Steven Zapata v. Commonwealth of Kentucky

RENDERED APRIL 30 202 0 TO BE PUBLISHED fiuprrme Gland Hf fienfnnkg 2018 SC 000666 MR

STEVEN ZAPATA APPELLANT

ON APPEAL FROM JEFFER V SON CIRCUIT COURT HONORABLE MITCH PERRY JUDGE NO 13 CR 002075

COMMONWEALTH OF KENT UCKY APPELLEE

OPINION OF THE COURT BY JUSTICE WRIGHT

AFFIRMING A Jefi'erson County Grand Jur y indicted Steven Zapata for one count of murder for killing his wife, Ton defia. On October 28, 2015, Zap ata entered a guilty plea pursuant to North Carolina :2 Alford 91 S Ct 160 (1970) in which he maintained his innocence while acknowledging the Comm onwealth had sufl'icmnt evidence to convict him On November 5, Zapata ’s cou rt appointed counsel filed a motion to withdr aw his guilty plea. On Novemb er 9, Zapata mailed his own motion to wit hdraw the plea, alleging deficie nc1es 1n representation The trial cou rt denied both mot ions and Zapata appealed In Zapata v Commonwealth, 516 S W 3d 799 (Ky 2017) this Cou rt vacated the Judgment and order denyin g Zapata’s motion to withdr aw the guilty plea and remanded the case for further pro ceedings

On remand, the trial court per mitted Zapata’s newly appomt ed conflict counsel time to consult with Zap ata, review prior counsel’s lit igation file, and determine if Zapata wished to con tinue with his guilty plea or procee d with a new motion to withdraw the ple a Zapata’s new counsel filed a mo ton to withdraw the guilty plea

The trial court conducted an evi dential-y hearing on the new mot ion to withdraw the guilty plea Zap ata and his previous counsel, Angela EHeman, testified at the hearing After additional briefing, the tria l court denied Zapata s motion to withdraw his guilty ple a. The trial court sentenced Zap ata to 24 years’ imprisonment in accord ance with the plea agreement He now appeals to this Court as a matter of right Ky Const § 110(2)(b) Zapata raises two main issues on appeal 1) the trial court erred by not permitting him to withdraw his guilty plea (due to (a) ineffective assistance of counsel, (b) Elleman’s disquahfy ing conflict of interest, and (c) “Za pata’s incorrect belief of his absolute right to withdraw his guilty ple a at any time prior to sentencing”) and 2) eve n assuming the plea was volunt arily entered, the trial court abused its discre tion when it denied his motion to withdraw his guilty plea. After careful review, we affirm the trial court

I BACKGROUND Zapata and his wife, Tondelia, had been married for three mo nths when she was found strangled to dea th in the c0uple’s shared apartm ent In statements to police, Zapata claime d Tondelia attacked him with a kni fe Zapata claimed that, in response to Tondelia’s attack, he punched her multiple

times and had his hands aro und her throat According to Zapata, Tondel ia was alive when he left the apa rtment. Zapata was indicted for her murder Zapata was examined for competency to stand trial by the Kentucky Correctional Psychiatric Center (KCPC) and by his court appoin ted defense counsel’s retained expert Fol lowing a hearing, the trial cou rt determined Zapata was competent After that ruling by the trial cou rt Zapata filed a motion to represent himself as hybrid counsel The trial court conducted a hearing pursuant to Faretta v Califomia 95 S Ct 2525 (1975) 1 and permitted Zapata to act as hybrid counse l Zapata and the Commonwealth reached a negotiated plea agreem ent and appeared in court to enter the plea On October 28, 2015, Ell eman and Zapata negotiated a reduction in the agr eed sentence recommendation for murder from 25 years to 24 years and Zapata entered an Alford plea Paperw ork filed in conjunction with the guilty ple a included a “Motion to Enter Gui lty Plea” form

