NOT TO BE PUBLISHED
OPINION
MOORE, JUDGE.
Tony A. Hughes appeals the Christian Circuit Court's judgment convicting him of first-degree Possession of a Controlled Substance, Cocaine, first offense, cocaine; operating a motor vehicle under the influence of alcohol or controlled substances, first offense; and operating a motor vehicle on a suspended license, first offense. After a careful review of the record, we affirm because there was no palpable error in the circuit court's failure to sua sponte continue the case or in the court's discussion with the parties concerning the entry of Hughes's guilty plea; any error in the circuit court's failure to hold a Chapter 31 hearing at the time of the plea colloquy was harmless; the circuit court did not err in sentencing Hughes to imprisonment rather than diversion; and Hughes's claim concerning HB1 463 is moot.
I. FACTUAL AND PROCEDURAL BACKGROUND
Hughes, a Wisconsin resident, was indicted on charges of first-degree possession of a controlled substance, first offense, cocaine; operating a motor vehicle under the influence of alcohol or controlled substances, first offense; and operating a motor vehicle on a suspended license, first offense.
In April 2008, Hughes moved to enter a guilty plea pursuant to North Carolina v. Alford,2 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The written motion to enter an Alford plea that is in the record is a form motion that is typically used when a defendant moves to enter a guilty plea. The form, which Hughes signed, states that Hughes wanted to enter a guilty plea "in reliance on the attached `Commonwealth's Offer on a Plea of Guilty.'" However, there is no "Commonwealth's Offer on a Plea of Guilty" in the written record before us.
In July 2008, the circuit court issued a bench warrant for Hughes's arrest because he failed to appear for sentencing. He was arrested based upon that warrant two and one-half years later, in January 2011, while he was being held in the Milwaukee County Jail in Milwaukee, Wisconsin. When he eventually appeared in the circuit court in Kentucky for sentencing in the present case, the circuit court sentenced him to a total of five years of imprisonment for his three convictions.
Because there was an issue on the face of the record regarding whether Hughes wished to proceed or not with his appeal and to clarify the stakes in this case, we set forth the circumstances surrounding this issue. Hughes filed his notice of appeal. Several weeks later, he moved the circuit court for shock probation. Hughes's attorney subsequently filed a notice to withdraw/dismiss this appeal in the circuit court, based upon counsel's belief that there were no appealable legal issues and due to the fact that the circuit court had granted the motion for shock probation.3 According to the parties' filings in this Court, the circuit court denied Hughes's notice to withdraw/dismiss this appeal on the basis that the circuit court no longer retained jurisdiction over the case.
Hughes's appointed appellate counsel moved this Court for an extension of time to file Hughes's opening brief for the following reasons: Hughes had been granted shock probation and he had returned to Wisconsin; the motion to dismiss the appeal had been filed in the circuit court and denied by that court due to lack of jurisdiction; appellate counsel had been unable to communicate with Hughes to determine if he desired to continue with the appeal or dismiss it; and appellate counsel had sent a letter with affidavits for Hughes to sign if he still desired to dismiss the appeal, but those affidavits had not been returned to appellate counsel. Counsel stated in the motion for an extension of time that once counsel received the affidavit from Hughes, counsel would move to dismiss the appeal, unless Hughes decided to pursue the appeal, in which case counsel would file a brief on his behalf. This Court granted the motion for an extension of time to file Hughes's opening brief. Subsequently, the parties proceeded to file their appellate briefs, without any further mention from Hughes's counsel regarding whether Hughes desired to pursue the appeal or not.
We entered an order abating the appeal. In that order, we noted that Hughes had moved to dismiss the appeal in the circuit court, and we reasoned that
[o]n the basis of this clear indication that appellant no longer wished to pursue his appeal, and in light of the fact that appellant obtained and remains on shock probation, the Court has serious reservations as to whether further prosecution of this appeal is appellant's desire or is in his best interest.
Therefore, we ordered appellate counsel to file with the Clerk of this Court Hughes's affidavit stating his desire to pursue this appeal, and we informed appellate counsel that failure to file the affidavit within thirty days of the date of the order would result in an order dismissing the appeal without consideration of the merits.
Appellate counsel moved to reconsider the order requiring Hughes to file an affidavit stating his desire to pursue the appeal. Appellate counsel argued, inter alia, that she had spoken with Hughes and he informed her that he had never asked his prior counsel to move to dismiss the appeal. Hughes wanted to pursue the appeal because "he had worked his whole career as a mortgage broker, but was unable to continue that work because of this felony conviction." The Commonwealth opposed the motion to reconsider, arguing, inter alia, that
at the very least an affidavit stating Appellant understands the potential consequences that await him should his sentence be reversed belongs in the appellate record. An affidavit would also prevent any ineffective assistance of appellate counsel claim should the case be reversed and an unwilling and unwitting defendant be brought back before the circuit court.
