         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    NOT TO BE PUBLISHED OPINION


 THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
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RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
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OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
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                                                 RENDERED : FEBRUARY 22, 2007
                                                        NOT TO BE PUBLISHED


              ,$uyrrme Courf of ~i
                              NO. 2005-SC-000957-MR
                                                          uQU
 TIMOTHY DWAYNE MORMAN                                                   APPELLANT


                   APPEAL FROM JOHNSON CIRCUIT COURT
 V.                  HONORABLE DANIEL SPARKS, JUDGE
                        INDICTMENT NO. 04-CR-00160


COMMONWEALTH OF KENTUCKY                                                  APPELLEE


                    MEMORANDUM OPINION OF THE COURT

                            AFFIRMING IN PART
                                  AND
                     VACATING AND REMANDING IN PART


                                I. INTRODUCTION .

              Timothy Dwayne Morman appeals from the judgment of conviction

and sentence on two counts of second-degree sodomy and two counts of

second-degree rape . He argues that the judgment should be vacated because

the trial court erred by (1) denying his motion to withdraw his guilty pleas ; and

(2) imposing a forty-year sentence, which exceeds the maximum sentence

permitted by Kentucky Revised Statutes (KRS) 532.110 .

              We hold that the trial court did not abuse its discretion when it

denied Morman's motion to withdraw his guilty plea but that Morman's sentence

does exceed the maximum allowed by KRS 532.110 . Thus, we affirm Morman's
     convictions ; but we vacate his sentence and remand the case to the trial court for

     imposition of a new sentence.


                          II. FACTS AND PROCEDURAL HISTORY.

                    The grand jury indicted Morman on twelve counts of second-degree

     sodomy, twelve counts of second-degree rape, one count of using a minor in a

     sexual performance, and for being a persistent felony offender in the first degree

     (PFO I). Those charges all stemmed from Morman's admitted sexual relation-

    ship with a thirteen-year old girl .

                   Morman originally decided to accept the Commonwealth's plea

    offer; but, on the date set for his court appearance on the charges, Morman

    changed his mind and rejected the plea offer. At that aborted hearing, Morman

    stated that he didn't "know anything about the case" because his attorney had

    only visited him once. By contrast, Morman's attorney told the trial court that he

    had visited Morman at the jail three times and that his investigator had been

    there twice . The trial court denied Morman's oral request for a new attorney but

    stated that if Morman "continu[ed] to be dissatisfied prior to trial[,] the Court will

consider any motions made at that time ."

                   Several months later, Morman, again, reversed course and decided

to accept a plea offer from the Commonwealth in which Morman agreed to plead

guilty to two counts of second-degree rape and two counts of second-degree

sodomy in exchange for dismissal of the other charges. During the Boykin'

colloquy with the trial court, Morman stated that he was fully satisfied with his


       Boykin v. Alabama , 395 U.S . 238 (1969) .
1
 attorney's representation and that he had had all the time necessary to confer

with his attorney .

               By the time of the sentencing hearing, approximately one month

later, Morman had changed his mind again . He, again, complained about his

attorney but for different reasons . At that hearing, Morman asked to withdraw his

guilty plea because he believed he had been "misrepresented" by his attorney

and that his attorney "has been prejudiced and biased with this case from the

beginning. . . . [And his attorney had] intimidated [him into] taking a blind plea by

scaring [him] with life in prison and in saying that he believed the jury would give

[him] more time than the Commonwealth was offering because [he] didn't have

any defense in [his] case ."

              The trial court denied Morman's oral motion noting that Morman

could have received a very lengthy sentence if the matter had proceeded to trial

and, furthermore, that Morman had stated during the Boykin colloquy that he was

satisfied with his attorney's representation and was pleading guilty voluntarily .

