CLYDE RAY THACKER v. COMMONWEALTH OF KENTUCKY
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RENDERED: June 25, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court Of Appeals
NO. 2003-CA-000263-MR
CLYDE RAY THACKER
APPELLANT
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE EDDY COLEMAN, JUDGE
CIVIL ACTION NO. 02-CR-00037
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, McANULTY, and MINTON, Judges.
MINTON, Judge:
Clyde Ray Thacker appeals as a matter of right1
from the Pike Circuit Court’s denial of his motion to withdraw
his guilty plea.
Thacker asserts that the denial of this motion
was an abuse of discretion for the following reasons:
1) he was
prejudiced by joint legal representation with a co-defendant,
Johndra Baldridge; 2) his guilty plea was not entered freely,
1
Ky. Const. § 110.
voluntarily,
and
knowingly
because
it
was
the
product
of
ineffective assistance of counsel since his counsel had neither
adequately
prepared
for
trial
nor
adequately
consulted
with
Thacker; 3) there was no factual basis to support the guilty
plea; and 4) he had a meritorious defense.
For the reasons
stated below, we affirm the circuit court’s decision.
On March 4, 2002, a Pike County grand jury indicted
Thacker and Johndra Baldridge2 on one count each of assault in
the
first
degree3
for
shooting
Curtis
County on or about October 30, 2001.5
services
of
representing
attorney
Baldridge
Robert
in
Wright
this
Michael
Hall4
in
Pike
Thacker sought the legal
although
indictment.
Wright
Thacker
was
also
filed
a
waiver of multiple representation on June 10, 2002,6 in which he
2
According to Thacker’s testimony at the November 5, 2002,
hearing, Thacker and Baldridge married several weeks before that
hearing.
Also at the hearing, Baldridge stated that her name was
Johndra Baldridge Thacker.
Because this name change occurred while
this case was ongoing, she is referred to variously in the record by
either surname, Baldridge or Thacker.
Because the exact date of her
marriage and name change is unknown, and to avoid confusion with Clyde
Ray Thacker, we will refer to her in this opinion by her name at the
time of indictment, Baldridge.
3
Kentucky Revised Statutes (KRS) 508.010.
4
Curtis Michael Hall is also referred to as Curtis Mike Hall in
Thacker’s brief.
5
Baldridge was also indicted for one count of possession of a
firearm by a convicted felon, KRS 527.040.
6
The waiver of multiple representation indicates that it was
signed by Thacker in open court on June 7, 2002.
Thacker has not
challenged this waiver.
2
acknowledged
that
the
circuit
court
had
informed
him
of
the
possibility of a conflict of interest because of this shared
legal representation and stated that, despite this possibility,
he wanted Wright to continue representing him.
On the morning of September 16, 2002, the day his case
was set for trial, Thacker appeared with counsel and filed a
motion
to
enter
Commonwealth’s
assault
in
guilty
offer
the
first
to
plea.7
The
amend
degree,
the
a
plea
charge
Class
B
was
based
against
felony,
upon
Thacker
to
the
of
criminal
facilitation to commit assault in the first degree,8 a Class D
felony.
a
The Commonwealth’s offer also included its recommending
sentence
of
three
years
imprisonment,
with
90
days
to
be
served in home incarceration and the remainder of the sentence
to be probated for five years.
After reading aloud the charges
of the amended indictment, the circuit court examined Thacker
under oath.9
Thacker stated that he had read the Commonwealth’s
offer and the motion to enter guilty plea and had signed the
latter.
He said that he had discussed the plea agreement with
his attorney and did not need to discuss it with him any further
because he understood it, as well as the charge against him and
7
Administrative Office of the Courts Form AOC-491.
8
KRS 502.020, 508.010.
9
The proceedings on September 16, 2002, were video recorded on
Tape No. 1122-A-01.
3
any available defenses.
He indicated that he had no complaints
about his attorney’s representation of him.
attention
to
the
constitutional
rights
Calling Thacker’s
which
he
would
be
waiving, which are enumerated in ¶ 4 of the motion to enter
guilty plea, Form AOC-491, the circuit court then reviewed some
of these rights orally:
the right to a trial by jury, at which
he would be entitled to counsel and at which the Commonwealth
would have to prove his guilt beyond a reasonable doubt; the
right to confront witnesses called against him; the right to
remain
silent;
and
the
right
to
appeal
to
a
higher
court.
