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WILLIS v. COMMONWEALTH, 2014-CA-000118-MR (2016)

Court: Court of Appeals of Kentucky Number: inkyco20160401204 Visitors: 6
Filed: Apr. 01, 2016
Latest Update: Apr. 01, 2016
Summary: NOT TO BE PUBLISHED OPINION TAYLOR , Judge . Dashawn Lamont Willis brings Appeal No. 2014-CA-000118-MR from a January 13, 2014, Judgment and Sentence on Plea of Guilty and brings Appeal No. 2014-CA-000119-MR from a January 13, 2014, Judgment and Sentence on Plea of Guilty of the Franklin Circuit Court. We affirm both appeals. On October 26, 2011, Willis was indicted (Action No. 11-CR-00226) by the Franklin County Grand Jury upon the offenses of first-degree trafficking in a controlled sub
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NOT TO BE PUBLISHED

OPINION

Dashawn Lamont Willis brings Appeal No. 2014-CA-000118-MR from a January 13, 2014, Judgment and Sentence on Plea of Guilty and brings Appeal No. 2014-CA-000119-MR from a January 13, 2014, Judgment and Sentence on Plea of Guilty of the Franklin Circuit Court. We affirm both appeals.

On October 26, 2011, Willis was indicted (Action No. 11-CR-00226) by the Franklin County Grand Jury upon the offenses of first-degree trafficking in a controlled substance, possession of marijuana, first-degree criminal possession of a forged instrument, possession of drug paraphernalia, and second-degree possession of a controlled substance. On January 11, 2012, Willis was again indicted (Action No. 12-CR-00019) by the Franklin County Grand Jury upon trafficking in a controlled substance, possession of marijuana, and possession of drug paraphernalia.

Willis and the Commonwealth reached plea agreements in both cases. In Action No. 11-CR-00226, Willis agreed to enter a guilty plea to the indicted offenses, and the Commonwealth agreed to recommend a total term of five-years' imprisonment and to take no position on probation at sentencing. In Action No. 12-CR-00019, Willis agreed to enter a guilty plea to the indicted offenses, and the Commonwealth agreed to recommend a total sentence of five-years' imprisonment and to take no position on probation at sentencing.

On November 2, 2012, Willis entered guilty pleas in both actions and final sentencing was set for December 28. Willis was released from custody pending final sentencing. On December 28, Willis failed to appear for sentencing and was eventually arrested on April 12, 2013. At the time of his arrest, Willis was charged with trafficking in a controlled substance in the first degree.

Due to Willis's failure to appear for sentencing and arrest on a new charge of trafficking in a controlled substance, the Commonwealth indicated that it would oppose probation for Willis in Action Nos. 11-CR-00226 and 12-CR-00019 despite the plea agreements. Willis then filed motions to withdraw his guilty pleas in both actions. Willis maintained that the plea agreements required the Commonwealth to make no recommendation on probation, and by opposing probation, the Commonwealth breached the plea agreements. Consequently, Willis believed he was entitled to withdraw his guilty pleas in both actions.

The circuit court ultimately denied Willis's motions to withdraw guilty pleas. In its order, the circuit court concluded:

The only basis [Willis] presents is that the Commonwealth now wishes to oppose probation, where the plea called for the Commonwealth to remain silent. The Court can remedy [Willis's] concern and order the Commonwealth is to remain silent as to probation.

At final sentencing, the Commonwealth offered no recommendation on probation in either action.

By judgments and sentences on plea of guilty entered on January 13, 2014, the circuit court sentenced Willis to five-years' imprisonment in Action No. 11-CR-00226 and to five-years' imprisonment in Action No. 12-CR-00019 in accordance with the plea agreements, the sentences to run consecutively. The circuit court, however, denied Willis probation in both actions. These appeals follow.

Willis raises only one issue in these appeals, contending that the circuit court erroneously denied his motions to withdraw guilty pleas. Specifically, Willis argues that the Commonwealth breached the plea agreements by "reneg[ing] on its agreement[s] to take no position on probation." Willis's Brief at 4. Because the Commonwealth breached the plea agreements, Willis asserts that he was entitled to withdraw both guilty pleas. For the following reasons, we disagree.

Kentucky Rules of Criminal Procedure (RCr) 8.10 is captioned Withdrawal of Plea and provides, in relevant part:

At 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.

It is well-settled that "[a] motion to withdraw a plea of guilty under RCr 8.10 is generally addressed to the sound discretion of the court; however, where it is alleged that the plea was entered involuntarily the defendant is entitled to a hearing on the motion." Williams v. Com., 229 S.W.3d 49, 51 (Ky. 2007).

In the case now on appeal, the circuit court denied Willis's motions to withdraw guilty pleas, but the court ordered the Commonwealth to abide by the terms of the plea agreements by remaining silent upon the issue of probation at sentencing. The record reflects that the Commonwealth complied with the circuit court's order and took no position on probation at final sentencing. It was well within the circuit court's authority to specifically enforce the plea agreements by ordering the Commonwealth to take no position on probation at sentencing. See Muhammad v. Ky. Parole Bd., 468 S.W.3d 331 (Ky. 2015); Wilson v. Com., 839 S.W.2d 17 (Ky. App. 1992). And, as the Commonwealth was ordered to comply with the plea agreements and ultimately did so by taking no stand on probation at sentencing, we can find no legal basis to conclude that the circuit court abused its discretion by denying the motions to withdraw guilty pleas. In sum, we are of the opinion that the circuit court did not abuse its discretion by denying Willis's motions to withdraw guilty pleas.

For the foregoing reasons, the Judgments and Sentences of Plea of Guilty of the Franklin Circuit Court are affirmed.

ALL CONCUR.

Source:  Leagle

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