The trial court concluded that "the only reason that you [Morman] want to

withdraw your plea now is that you perhaps accurately perceived that this Court

is not going to go lightly as far as a sentence to be imposed ." The trial court then

imposed the maximum ten-year sentence on all four counts (two counts of

second-degree rape and two counts of second-degree sodomy), to be served

consecutively, for a total sentence of forty years . Morman then appealed .
                                     111. ANALYSIS.

                               A. Standard of Review.

               Kentucky Rules of Criminal Procedure (RCr) 8 .10 provides, in

 relevant part, that "[a]t 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 ." Because "[a] guilty plea is valid only when it is entered [into]

intelligently and voluntarily[,], ,2 a trial court should determine, on the record,

whether the plea was made voluntarily before ruling on a motion to withdraw a

guilty plea . If the trial court finds that the plea was involuntary, it must permit the

defendant to withdraw his plea . But if the trial court determines that the plea

was voluntary, it then has the discretion to either grant or deny the motion .s

              In order to determine if a guilty plea was made voluntarily, a court

must "consider the totality of the circumstances surrounding the guilty plea[.]',6

Although not necessarily denominated as such, it appears that Morman's oral

motion to withdraw his guilty plea was based on the perceived ineffectiveness of

his counsel . When the motion to withdraw the plea is based upon a claim of

ineffective assistance of counsel, a trial court must undertake "an inherently




   Bronk v. Commonwealth, 58 S.W .3d 482, 486 (Ky. 2001).

   Rigdon v. Commonwealth , 144 S .W.3d 283, 287-88 (Ky.App. 2004) .

   Rodriguez v. Commonwealth , 87 S .W.3d 8, 10 (Ky. 2002).
   Id.

   Bronk, 58 S.W.3d at 486.
     factual inquiry[.]"' "Generally, an evaluation of the circumstances supporting or

     refuting claims of coercion and ineffective assistance of counsel requires an

     inquiry into what transpired between attorney and client that led to the entry of

    the plea, i.e., an evidentiary hearing ."a

                       We review a trial court's determination regarding the voluntariness

    of a guilty plea under a clearly erroneous standard s but review a trial court's

    decision to deny a motion to withdraw a plea that it has determined was

    voluntarily made under an abuse of discretion standard .'° A decision that is

    supported by substantial evidence is not clearly erroneous ." A trial court abuses

    its discretion only when it acts arbitrarily, unreasonably, unfairly, or outside of

 sound legal principles ."

                       Our task is, first, to determine if the trial court decided that

 Morman's plea was made voluntarily . If so, we review that decision under the

 clearly erroneous standard . If we determine that the trial court did not clearly err

 in determining that Morman's plea was voluntarily entered, we then determine

whether the trial court's decision to deny Morman's motion to withdraw his guilty

plea was so unfair as to constitute an abuse of discretion .




       Id. at 489 (Cooper, J ., concurring) .

       Rodriguez, 87 S.W.3d at 11 .
s
       Ri don, 144 S.W.3d at 288 (citing Bronk , 58 S.W.3d at 489 (Cooper, J., concurring)) .
10
       Id. (citing   Bronk, 58 S.W.3d at 487) .

       Id.
12
       Id.
                  B. The Trial Court's Decision to Deny Morman's
                     Motion to Withdraw His Guilty Plea Was Neither
                     Clearly Erroneous Nor an Abuse of Discretion .

                The record does not reflect an express finding by the trial court

 regarding the voluntariness of Morman's plea . But shortly before denying

 Morman's motion to withdraw his guilty plea, the trial court recalled its colloquy

 with Morman at length and reminded Morman that he had stated, under oath,

 during that colloquy that his plea was voluntary and that he was satisfied with his

 attorney's representation . And the trial court essentially found that Morman met

all of the Boykin requirements . Bovkin 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. "13 So, though better practice would certainly have

been for the trial court to have made an explicit finding that Morman's plea was

made voluntarily, we will construe the trial court's comments regarding its Boykin

colloquy with Morman as the functional equivalent of a finding that Morman's

plea was voluntarily made . Therefore, we must next attempt to determine

whether the trial court clearly erred when it concluded that Morman's plea was

voluntary .