Thacker stated he wanted to waive these constitutional rights
enumerated by the circuit court and any others mentioned in ¶ 4
of the form motion to enter guilty plea.
Regarding the amended
indictment, Thacker stated that he understood the facts of it
and admitted to the conduct alleged in it with the knowledge
that he was pleading guilty to a Class D felony.
Thacker stated
that no one had promised him anything other than the agreement
contained
in
the
Commonwealth’s
written
offer
or
forced,
threatened, or otherwise pressured him to plead guilty.
The
circuit court explained to him that it could reject the plea
agreement and the choices that Thacker would then have.
court
on
September
certificate
guilty plea.
of
16,
counsel
2002,
in
Thacker’s
the
Form
counsel
AOC-491
In open
signed
motion
to
the
enter
Notwithstanding this certification, the circuit
4
court also questioned Thacker’s counsel in open court.
Wright
stated
that
he
had
explained
Thacker’s
Attorney
constitutional
rights to him and that he believed that Thacker understood the
consequences of entering a guilty plea.
He also stated that
Thacker’s entering a guilty plea based on the Commonwealth’s
offer was consistent with his legal advice to Thacker.
In
circuit
court
its
judgment
made
the
entered
following
September
written
18,
2002,
findings
the
concerning
this colloquy:
... the Court examined the Defendant and his
counsel ..., and after such examination, the
Court finds the Defendant understood the
nature of the charges pending against him;
that the Defendant knowingly and voluntarily
waives his right to trial by jury, privilege
against self incrimination, and right of
confrontation; and his right to appeal to
the Court of Appeals by entering a plea of
guilty to the herein charges, and that the
Defendant, in fact, committed the acts
charged, and there is a factual basis for
the Defendant’s plea.
Final sentencing was scheduled for October 18, 2002.
Before that date, Thacker obtained new legal representation.
On
October 8, 2002, Thacker’s present attorney, W. Sidney Trivette,
filed
an
entry
withdraw
his
assistance
guilty.
of
of
appearance
guilty
plea
counsel
and
and
on
filed
the
because
Thacker’s
grounds
Thacker
is
of
motion
to
ineffective
not,
in
fact,
The court scheduled an evidentiary hearing concerning
5
Thacker’s
motion
to
withdraw
his
guilty
plea
on
November
5,
2002.
The only evidence presented at this hearing was the
testimony
hearing
of
Thacker
dealt
with
and
their
Baldridge.10
accounts
of
The
the
majority
shooting
of
of
the
Hall.
According to Thacker and Baldridge, without provocation, Hall
threatened harm to Thacker, first with a large, taped stick and
then with an open hawk-billed knife.
Baldridge then looked for
a weapon to protect Thacker, who was unarmed, and discovered a
.22 rifle.
She pointed the rifle at Hall and told him to drop
his knife.
When he refused, she shot and wounded him.
then
ran
away.
Baldridge
and
Thacker
both
testified
Hall
that
Thacker never told Baldridge to get the gun or to shoot Hall
and, in fact, Thacker seemed surprised when she shot Hall.
Thacker
also
testified
on
the
circumstances
under
which he agreed to the plea agreement and why he thought the
circuit court should grant his motion to withdraw his guilty
plea.11
Thacker asserted that the court should permit him to
10
The November 5, 2002, evidentiary hearing was video recorded on
Tape No. 1130-A-01.
11
Initially Thacker’s counsel only offered the previously-described
testimony by Thacker and Baldridge on the events leading up to the
shooting of Hall.
The Commonwealth then pointed out in its closing
that Thacker had presented no evidence on the central issue, the
voluntariness of his guilty plea. The circuit court then granted the
request of Thacker’s counsel to reopen the hearing.
Upon reopening,
Thacker presented testimony concerning the circumstances surrounding
his guilty plea.
6
withdraw his guilty plea because he did not really understand
the
plea
agreement.
Thacker
explained
that
prior
to
his
decision to enter a guilty plea he had been nervous and had not
slept because he was worried and “didn’t want to go to trial.”
He concluded, “... then I just got to thinking about it and I
had
second
thoughts
about
it,”
apparently
decision to enter a guilty plea.
referring
to
his
When asked why he did not
raise his concerns or questions during the colloquy and instead
agreed that he was knowingly and voluntarily pleading guilty,
Thacker said, “I’s [sic] just nervous and tired and been worried
to death about it.”
to trial.”
