 482, 487 (Ky. 2001).
           9   Centers v. Commonwealth, 799 S.W.2d 51, 54 (Ky.App. 1990).
        10 It is important to note that the basis for Ruano's withdrawal motion, in so
many words, was that his plea was involuntary. If a plea was entered involuntarily,
the trial court must grant the motion to withdraw. See Rodriguez v. Commonwealth,
87 S.W.3d 8, 10 (Ky. 2002). Discerning whether or not a plea was entered
involuntarily mandates "[e]valuating the totality of the circumstances surrounding the
guilty plea [which] is an inherently factual inquiry." Commonwealth v. Tigue,
459 S.W.3d 372, 387 (Ky. 2015) (quoting Bronk, 58 S.W.3d at 487 (alterations in
                                                5
court may always simply rely on its Boykin colloquy when faced with a motion

to withdraw a guilty plea; but we do say that a defendant must present a

colorable argument before a trial court is required to hold an evidentiary

hearing on the motion to withdraw a guilty plea. Perhaps Ruano's allegations

were facially insufficient, 11 but that determination is irrelevant now because

the trial court ruled on Ruano's motion in a summary fashion but undertook

an informal inquiry of Ruano and his counsel regarding the merits and facts of

his claim. Ostensibly, the trial court did not feel Ruano's claims warranted an

evidentiary hearing but did have Ruano and his counsel provide the factual

background concerning Ruano's claims.

        We find this approach problematic. Ruano asserts that his Sixth and

Fourteenth Amendment rights were abridged because he was not provided

conflict-free counsel at the trial court's inquiry into the merits of his

withdrawal motion. Ruano was not provided new counsel for his plea

withdrawal hearing. The same attorney who negotiated the plea with the

original)). Generally speaking then, a defendant is entitled to an evidentiary hearing
when he makes allegations that he involuntarily agreed to the guilty plea. Ruano
makes such allegations here, just in a highly conclusory and vague manner.
       11 Ruano's contentions, even if true, do appear facially weak. Ruano may have
had twenty-four hours to review the terms of the plea agreement, but plea negotiations
and discussions between the Commonwealth and Ruano's counsel had been underway
for weeks. The Commonwealth's plea offer did not blindside Ruano. The same
analysis applies to the Commonwealth's late announcement that it would seek the
death pehalty. Ruano was indicted for a capital offense. So the death penalty was
always looming, any promises or indications expressed or implied by the
Commonwealth notwithstanding. As for Ruano's allegations of threats to his family,
these do not constitute the type of coercion imagined when discussing the
voluntariness of a guilty plea. The federal Constitution as well as our own
Constitution protect citizens from governmental coercion, manipulation, or
oppression. Even if Ruano's girlfriend received threats, it would say nothing about the
government's alleged role in coercing Ruano to enter a guilty plea.

                                           6
 Commonwealth also represented him at the hearing. According to Ruano,

 then, his counsel was given the impossible role of both defending him while

 serving as a witness on behalf of the guilty plea that she herself negotiated. In

fact, at the beginning of the trial court's inquiry, Ruano's counsel made the

trial court aware that Ruano's decision to withdraw his plea was against her

advice. This alleged error is not preserved for our review, so Ruano requests

palpable-error review. 12

       We recently undertook an exhaustive review of a defendant's right to

counsel during proceedings to withdraw a guilty plea. 13 We will not repeat that

here; but we should stress that a proceeding to withdraw a guilty plea "is vital

to ensur[e] the integrity of the process by which guilt may ultimately be

determinedn 14 and, perhaps as a result, constitutes a "critical stage[] of the

criminal proceeding,” 15 entitling a defendant to counsel. Ruano was

accompanied by counsel at the instant hearing, but he alleges the

circumstances were so inherently prejudicial that his constitutional right to

counsel was violated per se. As we acknowledged in Tigue, the Supreme Court

has identified particular circumstances "where although counsel is available to

assist the accused during trial, the likelihood that any lawyer, even a fully


      12 See RCr 10.26. A violation of constitutional rights is almost always
considered a palpable error, unless, of course, the error is harmless beyond a
reasonable doubt—a much higher standard than our typical harmless-error review.
See Chapman v. California, 366 U.S. 18, 24 (1967).
       13   See Tigue, 459 S.W.3d at 372.
       14   Id. at 384 (quoting United States v. Davis, 239 F.3d 283, 286 (2d Cir. 2001)).
      15 Montejo v. Louisiana, 556 U.S. 778, 786 (2009) (citing United States v. Wade,
388 U.S. 218, 227-28 (1967); Powell v. Alabama, 287 U.S. 45, 57 (1932)).