                At the time he entered his plea, Morman stated, under oath, that he

had freely and voluntarily decided to accept the Commonwealth's plea offer.

Although we recognize that the question of whether a plea was voluntary does

not depend upon "reference to some magic incantation recited at the time it is



'3
     Edmonds v. Commonwealth, 189 S.W .3d 558, 565 (Ky. 2006) (citing Boykin ,
     395 U .S . at 241-42).
     taken[, y,14 we also are aware that "[s]olemn declarations in open court carry a

     strong presumption of verity . 05 The purportedly voluntary nature of Morman's

     plea is not supported solely by his own statements under oath, however, since

     Morman's counsel also stated (at the time the plea was entered) that Morman

 was aware of the charges against him and his constitutional rights and,

 furthermore, that Morman was pleading guilty voluntarily. We note that Morman

 received a benefit from his decision to plead guilty because the Commonwealth

 agreed to dismiss numerous other charges.

                   "A criminal defendant may demonstrate that his guilty plea was

 involuntary by showing that it was the result of ineffective assistance of

 counsel ."'s And a guilty plea may be attacked on the grounds that the

 defendant's attorney was ineffective." But, in order to show ineffective

 assistance of counsel, Morman was required to 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 process that, but for the errors of

counsel, there is a reasonable probability that the defendant would not have




14
       Kotas v. Commonwealth , 565 S.W.2d 445, 447 (Ky. 1978).
15
       Centers v. Commonwealth , 799 S.W .2d 51, 54 (Ky.App. 1990).
16
       Ri don, 144 S.W.3d at 288.
17
       Rodriguez , 87 S.W .3d at 10.
     pleaded guilty, but would have insisted on going to trial . "'8 Morman simply has

     not satisfied those requirements.

                  An attorney is not constitutionally ineffective for merely advising a

 client to plead guilty in order to receive a lesser sentence.'9 Thus, Morman's

 attorney did not fall below an objective standard of reasonableness based solely

 on his advising Morman to plead guilty in light of the Commonwealth's offer to

 dismiss several charges and, especially, in light of the fact that Morman had

 already confessed to having a sexual relationship with the victim .

                  Morman's motion to withdraw his guilty plea contains no showing

 that Morman was prejudiced by his counsel's performance such that he would

 have insisted on going to trial, absent his counsel's allegedly improper conduct.

Although Morman disagreed, Morman's counsel's alleged comment that Morman

would have received a greater sentence had he gone to trial appears to have

been a reasonable assessment of the evidence, given the nature of the charges

against Morman and the confession he had given to the police . In short, Morman

has not shown that his counsel performed in a constitutionally deficient manner

meaning that the trial court did not clearly err when it determined that Morman's

plea was voluntary .

                  Morman's generic motion and brief make no concrete allegation

that the lack of a formal hearing caused him to suffer specific, identifiable

prejudice (e.g., that he was unable to present any specific evidence or witness to


18
       Bronk, 58 S.W .3d at 486-87.
19
       See, e.g., Commonwealth v. Campbell , 415 S.W.2d 614, 616 (Ky. 1967).
     the trial court in support of his motion) . Thus, we do not believe the lack of a

     formal hearing on Morman's motion rises to the level of reversible error. In short,

     after considering the totality of the circumstances of this case, including the lack

     of identifiable prejudice to Morman and his statements under oath that he was

     pleading guilty voluntarily and that he was satisfied with his counsel's

     performance, we hold that the trial court did not abuse its discretion when it

     denied Morman's motion to withdraw his voluntarily entered guilty plea.

                C. Morman's Forty-Year Sentence Violates KRS 532.110.

                    Morman contends that his maximum sentence should have been

 twenty years' imprisonment under KRS 532 .110(1)(c) . Although it does not

 concede the correctness of Morman's argument, neither does the Common-

 wealth argue that Morman's sentence was proper.