R 1 me United States Supreme Cou represent himself at trial in Fan rt set out the requirements for an atta, 4-22 U S at 835 “In Order accused to the accused must ‘knowingly and to represent himself, intelligently forgo those relinquis Although a defendant need not hed benefits himself have the skill and experi order competently and mteIligen ence of a lawyer in tly to choose self representation, aware of the dangers and disadv he should be made antages of self representation, so establish that he knows what he is that the record will doing and his choice is made With (internal citations and quotation marks omitted) eyes open ”) Section 1 1 of the Kentucky Con stitution also addresses this iss “[ijn all criminal prosecutions the ue, stating accused has the right to be hea counsel ” Our predecessor Court conclu rd by himself and limited waiver of counsel, spectf ded this means “an accused may ying the extent of services he des make a entitled to counsel whose duty will ires, and he then is be confined to rendering the spe services (within, of course, the nor cified kind of mal scope of counsel services) ” 514 S W2d 692 696 (Ky 197 Wake v Barker, 4)

signed by Zapata with an unSigned “Cer tificate of Counsel ” The trial court conducted a colloquy pursuant to Rag lan 0 Alabama 395 U S 238 (1969) which requires trial Judges to ensure guilty pleas are made intelligently, knowingly, and voluntarily During the Boylcm colloquy the trial court questioned Zapata about the rights list ed in the motion, but did not ask Elleman any questions about the certifica te of counsel The trial court accepted the plea and set the case for sent encing A few days later, Elleman filed a motion to withdraw Zapata’s guilty plea with no reasons specified in support of the motion Zapata filed his own motion to withdraw the guilty plea clai ming (among other things) that he had been deceived by Elleman’s incorrect advi ce that he could withdraw his guilty plea any time before sentencing, “no proble m ” According to Zapata, the deceit rendered his plea involuntary

Despite Elleman’s aclmowledgment of the awkward position created by the allegations made by Zapata in the motion, the trial court did not appoint conflict counsel, noting that Zapata was acti ng as hybrid counsel The trial court heard arguments, took no proof, and denied the motions to withdraw the plea Zapata was sentenced pursuant to the ter ms of the plea agreement In Zapata’s original appeal, this Court found an actual conflict existed between Zapata’s interests and Elleman’s inte rests over the motion to withdraw the guilty plea The case was remanded, and the posture of the case was returned to the point in time when the plea had been accepted, but before the motion to withdraw the plea had been mad e On remand, conflict counsel was

appomted, a new motion to withdraw the plea was filed, and the trial court denied the motion and sentenced Zapata according to the plea agreement

Sixth Amendment, or would otherwise clearly render the invalid plea

Commonwealth v 1’71de 394 S W 3d 867 874 (Ky 2012) On app eal “we review the trial court’s factual findings only for clear error, but its application of legal standards and precedent s de novo ” Id “If the trial judge’s findings of fact in the underlying action are not clearly erroneous, Le , are supported by substant1al evidence, then the appellate court’s role is confine d to determining whether those facts support the trial judge’s legal conclusion ” Com monwealth v Delaney 20 S W 3d 471 473 74 (Ky 2000) Mere doubt as to the correctness of a finding would not justify reversal, and the appellate court does not consider and weigh evidence de novo However, if a finding is without adequate evidential-3' support , the reviewing court may regard it as clearly erroneous ” Commonwealth v Har relson, 14 S W 3d 541, 548—49 (Ky 2000) Zapata’s claims regarding his aba ndonment by counsel repeatedly return to the fact that Elleman had fai led to Sign the Certificate of Cou nsel” located on page 2 of the Motion to Enter Guilty Plea ” The Certificate of Counsel on that form reads

1 To the best of my knowledge and belief the defendant understands the allegations contai ned in the indictment and/or any amendments thereto I have fully discussed with the defendant the charges and any possible defenses to them and I believe that he/ she fully understands the charges and possible defenses I have reviewed with the defendant the attached “Commonwe alth’s Ofl'er on a Plea of Guilty” and the Foregoing “Motio n to Enter a Plea of Guilty,” and I believe he/ she unders tands these documents