He later added, “I was just afraid of going
Thacker asserted that there was no factual basis
supporting his guilty plea and reiterated his desire to withdraw
his guilty plea.
On November 22, 2002, the circuit court entered an
order
denying
Thacker’s
motion
Based
on
evidence
presented
the
to
withdraw
at
the
his
guilty
November
5,
plea.
2002,
hearing, the discovery provided to Thacker by the Commonwealth,
and the record, the circuit court found that Thacker failed to
establish either that he suffered from ineffective assistance of
counsel or that there was no factual basis to support his guilty
plea, the two grounds for withdrawal raised in Thacker’s motion.
The
court
findings
noted
when
that
Thacker
it
had
previously
entered
7
his
made
guilty
the
plea:
following
Thacker
understood the nature of the amended charge; he knowingly and
voluntarily waived his right to trial by jury, right of appeal,
privilege
against
confrontation;
and
self
he
incrimination,
acknowledged
that
and
there
right
was
a
to
factual
basis for his plea because he committed the acts as charged in
the amended complaint.
as follows:
The circuit court summed up its decision
“This is a case where the Defendant simply wants to
change his plea.
A change in desire is not sufficient for a
change in plea.”
Final sentencing was conducted on January 24,
2003.12
In the final judgment and order of probation, filed
January
29,
2003,
the
circuit
court
sentenced
Thacker
in
accordance with the plea agreement.
When
Rule 8.10
of
the
a
criminal
Kentucky
Rules
defendant
of
pleads
Criminal
guilty,
Procedure
(RCr)
requires the trial court receiving the guilty plea to determine
on the record whether the defendant is knowingly, freely, and
voluntarily
pleading
guilty.13
Whether
a
guilty
plea
is
voluntarily given is to be determined from the totality of the
circumstances surrounding it.14
position
to
determine
the
The trial court is in the best
totality
of
the
circumstances
12
The final sentencing was video recorded on Tape No. 1140-A-01.
13
Bronk v. Commonwealth, Ky., 58 S.W.3d 482, 486 (2001).
14
Rodriguez v. Commonwealth, Ky., 87 S.W.3d 8, 10 (2002).
8
surrounding
a
guilty
plea.15
Once
a
criminal
defendant
has
pleaded guilty, he may move the trial court to withdraw the
guilty
plea,
pursuant
to
RCr
8.10.
If
the
plea
voluntary, the motion to withdraw it must be granted.16
was
not
However,
if it was voluntary, the trial court may, within its discretion,
either grant or deny the motion.17
When a trial court denies a
criminal defendant’s motion to withdraw his guilty plea, this
Court will not reverse the denial unless the trial court has
abused its discretion.18
when
its
actions
circumstances.19
were
A trial court has abused its discretion
arbitrary
and
capricious
under
the
A court acts arbitrarily and capriciously when
its actions are not supported by substantial evidence.20
To support a defendant’s assertion that he was unable
to intelligently weigh his legal alternatives in deciding to
plead guilty because of ineffective assistance of counsel, he
must demonstrate the following:
(1)
that counsel made errors so serious
that counsel’s performance fell outside
15
Bronk, 58 S.W.3d at 487.
16
Rodriguez, 87 S.W.3d at 10.
17
Id.
18
Bronk, 58 S.W.3d at 487.
19
Kuprion v. Fitzgerald, Ky., 888 S.W.2d 679, 684 (1994).
20
National Collegiate Athletic Ass’n v. Lasege, Ky., 53 S.W.3d 77,
85 (2001).
9
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 pleaded guilty, but would
instead have insisted on going to
trial.21
We
first
address
Thacker’s
claim
that
he
was
prejudiced by his counsel’s joint representation of both Thacker
and his codefendant Baldridge.
Thacker did not raise the issue
of joint representation in his motion to withdraw his guilty
plea before the circuit court.
of
joint
representation
His failure to raise the issue
before
the
trial
court
bars
any
appellate review of this issue as it is not properly preserved.22
Even if this issue were preserved, Thacker failed to show that
he was prejudiced by this joint representation.
presumption
of
representation.23
interest.24
prejudice
because
of
joint
There is no
or
multiple
A defendant must show an actual conflict of
Thacker makes no such showing.25
21
Bronk, 58 S.W.3d at 486-87.
22
Kennedy v. Commonwealth, Ky., 544 S.W.2d 219, 222 (1976).
