                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         NOT TO BE PUBLISHED OPINION

  THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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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              .                    .
   BEFORE THE COURT. OPINIONS CITED FOR CONS.IDERATION
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                                                RENDERED: SEPTEMBER 28, 2017
                                                        NOT TO BE PUBLISHED




                                  20 l 7-SC-000300-TG            y    ~
                                 (2016-CA-001731-MR)"     [Q)~ LI [f;lOllC\h., ll,~ ~"'°"' oc.


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 this judgment upon Liggett's guilty

plea and imposed the sentence consistent with the plea .bargai~ agreement

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

erred when it denied his motion made b,efore. 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



I   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 grand 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 enter a guilty plea, Liggett declared in writing the

following:

           I declare my ple_a of "GUILTY" is freely, knowingly, intelligently and
           voluntarily made; that l 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.
                                               -,
           Before accepting Liggett's guilty plea, the trial court conducted a Boykin

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

colloquy, Liggett stated und~r oath: he has a 12th grade education and can

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

constitutiQnal rights; he fully understood what was happening in his case; he



 2   KRS 510.070(2); KRS 532.060(2)(a) .
.3   Boykin v. Alabama, 395 U.S. 23.8 (1969).

                                                2
had sufficient time to _discuss the plea with counsel; he had no C()mplaints

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

guilty, hut 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 the crime arid

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 coUoquy, the trial court accepted Liggett's guilty plea,

finding it to be knowingly, 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 a~vice 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 attorneyrdid not attend all court appearances, instead
      another attorney that ·was not adequately advi~ed 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 criine and stated that his sentence was fair.· All these facts, the trial cou~t

 found, refuted Liggett's more recent allegatfons 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 acco.rdingly.

                                          II. ANALY'.SIS.

    A. Standard of Review.

        An appellate court reviews the trial court's denial of ~1 motion to withdraw

 a guilty p~ea 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 renders a decision which is ·arbitracy,

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



 4 Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky. App. 2004) (citing Bronk. v. Commonwealth,
 58 S.W.3d 482, 489 (Ky. 2001) (Cooper, J., concurring)).
 s Rigdon, i44 S.W.3d at 288 (citing Baltimore v. Commonwealth, 119 S.W ..3d 532 (Ky. App. 2003)).
 6 Rigdon, 144 S.W.3d at 288 (citing Bronk, 58 S.W,3d at 487). These cases 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).
 7 Rigdon, 144 S.W.3d at 288 (citing Goodyear Tlre & Rubber Co. v. Thompson, 11 S.W.3d 575,
 58.1 (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 court 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

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

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

sentencingjudge."13 "Solemn· declarations in open.court carry a strong

presumption of verity."14

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

"consider the totality of circumstances surrounding the guilty plea and

j~tapose    the presumption of voluntariness inherent. in a proper plea colloquy




s Bronk, 58 S.W.3d.at 486.
9 Centers v. Commonweal.th, 799 S.W.2d 51, 54 (Ky. App. 1990) (citing North 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.                                               .                                 .
~K                                 .         .
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)).    .                                                ·
14 Centers, 799 S.W.~d 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 couns~l'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 that·the defendant would not have
         pleaded guilty, 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 guilty plea does not, absent more, establish ineffective

assistance of counsel; it is only a factor to be considered in the tot8.Iity of
              ..
circumstances."18 While limited communications between an attorney

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

         "A ~onclusory
                .
                       allegation
                             .
                                  tO the effect that
                                                   .
                                                     absent
                                                        .
                                                            the error the.

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

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

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

would have been rational" under the circumsta,nces.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



15   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).
ia Rigdon, 144 S.W.3d at 290 (citing Jones v. Parke, 734 F.2d 1142, 1146-47 (6th Cir. 1984)).
i9 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 u~derstanding

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
    " aside the guilt:Y, plea. Even viewing Liggett's allegations in the light most
to set

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 ineffective 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       tri~l   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 have pleaded guilty and would have insiste.d on

going to trial .

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

imprisonment that was half the length of the sentepce 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 faced this possibility than

accept the guilty plea offer.

     The question is whether the trial court's findings are supported by
                 .                -
substantial eviqence.; 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 state_d :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 decision

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

principles.23 Stated differently, nothing in the record          c~ls   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

 suppoi:-ted the trial court's ruling regarding the voluntariness of the guilty plea,

and thus the ·trial c.ourt committed no clear error on the fact, and because    the
 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