2 To the best of my howledge and belief, his [her plea of “GUILTY” is made freely, knowingly , mtelligently and voluntarily I have fully explained the defendant 8 constitutional rights to him /her and I believe that he/ she understands them

3 The plea of “GUILTY” as ofl'ered by the defendant is con31stent with my advice to him /he r, and I recommend to the Court that his/her plea he acc epted The reasons for Elleman’s failure to Sign the form were extenswely explored during the evidential-y hearin g According to Elleman, she did not sign the certificate because she disagr eed with the trial court’s ruling that Zapata was competent to stand tria l following his examination at the Ken tucky Correctional Psychiatric Center (KCPC) Zapata raises no issues in this appeal concerning that competency ruling However, according to Elleman, Zapata ’s competency remained an Issue for her —even after the trial court had ruled otherwise At the plea withdrawal hea ring on rem and, Elleman said, “I didn’t Sign [the certificate] because my person al opinion was that Mr Zapata wasn’t competent ”

Zapata’s conflict counsel asked Ellema n if her failure to Sign the certtficate Was because everything list ed in the certificate was not true including that the plea was voluntarily entered Elleman responded that her concerns over Zapata’s competency ext ended over the entire guilty plea. After reviewing the plea colloquy transcript, Elleman acknowledged the trial court did not ask any questions about the cert ification during the Boykzn hearing on the plea and Elleman did not inform the court of her concerns

Zapata argues that, “[a] signed and dated Certificate of Counsel is a requirement for a defendant entering a guilty plea.” He insists that Ellema n’s failure to Sign the form is indicative of the fact that she had abandoned her client during the plea negotiations and he was unrepresented at that stage of trial He refers to no rule of procedur e, rule of evidence, or case authority that requires counsel’s signature on this for m before a guilty plea may be accepted Under the facts and Circumstance s of this case, we decline to hold eith er that a signed certificate was a requirement for the entry of Zapata’s guilty plea or that it indicates E11eman abandoned her client.

Zapata goes so far as to allege that “[t]he failure of a trial judge to elimt this information [contained on the form ] from counsel via either the form or questioning renders the plea involuntary ” (emphasis added) Again, Zapata directs us to no legal authority mak ing such a signature or inquiry by the trial court mandatory for a finding of voluntariness We decline to adopt such a position today

The trial court determined the guilty ple a was voluntary based on the totality of Circumstances present in this cas e In its order, the trial court stated

Trial courts are in a unique position when it observation of criminal defendants Ove com es to the r the course of a case, from indictment to finaljudgment or acqu ittal, a Court observes how defendants interact with their attorney s, howr they participate in their own defense, and their bearing in listening and responding to the Court In the case of Steven Zapata, this Court had the occasion to observe him on no fewer than twenty occasions During the two and a half year pendency of Zapata’s case, this Court observed on multiple occasions that Zap ata was as savvy, smart, and sophisticated as any Defendant who has appeared

before this Court Nothing that was raised at the evidentiary hearing concerning Zapata’s mot ion to Mthdraw his guilty plea changed those observations Zapata, in his capacity as defend ant and hybrid counsel, participated meaningftu in his own defense He communicated on numerous occas10ns with thi s Court, demonstrating an understanding of the processes and procedures which took place, and in fact meaningfully partiapau ngm them At each conference between Zapata’s election to repres ent himself in a hybrid counsel Situation and his final guilty plea, Zapata reaifinned his desire to continue representing himselfin CQI' IJUI‘ICHOI‘I with Elleman Zapata ofl‘ered spirited arguments in his own defense, both to this Court and apparently in negotiations with the Commonwealth’s Attorney In fact, on the day of the scheduled plea hearing and with the assistance of lineman, he successfully negonated a flirther One (1) year reduction in total sen tence Included in the more than twenty cou rt appearances noted in the trial cou rt order, a review of the record discloses that two appearances were competenc y hearings, one was a Faretta hearing, and one a Boykm plea colloquy The trial court observed Zapata when he testifi ed at the heating on the motion to withdraw his plea There were signifi cant interactions bet ween Zapata, his attorneys, the Commonwealth, and the trial court in a variety of hearings Zapata’s involvement in these hearin gs contrasts with more limited events suc h as an arraignment, where “yes or no” ans wers or “state your full name” are the more typical interacnons between a tria l court and a defendant The opportunities this trial court had to observe Zapata and draw conclus1ons fiom those observations , support the tn'al court’s findings A signed certificate of counsel would have been evidence of the voluntariness of the plea (as it would have provided Ell eman’s opinion that Zapata voluntari ly entered his plea), but the absence of the signed certificate is not proof that the