23
Kirkland v. Commonwealth, Ky., 53 S.W.3d 71, 75 (2001),
overruling Peyton v. Commonwealth, Ky., 931 S.W.2d 451 (1996) and
Trulock v. Commonwealth, Ky.App., 620 S.W.2d 329 (1981).
24
Id.
25
To the contrary, the record tends to refute any actual conflict
of interest between Baldridge and Thacker. They both testified at the
10
Thacker asserts that the circuit court’s denial of his
motion to withdraw his guilty plea was an abuse of discretion
because his guilty plea was not made freely, voluntarily, and
knowingly.
Specifically, he asserts that it was the product of
ineffective
assistance
of
counsel
because
his
counsel
had
neither adequately prepared for trial nor adequately consulted
with him.
In its order denying Thacker’s motion to withdraw his
guilty plea, the circuit court found that “[t]he Defendant did
not present any evidence” that his legal representation by his
previous attorney was ineffective or inadequate.
We find no
error in the circuit court’s assessment of the evidence on this
issue.
that
he
While Thacker stated in the November 5, 2002, hearing
did
not
fully
understand
his
guilty
plea,
he
never
identifies what aspect of it he allegedly did not understand.
Moreover, he makes no reference to any actions or any omissions
on the part of his attorney, much less how he was allegedly
prejudiced by these actions or omissions.
The record itself
tends to refute any claims of ineffective assistance of counsel.
Attorney
Wright,
the
defense
counsel
in
question,
filed
evidentiary hearing that Baldridge shot Hall in defense of Thacker and
that Thacker did not hand Baldridge the rifle, did not instruct her to
shoot Hall, and did not even know she was going to shoot Hall until
after the fact.
Thus, this is not a case in which the parties have
antagonistic defenses. Also, the fact that any conflict of interests
prejudiced Thacker is refuted by the fact that he received a very
favorable plea offer from the Commonwealth while, at least as of
September 16, 2002, Baldridge remained charged with assault in the
first degree. See Footnote 27, infra.
11
appropriate motions in preparation for trial, including a motion
for
a
bill
discovery.
of
particulars
and
a
motion
for
production
of
The plea agreement itself also demonstrates defense
counsel’s effectiveness. Kentucky courts have often recognized
that the fact that a defendant receives a lighter sentence than
the maximum sentence which could have been imposed at trial is
evidence tending to show that defense counsel’s representation
was effective.26
As part of its plea agreement, the Commonwealth
agreed to amend the charge against Thacker from assault in the
first degree, a Class B felony punishable by up to twenty years’
imprisonment,
degree,
a
to
Class
imprisonment.
complicity
D
felony
Although
to
commit
punishable
Thacker
assault
by
up
nominally
in
to
the
five
agreed
first
years’
to
a
recommendation of three years’ imprisonment, the offer further
specified a recommendation that he only serve 90 days on home
incarceration
alternative
and
five
sentencing
years
on
plan.
probation,
Thacker’s
pursuant
sentence
to
an
obtained
through the plea agreement was far lighter than the possible
twenty years’ imprisonment that he initially faced.
26
This plea
See, e.g., Phon v. Commonwealth, Ky.App., 51 S.W.3d 456 (2001) (plea
agreement resulted in life imprisonment rather than death sentence),
and Caples v. Commonwealth, Ky., 481 S.W.2d 675, 676-77 (1972) (plea
agreement resulted in 15 year sentence rather than range of possible
penalties including death, life without parole, life, or up to
53 years’ imprisonment).
12
agreement was highly advantageous for Thacker, suggesting that
his counsel was neither ineffective nor inadequate.27
Thacker
asserts
as
a
third
basis
of
error
in
the
circuit court’s denial of his motion to withdraw his guilty plea
that he is, in fact, not guilty of the crime to which he entered
a guilty plea.
Therefore, he asserts that there was no factual
basis to support a guilty judgment.
On this point, the circuit
court stated, “[i]f this case had proceeded to trial, adequate
evidence existed from the discovery and the potential testimony
of Curtis Michael Hall to convict the Defendant of the original
charge
circuit
of
First-Degree
court’s
finding
Assault.”
of
a
We
find
sufficient
no
basis
error
to
in
the
support
a
guilty judgment for the original charge of assault in the first
degree.
We note that the uniform offense report of Detective
Eddie Crum paraphrases Hall’s version of events, which differs
vastly from the story told by Baldridge and Thacker.