We denied the motion to reconsider our prior order. Hughes thereafter filed his affidavit in this Court stating that he wanted to pursue this appeal and that he never instructed his prior counsel to move to dismiss the appeal.
The appeal is now ripe for our review. In this appeal, Hughes contends as follows: (a) the circuit court erred in denying substitute counsel a continuance after counsel announced he was not ready to proceed to trial; (b) the circuit court erred to Hughes's substantial prejudice when the court improperly injected itself into plea negotiations; (c) the circuit court erred in not holding a hearing to determine whether Hughes qualified for indigent representation; (d) the circuit court abused its discretion in revoking diversion; and (e) if Hughes's conviction is reversed in this appeal, the circuit court must proceed on remand under HB 463.
II. ANALYSIS
A. CONTINUANCE
Hughes first alleges that the circuit court erred in denying substitute trial counsel a continuance after counsel announced he was not ready to proceed to trial. However, Hughes acknowledges that he did not move for a continuance in the circuit court, so it is not preserved for appeal. See Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976). Thus, we may only review it for palpable error pursuant to RCr4 10.26, which provides:
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.
In his opening appellate brief, Hughes contends that when the parties met in chambers in April 2008, his
[s]ubstitute counsel informed the court that he could not announce ready for trial and that he had not had an opportunity to consult with [Hughes] since being assigned the case. . . . Hughes personally told the court that he had not been able to travel from his home in Wisconsin down to Kentucky to meet with a brand-new attorney earlier in the week because of work obligations.. . . That utterance caused substitute counsel to raise the question of whether [Hughes] qualified for representation and requested a hearing pursuant to Chapter 31. . . .
In response, the trial court proceeded to "encourage" the Commonwealth to agree to felony diversion as part of a guilty plea. . . . Hughes protested again that he still had never had occasion to review the evidence against him, including the DVD that apparently recorded a drug transaction, and substitute counsel stated that he had the DVD and would review it with [Hughes]. . . . A little over an hour later, [Hughes] was entering a guilty plea with the promise of diversion if he remained in good standing for a year.
On appeal, the Commonwealth argues that Hughes's claim is not only unpreserved, but it is waived because a valid guilty plea waives all defenses except a claim that the indictment charges no offense. We acknowledge that the procedural posture of this appeal is unusual because Hughes entered a guilty plea and, in his motion to enter the guilty plea, he waived his right to appeal. Regardless of whether this claim is properly before us on direct appeal, it lacks merit. Hughes has cited no authority showing that a trial court is required to sua sponte grant a continuance in circumstances such as these. Furthermore, the "decision whether or not to grant a continuance lies within the sound discretion of the trial court and will not be overturned absent an abuse of that discretion." Shegog v. Commonwealth, 142 S.W.3d 101, 109 (Ky. 2004). In the present case, the circuit court did not abuse its discretion. Although Hughes claimed that because of his work obligations he was unable to speak with substitute counsel until the morning trial was scheduled to begin, substitute counsel sent a letter to him on April 9, 2008, asking Hughes to contact him and explaining that he would be substituting for Hughes's prior counsel. Hughes did not telephone him, so substitute counsel telephoned Hughes on the Monday before the Thursday that trial was scheduled to begin. Hughes could have discussed his case at length with substitute counsel over the telephone, if Hughes was unable to travel to Kentucky earlier that week prior to trial. Therefore, we find no palpable error in the circuit court's failure to grant a continuance in this case.
B. COURT IMPROPERLY INJECTED ITSELF INTO PLEA NEGOTIATIONS
Hughes next contends that the circuit court erred to his substantial prejudice when the court improperly injected itself into plea negotiations. Again, Hughes acknowledges that this claim is unpreserved for our review. Therefore, we review it for palpable error. We have reviewed Hughes's argument and the record in this case; we conclude that palpable error did not occur.
Hughes entered a guilty plea which, when valid, results in the waiver of the right to file a direct appeal. In order to be valid, the guilty plea must be entered knowingly, voluntarily, and intelligently.
The test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. There must be an affirmative showing in the record that the plea was intelligently and voluntarily made. However, the validity of a guilty plea is determined not by reference to some magic incantation recited at the time it is taken but from the totality of the circumstances surrounding it.