plea was involuntary A failure to sign or testify is an absence of proof rather than proof of anything

As this case demonstrates, the better prac tice is for trial courts to review both motions to enter guilty pleas and cert ificates of counsel with a defendant’s counsel during the plea colloquy Any issu es or concerns that counsel has can be resolved, and a clear record established In this case, for whatever reason, the trial court did not ask counsel question s about the certificate of counsel While that did not, in and of itself, rend er this plea invalid, the better practice

for all concemed in future cases is for the trial court to take the time to ask counsel questions about the plea and the docu ments filed in conjunction therewith

We also consider the actual words Zapata spok e in the Boykzn plea colloquy “Solemn declarations in open court carr y a stro ng presumption of verity Blaclcledge v Allzson, 97 S Ct 1621 1629 (197 7) However we do not View those declarations in isolation “In other words, the validity of a guilty plea is determined not by reference to some magic incantation rec1ted at the time it is taken but from the totality of the circ umstances surrounding it ” Kotas v Commonwealth, 565 S W 2d 445 447 (Ky 1978) (Citing Brady :2 United States 90 S Ct 1463 (1970)) We have directed trial courts In cases where the defendant disputes his or her volu proper exerase of this discretmn requires trial ntai iness, a courts to cons1der the totality of the Circumstances surrounding the guilty plea and juxtapose the presumption of voluntariness inhe rent in aproper plea colloquy with a Strickland v Washmgton[ 104 S Ct 2052 (1984),] inquiry into the performance of counsel

Bronk v Commonwealth, 58 S W 3d 482 486 (Ky 2001) [footnotes omitted) In applying Strickland to plea agreements, we have quoted the Court of Appeals statement that.

“A showing that counsel’s assistance was ineffectiv e in enabling a defendant to intelligently weigh his legal alternatives in deciding to plead guilty has two components (I) 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 aflected the outcome of the plea process that, but for the errors of counsel, there is a reasonab le probabihty that the defendant would not have pleaded guilty, but would have insisted on gomg to trial "‘

Bronk, 58 S W 3d at 486 (quoting Sparks v Commonwe alth, 721 S W 2d 726 727 28 (Ky App 1986))

Zapata argues the trial court limited his ability to inqui re about ineffective ass:stance of counsel issues during the hearing on the new motion The record reveals the trial court (on one occasion) did tell Zapat a’s counsel that the hearing was not being held to rule on a general ineff ective assistance of counsel motion Instead, the trial court directed counsel to focus on those issues connected to the guilty plea and the motion to with draw the guilty plea Spemfically, the trial judge stated, “[t]here is no 1201‘ 1 1 42 motion on the table ” In response, Zapata’s counsel argued vigorously that ineffectve assistance was an issue involved in the motion to withdraw the guilty plea We note the trial court did not prevent counsel during the rema inder of the hearing from asking questions about ineffechve assistance of counsel as it related to the guilty plea or the motion to withdraw the plea. After aski ng counsel to take a deep breath and calm down, the trial court directed him to proc eed The trial

Judge concluded by saying “[a]sk whatever question you are curious about to Ms E11eman ” (emphasis added ) In telli ng Zapata’s counsel to ask “whatever question” he wanted, the trial court lifted any limitation regarding questioning as to inefiective assistance of counsel.