                   KRS 532 .110(1)(c) provides that if a person is convicted of multiple

 crimes, a trial court may choose to run the sentences for each conviction concur-

 rently or consecutively, except that "[t]he aggregate of consecutive indeterminate

 terms shall not exceed in maximum length the longest extended term which

would be authorized by KRS 532.080 for the highest class of crime for which any

of the sentences is imposed." Both second-degree rape and second-degree

sodomy are Class C felonies .20 Thus, under KRS 532 .080(6)(b), Morman's

maximum sentence is twenty years' imprisonment.



20
       See KRS 510.080(2) (Sodomy in the Second Degree) ; KRS 510.050(2) (Rape in the
       Second Degree) .
21
       KRS 532 .080(6)(b) provides that "[i]f the offense for which he presently stands
       convicted is a Class C or Class D felony, a persistent felony offender in the first
                 The requirements of KRS 532 .110(1)(c) may be waived, provided

 such a waiver is knowingly and voluntarily made .22 Nevertheless, there is no

 indication that Morman voluntarily entered into such a waiver. However, Morman

 also did not contemporaneously object to his improper sentence. Thus, our

 review is limited to a palpable error review under RCr 10.26, which provides that

 "[a] palpable error which affects the substantial rights of a party may be

 considered by the court on motion for a new trial or by an appellate court on

 appeal, even though insufficiently raised or preserved for review, and appropriate

 relief may be granted upon a determination that manifest injustice has resulted

 from the error."

                For an error to be palpable, it must be "easily perceptible, plain,

 obvious and readily noticeable."23 A palpable error "must involve prejudice more

 egregious than that occurring in reversible error[ .],24 A palpable error must be so

 grave that if it were uncorrected, it would seriously affect the fairness of the

proceedings.25 Thus, what a palpable error analysis "boils down to" is whether

the reviewing court believes there is a "substantial possibility' that the result in




     degree shall be sentenced to an indeterminate term of imprisonment, the maximum
     of which shall not be less than ten (10) years nor more than twenty (20) years."
22
     See, e.g., Myers v. Commonwealth , 42 S.W.3d 594 (Ky. 2001) .
23
     Burns v. Level , 957 S.W .2d 218, 222 (Ky. 1997) (citing BLACK'S   LAw DICTIONARY
     (6th ed. 1995)) .
24
     Ernst v. Commonwealth , 160 S.W .3d 744, 758 (Ky. 2005).
25




                                            10
 the case would have been different without the error. If not, the error cannot be

 palpable .

                Although the parties do not engage in a detailed palpable error

 analysis, and we do not condone Morman's counsel's failure to object to an

 improper sentence, we think it plain that Morman suffered obvious prejudice and

 injury to his substantial rights when he was sentenced to a term of imprisonment

 double that permitted under the law. Accordingly, we vacate Morman's sentence

 and remand this case to the trial court with instructions to sentence Morman in

 accordance with the limitations imposed by KRS 532.110(1)(c).


                                  IV. CONCLUSION.

                For the foregoing reasons, Timothy Morman's convictions for two

 counts of second-degree sodomy and two counts of second-degree rape are

 affirmed ; but his forty-year sentence is reversed, and this matter is remanded to

the trial court for re-sentencing consistent with this opinion .

               All concur .




26
     Schoenbachler v. Commonwealth, 95 S.W.3d 830, 836 (Ky. 2003) (quoting
     Abernaty v. Commonwealth , 439 S.W.2d 949, 952 (Ky. 1969)) .
COUNSEL FOR APPELLANT :

Donna L. Boyce
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601


COUNSEL FOR APPELLEE:

Gregory D. Stumbo
Attorney General of Kentucky

Wm. Robert Long, Jr.
Assistant Attorney General
Office of Criminal Appeals
Office of Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