                                              7
 competent one, could provide effective assistance is so small that a

 presumption of prejudice is appropriate without inquiry into the actual conduct

of the trial." 16 The two situations are a complete denial of counsel at a critical

stage and when counsel is afflicted by an actual conflict of interest. Of these,

Ruano, of course, does not argue he was denied counsel completely but that

his counsel was "burdened by an actual conflict of interest." 7

       The facts here present a close call. Some of Ruano's allegations do not

concern his counsel's behavior. Like Tigue, Ruano was represented at the

hearing by his trial counsel. Ruano's counsel was confronted with arguing

Ruano experienced coercion while simultaneously arguing Ruano's plea was

voluntary. Counsel was not responsible for the Commonwealth's seeking the

death penalty late in the case or the threats Ruano's girlfriend received. The

only aspect in which counsel may have been involved would be the alleged

compressed timeline for accepting the Commonwealth's plea offer. But Ruano

does not suggest his counsel was responsible for the compressed timeline.

       Ruano also argues that his counsel argued against him and did not

effectively investigate or present his claims of coercion. Counsel did inform the

trial court that Ruano's withdrawal motion was against her advice but that, in

and of itself, is not indicative of an actual conflict. Attorneys may disagree with

their clients while remaining capable of proceeding in a diligent manner.


       16Tigue, 459 S.W.3d at 384-85 (internal quotation marks omitted) (quoting
United States v. Cronic, 466 U.S. 648, 659-60 (1984)).
      17 Smith v. Robbins, 528 U.S. 259, 287 (2000) (quoting Strickland v. Washington,
466 U.S. 668, 692 (1984)).

                                          8
Additionally, Ruano highlights a particular portion of the informal hearing as

indicative of his counsel's conflict and opposition to his withdrawal motion.

Counsel conferred with Ruano after Ruano informed the trial judge he gave

false statements during his plea colloquy. Following the conference, Ruano

recanted that assertion and reiterated his previous statements were true.

Ruano presents this situation as proof that counsel acted against his interests

to benefit hers, i.e., she was interested in preserving the plea she had

negotiated. Of course, counsel may have been more concerned with Ruano

committing perjury than preserving the plea deal; but Ruano's counsel's

position contrary to his interests and wishes is troublesome.

      Perhaps Ruano is correct in arguing that different counsel would have

investigated his allegations further and asserted them more clearly—that is

exactly the point. We cannot endorse the trial court's approach to resolving

Ruano's withdrawal motion. Ruano effectively testified about his allegations

and then his counsel effectively testified about her experience during the plea

negotiations. To say the trial court's discussion on the record was not palpable

error would be to overlook our unbroken refrain that an attorney should not

testify at trial. In Tigue, we discussed an attorney simply being silent at a

withdrawal hearing and the harmful impact that would have on a defendant's

right to counsel. In addition, we noted an attorney's advocacy contrary to the

defendant's creates an actual conflict. This case may not present as clean an

example of an actual conflict, but a conflict exists nonetheless. We are unable

to conclude that Ruano's right to counsel was honored. And we cannot

                                        9
approve of the trial court's choice to resolve possible issues of fact so

informally. So we are constrained to conclude that Ruano suffered a manifest

injustice. 18

       As we outlined in Tigue, the proper remedy is to vacate Ruano's

judgment of conviction and "rewind this matter to the point in time when

[Ruano] had already entered his plea but before he was sentenced.” 19 Ruano,

of course, may seek again to withdraw his guilty plea. If so, and if the trial

judge holds a hearing, Ruano is entitled to new counsel.

                                  III. CONCLUSION.
       For the foregoing reasons, we vacate the judgment and the order denying

Ruano's motion to withdraw his guilty plea. The case is remanded to the

circuit court for further proceedings consistent with this opinion.

       Minton, C.J.; Abramson, Cunningham, Keller, Noble, Venters, JJ.,

sitting. All concur. Wright, J., not sitting.




      18   Martin v. Commonwealth, 409 S.W.3d 340, 344 (Ky. 2013).
      19   Tigue, 459 S.W.3d at 390.

                                          10
COUNSEL FOR APPELLANT:

Kathleen Kallaher Schmidt
Assistant Public Advocate


COUNSEL FOR APPELLEE:

Jack Conway
Attorney General of Kentucky

Courtney J. Hightower
Assistant Attorney General

Andrea Leigh Mattingly
Assistant Commonwealth's Attorney
Office of the Fayette Commonwealth's Attorney




                                     11