Zapata asserts this single (and later revoked) limitation by the trial court afi‘ected his ability to present facts concerni ng ineffective assistance of counsel through testimony As noted above, after a thorough search, we found no other trial court directives in the record that limi ted his questioning nor does Zapata cute to any others It appears the trial court inihally intended to avoid a hearing on issues generally related to ineffectiv e assistance of counsel and sought to keep the focus on the guilty plea and the motion to withdraw the guilty plea As noted, the trial court withdrew that restrict ion and allowed Zapata’s counsel to question E11eman Followin g the exchange between Zapata’s counsel and the trial Judge, it would have been unreasonable for Zapata’s counsel to believe he could not ask E11e man questions to support an inefi'ective assistance of counsel claim relating to the plea withdrawal In response to questions at the hearing, E11e man testified that Zapata expressed regrets about entering the plea whe n he called E11eman asking her to file a mohon to set aside his plea Regrets after entering a plea are not uncommon, especially when the plea bargain includes the recommendation for a substantial sentence (as was the case herein) However, regrets alone do not require that a trial court allow a defendant to with draw his guilty plea.

As noted above, on the day he entered his guilty plea, Zapata asked the Commonwealth to reduce the sentencing recommenda tion by one year Zapata also insisted on an Alford plea and the Commonwealth agreed Elleman was successful in obtaining bot h the reduction in the senten cing recommendation and the Alford plea Zapata req uested While the trial court did not use the words “ineffective ass istance of counsel,” it did efl‘ectively add ress Zapata’s claim The tri al court summarized what Zapata was asking the trial court to do and clearly rejected that request Essentially, Zapata’s argume nt is that his court appointed attorney Angela EHeman mis led him by advising him tha could withdraw his guilty ple t he a at any time prior to final sen And that further, she con tencing tinued this deceit by lying during evidentiary hearings in un de r oat h this case For this Court to with Zapata’s arguments, it agr ee is required to believe not onl Elleman misled Zapata regard y that ing his ability to withdraw his but that she also lied while und plea, er oath concerning that mislea advise The Court simply doe ding s not believe those assertion EHeman, and rejects Zapata’s s about arguments in their entirety A review of the record reveal s a substantial basis supportin g the trial court’s factual findings and, the refore, those findings are not clearly erroneous Having accepted those factua l findings, we note that the rec ord supports the finding that E11eman contin ued to represent Zapata throug hout the plea negotiation process Zapata had engaged the Commonwe alth in plea negotiations in his dual role as defendant and hybrid counse l After this Court’s remand for a plea withdrawal hearing, Elleman testified that once the trial cou rt found Zapata competent, she had a choice to assist Zapata in his plea or ass ist him at trial Elleman sai d that Zapata indicated through his action s that he desired a plea agreem ent She testified

the proposed plea was acceptable in light of the evide nce she thought would be presented at trial Elleman said, “I did not feel I had a viable defense that would result in a not guilty or a lesser charge, so that’ s why I recommended the guilty plea.” Far from abandoning her client, E11eman assisted Zapata in making a reasonable choice under the Circumstances Elleman carried out Zapata’s wishes to the extent possible and assisted him in reduc ing the agreed upon offer by one year on the day the plea was entered Elleman also obtained the Alford plea Zapata sought

Furthermore, there is no reasonable possibility that but for the claimed inefi‘ective assistance, Zapata would have chosen to go to trial and face higher penalties of 20 to 50 years or life imprisonment A revie w of relevant facts shows why this is so The cause of death in this case was stra ngulation—a slow and violent method of inflictmg death Zapata then fled from the scene and crossed state lines to avoid arrest In Zapata’s statements to the police, he admitted everyflfing except that his wife was dead when he left the apartment However, Zapata’s version of events makes no logical sense If it were true that Zapata’s wife were alive when he left their apartment, then his wife would have most likely survived bemg choked If someone is strangled and the pressure ceases prior to death, the victim will likely start breathing again unless the airway has been crushed This would simply not have been a valid defense at trial At sentencing, the jury would have also been privy to Zapat a’s exten sive criminal history (comprising numerous out of state felony conviction s, including one for aggravated rape)

