Not to be Published

MEMORANDUM OPINION OF THE COURT

On January 15, 2009, Appellant, Jymie Sirone Salahuddin, pled guilty in Fayette Circuit Court to multiple offenses contained in two indictments. In the first, Appellant was indicted for trafficking in a controlled substance in the first degree (second offense) and for being a persistent felony offender in the first degree. In the second, Appellant was indicted for trafficking in a controlled substance in the first degree (second offense), escape in the second degree, possession of drug paraphernalia (second offense), possession of a handgun by a convicted felon, giving an officer a false name, and for being a persistent felony offender in the first degree.

At the subsequent sentencing hearing, Appellant asked the court to allow him to withdraw the guilty plea because he felt he had been coerced by his counsel. At that point, his private counsel, Kate Dunn, was permitted to withdraw and a public defender was appointed. Appellant clarified that he only wished to withdraw the plea in the second case. The trial court ordered a hearing on the matter.

At the hearing, the Commonwealth introduced copies of the "Waiver of Further Proceedings" in each indictment and played an audio recording of the plea colloquy. Appellant testified on his own behalf. The Commonwealth then called Ms. Dunn in rebuttal.

During the plea colloquy, the trial court made the requisite inquiry into Appellant's state of mind. Appellant indicated that he understood the rights he was waiving, that he was satisfied with Ms. Dunn's representation, and that he was not threatened or coerced to accept the plea agreement. At one point, when asked if he needed more time to review the waiver documents, the trial court recessed the hearing and allowed Appellant and Ms. Dunn to privately confer. The hearing resumed and Appellant again indicated that he fully understood the plea agreement. Appellant executed the waiver documents in open court. The trial court ultimately found that the plea was voluntary.

Appellant testified that he was coerced and pushed into the plea by Ms. Dunn and that he did not have time to think about what he was doing. He stated that he was incarcerated for four months awaiting trial and that Ms. Dunn did not communicate with him during this period. According to Appellant, two days before his trial date Ms. Dunn informed him of the plea offer from the Commonwealth. The thrust of Appellant's testimony is that he was very reluctant to accept the plea offer and that Ms. Dunn pressured him until he acquiesced. He claimed that Ms. Dunn threatened to withdraw from his case if he did not accept the offer. He also claimed that Ms. Dunn did not fully explain his options and that she lacked sufficient knowledge about the case.

Ms. Dunn acknowledged that Appellant was reluctant about accepting the plea agreement. She stated that she discussed the plea offer on the phone with Appellant for a total period of about five or six hours. She denied telling Appellant she would withdraw as counsel if he did not accept the plea offer. She did recount that it was her strong opinion, which she expressed to Appellant, that the offer was the best that he could hope for and that it would be a mistake to take the case before a jury. She also rejected Appellant's claim that she was unfamiliar with the case, explaining why she chose not to file motions to suppress in his case. Ms. Dunn described Appellant as a difficult client with whom she had a strained relationship.

The trial court denied the motion to withdraw. Pursuant to the plea agreement, Appellant was sentenced to imprisonment for one year on the first indictment and imprisonment for twenty years on the second indictment, to run consecutively. This appeal followed.

RCr 8.10 provides: "At any time before judgment the court may permit the plea of guilty ... to be withdrawn and a plea of not guilty substituted." "A guilty plea is valid only when it is entered intelligently and voluntarily." Bronk v. Commonwealth, 58 S.W.3d 482, 486 (Ky. 2001). If the defendant alleges the plea was involuntary, a hearing must be held. Edmonds v. Commonwealth, 189 S.W.3d 558, 566 (Ky. 2006). In assessing the voluntariness of the plea, the trial court must look to the totality of the circumstances. Id. The trial court's ruling with respect to voluntariness is reviewed for clear error. Id.

If it is concluded that the plea was involuntary, the motion to withdraw must be granted. Williams v. Commonwealth, 229 S.W.3d 49, 51 (Ky. 2007). If the plea was entered voluntarily, the trial court must exercise its discretion in allowing the plea to be withdrawn. Id. The test for an abuse of discretion is whether the trial court's decision was arbitrary, unreasonable, unfair or unsupported by sound legal principles.

There is substantial evidence in the record to support the trial court's conclusion that Appellant entered his guilty plea voluntarily. The plea colloquy conducted by the trial court fulfilled the requirements set forth in Boykin v. Alabama, 395 U.S. 238 (1969). Appellant stated, under oath in open court, that he understood the rights he was waiving and that he was not pressured or coerced to make the plea. Blackledge v. Allison, 431 U.S. 63, 74 (1977) ("Solemn declarations in open court carry a strong presumption of verity."). He repeatedly declined opportunities to express reservations or hesitancy. He expressed satisfaction with counsel's performance. He signed the waiver documents in open court. He answered questions about the specific facts surrounding each charge. The trial court explained parole eligibility, consecutive and concurrent sentences, and the effect of the PFO charge. Appellant indicated that he understood these explanations.

Even looking beyond the plea colloquy to the totality of the circumstances, there is substantial evidence that the guilty plea was not coerced. The plea offer was initially presented to Appellant two days before he entered the guilty plea. See Williams, id. (noting that defendant had one week to consider plea offer where guilty plea was ultimately determined to be valid). In addition to Ms. Dunn, Appellant discussed the offer with his family before entering the plea. We also note that Appellant had previously pled guilty to other crimes and appeared calm and engaged during the plea colloquy. See Centers v. Commonwealth, 799 S.W.2d 51, 54 (Ky.App. 1990) (in assessing the validity of a guilty plea, the defendant's background, experience and demeanor may be considered). As noted by the trial court, Appellant was facing a potential sentence of over sixty years, making his willingness to accept a plea offer entirely reasonable.

It also must be highlighted that Appellant entered guilty pleas to two indictments simultaneously; however, he did not attempt to withdraw his guilty plea in the first case. Because the Commonwealth's offer encompassed both indictments and was considered as a single agreement by Appellant and Ms. Dunn, it is difficult to accept that Appellant was coerced only as to the second indictment. As the trial court remarked, Appellant's position in this regard is inconsistent.

The trial court's determination that Appellant's plea was knowingly and voluntarily made is supported by substantial evidence and, therefore, is not clearly erroneous. The record strongly supports the trial court's finding that

Appellant made a voluntary choice to accept a plea agreement to avoid a trial on charges he could not defend. Having determined the plea was valid, the trial court did not abuse its discretion in denying Appellant's motion to withdraw.

For the foregoing reasons, the judgment of the Fayette Circuit Court is affirmed.

All sitting. All concur.