Sparks v. Commonwealth, 721 S.W.2d 726, 727 (Ky. App. 1986) (internal quotation marks and citations omitted).
In the present case, Hughes reviewed the evidence with his attorney before he decided to enter his Alford plea. He signed a motion to enter a guilty plea, which stated that he acknowledged he was waiving various constitutional rights, including the right to file a direct appeal. The court spent a considerable amount of time explaining diversion to him, and told him that if he did not appear for sentencing, or if his record was not "clean," then the court would sentence him to imprisonment, rather than diversion. Additionally, the court asked Hughes during the plea colloquy whether he was pressured or coerced into entering a guilty plea, and Hughes responded that he was not. Regardless of his allegations about the trial court, the record shows Hughes's plea was entered knowingly, voluntarily and intelligently; hence, his plea was valid. Consequently, there was no error.
C. HEARING REGARDING INDIGENT STATUS
Next, Hughes asserts that the circuit court erred in not holding a hearing to determine whether Hughes qualified for indigent representation. He alleges that his appointed counsel questioned whether he qualified for indigent representation after Hughes informed the circuit court that he was not able to travel to Kentucky earlier in the week before trial due to work obligations, and that the court should have held a hearing on the matter pursuant to KRS5 31.120. This statute requires a trial court to determine whether a defendant qualifies for indigent representation at each step of the proceedings.
The circuit court asked Hughes on the day he entered his guilty plea about his income, and Hughes informed the court that in March, i.e., the month prior to trial, he had received unemployment benefits. The court stated that the fact Hughes had received unemployment so recently answered the question of whether he was entitled to indigent representation.
Additionally, Hughes does not allege that he was prejudiced by the fact that counsel was provided to represent him during the proceedings. Therefore, even if we were to assume for the sake of argument that it was error for the court not to have held a Chapter 31 hearing at the time of the plea colloquy, the error was harmless because Hughes has not shown he was prejudiced by the failure to hold the hearing. See RCr 9.24.
D. DIVERSION
Hughes next alleges that the circuit court abused its discretion in revoking his pretrial diversion. However, Hughes was never sentenced to diversion, so it could not have been "revoked." To the extent that Hughes contends the circuit court orally agreed to sentence him to diversion, there is no written order in the record before us supporting this contention. We remind the circuit court and the parties that the court speaks only through its written record. See Holland v. Holland, 290 S.W.3d 671, 675 (Ky. App. 2009).
Furthermore, during the plea colloquy, the court conditioned its intention to sentence Hughes to diversion on his criminal record being "clean" and on Hughes appearing on July 2, 2008 for sentencing. The court specifically informed Hughes during the plea colloquy that if he failed to appear for sentencing on that date, he would be incarcerated and indicted for bond jumping. The Commonwealth also told Hughes during the plea colloquy that if he failed to appear for sentencing, the Commonwealth would have the option of requesting the maximum sentence on all charges and for the sentences to be ordered to run consecutively. Hughes acknowledged these statements by the court and the Commonwealth.
Not only did Hughes fail to appear for sentencing on July 2, 2008, he was arrested in Wisconsin two and one-half years later, and he was returned to Kentucky to be sentenced at that time. When he finally appeared for sentencing, the court noted that Hughes had committed a DUI while he was out on bond in the present case.
Therefore, the circuit court did not "revoke" Hughes's diversion because Hughes was never sentenced to diversion. Furthermore, there was no diversion agreement between the parties because RCr 8.04(1) requires diversion agreements to be in writing. Additionally, Hughes was not entitled to be sentenced to diversion because he failed to appear for his scheduled sentencing, he absconded for two and one-half years following his plea colloquy, and he committed a DUI while out on bond. Thus, the circuit court did not err when it sentenced Hughes to imprisonment, rather than diversion.
E. HB 463
Finally, Hughes argues that if we reverse his conviction in this appeal, the circuit court must proceed on remand under HB 463. Hughes asserts that when he was sentenced in February 2011, "HB 463 was still four months from being effective." However if we were to remand this case, the law would be applicable. Hughes alleges this would reduce his possession of a controlled substance charge from a felony to a misdemeanor. Because we are not reversing his conviction, nor are we remanding to the circuit court, this claim is moot.
Moreover, because the judgment against Hughes was entered before HB 463 became effective, he is not entitled to be resentenced by retroactively applying the recent statutory amendments discussed in HB 463. See Rogers v. Commonwealth, 366 S.W.3d 446, 455-56 (Ky. 2012).
Accordingly, the judgment of the Christian Circuit Court is affirmed.
ALL CONCUR.