Under the facts of this case, we hold that there was no ineffective assistance of counsel during plea nego tiations, much less ineffective assistan ce so substantial that it impacted the plea process Elleman did not “malkle errors so serious that counsel’s perfor mance fell outside the wide range of professxonally competent ass1stance ” Bronk, 58 S W 3d at 486 (internal quotations and citations omitted) But even assuming Elleman was ineffect ive in her representation of Zapata, her alle ged “deficient performance [would not have] so seriously aflected the outcome of the plea process that, but for the errors of counsel, there Is a reasonable prob ability that the defendant would not have pleaded guilty, but would have msis ted on going to trial ” Id We afirm the trial court’s factual findings related to Zapata’s allegation of Ineffective assistance, as they were not clearly erroneous For the foregoing reasons, the trial court did not err in its refu sal to allow Zapata to withdraw his plea on grounds that Elleman’s assistance was inefi‘ectwe 2 Conflict ofInterest In Zapata’s first appeal to this Court, we held “[t]here IS no doubt an actual conflict wasted in this case Zapata’s counsel was placed in the

untenable position of defending her own inte rests which were adverse to her d1ent[’]s Zapata 516 S W 3d at 803 The conflict we held crusted in that case only extended to Zapata’s plea withdraw al hearing, in which he had made allegations of deficiencies in Elleman’s represen tauon In the present appeal, ‘ Zapata asserts that the conflict of interest cas ted even before the plea was entered, thus rendering his plea involuntary

Zapata argues on appeal that “Ms EHeman’s total disagreeme nt with Zapata’s election to proceed to trial as a hybrid defense team was for her a conflict of interest that undermines the voluntariness of Zapata’s guilty plea ” Zapata further states that even zealous advocates may be unawa re of a debilitating conflict of mterest.

During the Faretta hearing at which the trial court decided Zapata could

act as hybrid counsel, Elleman stated that she was concerned with the possibility that Zapata may ask improper and unethical questions— or want her to ask such questions Elleman testified that Zapata “had very stron g beliefs that witnesses should be asked questions that were not admissible or

relevant ” For example, E11eman was concerned that Zapata’s delusions about her worlnng for the FBI and tampering with evidence could give rise to improper questions Elleman was concerned that Zapata would ask queshons

he thought he had a basis to ask, but in reality, no hams casted She feared

such potential improper questions could undermine Zapata’s position with the

jury E11eman described her concern about Zapata asking or expecting her to

ask witnesses improper questions as “much of the conflict going forward ” Zapata now says that her words concerning a “conflict” were indicative of a

conflict of interest that denied Zapata adequate representation We disag ree Given the context of her statement, E11eman was clearly referring to the

“conflict” between her ethical responsibilities as an attorney and unethical

questions Zapata, acting as hybrid counsel, may expec t her to ask This is not the type of disqualifying conflict our precedent recognizes

While we acknowledge that it was a case about a confli ct of interest arising from an attorney's former representation of a client , we find guidance in the standard regarding disqualifying conflicts of interest set out in Marcum u Scorsone 457 S W 3d 710 (Ky 2015) There we overruled prior precedent requiring an attorney be disqualified for the mere appearance of mpropriety Instead, we set out a new standard, to wit. “[bIefore a lawye r is disqualified , the complaining party should be required to show an actual confli ct, not just a vague and possibly deceiving appearance of impropriety ” In the case at bar, Zapata can Show no such actual conflict

Elleman tesufied that “When you co counsel with a client, there are

inherent difficulties with that relationship ” Among these difiiculues , Elleman pointed to differing views about the strength of the case and overal l strategies that were In Zapata’s best interest We note that Elleman spoke with Zapata on numerous occasions after the trial court granted his mouon to act as hybrid counsel