According
to Hall, Thacker and Baldridge came to his home, and Thacker
threatened to burn the house down with Hall’s family inside if
he did not come out to fight.
Hall then went to meet with
Thacker, arming himself with a taped stick.
Upon his arrival,
Thacker pointed a rifle at Hall and threatened to shoot him.
27
The advantageousness of Thacker’s plea agreement is highlighted
by the fact that, based on the Commonwealth’s statements on the record
on September 16, 2002, only the charge in the indictment against
Thacker was amended.
Baldridge remained charged with assault in the
first degree.
13
Then, Thacker handed the rifle to Baldridge and told her to
shoot Hall.
Hall stated that he then dropped the stick and
tried to run away, but Baldridge shot and wounded him in the
leg.
As for the amended charge of complicity to commit assault
in the first degree, the circuit court stated as follows:
... when he appeared before the Court to
plead guilty on September 16, 2002, the
Court specifically found that the Defendant
understood the nature of the amended charge;
voluntarily and knowingly waived his right
to trial by jury, right of appeal, privilege
against self-incrimination, and right to
confrontation; and acknowledged that there
was a factual basis for his plea because he
committed the acts charged, as amended.
Although Thacker asserts that there is no evidence to support
his guilty plea, as the circuit court noted, he admitted that he
committed the acts as charged in the amended indictment in his
colloquy.
admission
Because,
freely,
as
previously
voluntarily,
and
determined,
he
knowingly,
made
this
this
admission
provides a sufficient factual basis for a guilty plea.
Once it
is
freely,
determined
voluntarily,
that
and
a
guilty
knowingly,
the
plea
plea
everything charged in the indictment.28
was
is
rendered
an
admission
of
We also note that the
evidence in the record, especially Hall’s anticipated testimony,
provides sufficient factual support for a guilty judgment to the
amended charge of facilitation to commit assault in the first
28
Taylor v. Commonwealth, Ky.App., 724 S.W.2d 223, 225 (1986).
14
degree.
For these reasons, we cannot say that the circuit court
abused its discretion in finding a sufficient factual basis to
support Thacker’s guilty plea.
Finally, Thacker asserts that the circuit court abused
its discretion in denying his motion to withdraw his guilty plea
because
he
relies
had
upon
a
the
meritorious
version
of
defense.
events
as
Presumably,
described
by
Thacker
him
and
Baldridge in which Baldridge, acting in defense of an unarmed
Thacker, shot Hall.
In this version of events, Thacker did not
know that Baldridge was going to get the rifle, did not hand it
to her, did not direct her to shoot Hall, and did not know that
she
was
going
to
shoot
him
until
she
had
already
done
so.
However, as noted above, this version of events is contradicted
by Hall’s statement to police.
Because of this discrepancy in
the evidence, we cannot say that it was an abuse of discretion
for the circuit court to deny Thacker’s motion to withdraw his
plea because of his allegedly meritorious defense, especially
given the trial court’s superior position to judge the weight
and credibility of this evidence.
suggest
that
meritorious
the
defense
existence
implies
of
Also, if Thacker means to
what
that
his
he
believes
defense
to
counsel
be
a
was
ineffective or deficient for recommending that he enter a guilty
plea, this claim is without merit.
Advising a client to plead
guilty is not, in and of itself, evidence of any degree of
15
ineffective
assistance
counsel.29
of
In
these
circumstances,
because of the anticipated damaging testimony by the victim,
Hall,
and
because
of
the
very
favorable
terms
of
the
Commonwealth’s plea offer, we cannot say that it was deficient
performance on the part of Thacker’s counsel to advise him to
plead guilty, notwithstanding Thacker’s belief in the viability
of his claim of innocence.
Because
determination
voluntarily,
we
that
and
find
no
Thacker’s
knowingly,
error
guilty
and
in
the
plea
because
we
circuit
was
made
find
no
court’s
freely,
abuse
of
discretion in the court’s denial of Thacker’s motion to withdraw
his guilty plea, we affirm the judgment of the Pike Circuit
Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
W. Sidney Trivette
Pikeville, Kentucky
Albert B. Chandler III
ATTORNEY GENERAL
John R. Tarter
ASSISTANT ATTORNEY GENERAL
Frankfort, Kentucky
29
Beecham v. Commonwealth, Ky., 657 S.W.2d 234, 236-37 (1983).
16
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