Elleman voiced no concerns at the hearing that Zapata’s delusions

interfered with their discussions about which witnesses the defen se would call, which witnesses Elleman would cross examine or question on direct

examination, or Zapata’s dealsion about whether to testify In summary,

Elleman tesufied that although Zapata kept putting off making firm and final decisions about trial roles for each of them, she did not indicate prob lems so

severe they endangered the attomey client relat ionship or created an actual conflict disqualifying her from representing her clien t Elleman said she thought the issue of Zapata’s competency would have to be revisrced “somewhere down the road ”

“An ‘actual conflict,’ for Sixth Amendment purposes, is a conflict of interest that adversely infects counsel’s performance " Mickens v Taylor, 535 U S 162 172 n5 (2002) In that same vein this Court has stated

where the alleged conflict is raised at some later paint duri ng post conviction proceedings, the standard set forth in Cuyl er v Sullivan, 446 U S 335 ( 1980) controls. That more stringent standard requires the defendant to demonstrate both that a conflict existed and that it prejudiced him Le , that it adversely affected his counsel’s performance—in some cognizable way Id Samuels v Commonwealth 512 S W 3d 709 712 13 (Ky 2017] A review of the record does not support a claim that an actua l conflict existed, and much less that counsel’s performance was adver sely affected by any purported conflict

Disagreements between an attorney and her client over what questions to ask witnesses, trial strategy, and strengths of a chent’s case are a familiar part of the tnal landscape Those disagreements occur regar dless of whether a client has delusions or whether the client is acting as hybri d counsel Nothing in the record supports that commumcanon was broken down between Eneman and Zapata evincmg some actual conflict affecbng EHeman’s representation of her client As noted above, after the trial court allowed Zapa ta to proc eed as hybrid counsel, visits, phone calls, and letters continue d between Ellernan and Zapata

E11eman testified that because Zapata kept putting 011' final deusions about how trial responsibilities were goin g to be divided, she was preparing as if she were going to handle the entire trial Elleman’s demsion to prepare for an entire trial was a prudent course of acti on absent a written agreement dividing trial responsibilities The trial court requ ired that a document listing the separate trial responSIbilities for Zapata and E11eman be filed in the record, but when Zapata entered the guilty plea, the trial court had yet to set a final deadline for that document Without a final agreement reduced to writ ing, it was entirely possible that Zapata might deci de at the last minute he would not handle anything at trial, or perhaps that he would handle only a minimal amount It was equally possible Zapata mig ht dec1 de to handle most of the trial, or even all of it. E11eman was obligate d to be prepared for whatev er eventuality might occur Her trial preparat ion does not show any evid ence of a disquaan actual conflict

A conflict of mterest occurs when an atto rney’s interests are at odds with her client’s interests In Zapata’s previous appeal, this Court held that the trial court should have appointed conflict counsel at the hearing on Zapata’s monon to withdraw his guilty plea as Zapata alle ged E11eman had provided incorrect legal advice on which he based his deasion to plead guilty That is the kind of actual conflict of interest that would disquali fy an attorney from representing her client However, Elleman’s concems over possible improp er questioning of witnesses by Zapata, her disagreement with Zapata acting as hybrid counsel, and her disagreement with the trial court finding Zapata competent did not use

to the necessary level of an actual conflict so as to require Elleman’s disqualification from representing Zapata.

Lawyers routinely disagree with the decisions of their clients and the decismns of hial courts These disagreements are everyday realities of practicmg law Despite these disagreements, lawyers are charged with protectlng their client’s interests Were we to hold that the simple disagreement here created a conflict, lawyers would have to withdraw or seek conflict counsel every time they disageed with a client’s dems ion That is not a reasonable or practical approach to the administration ofJus tice—and not the sort of disqualifying actual conflict envisioned by our prec edent. EHeman assisted Zapata in entenng the plea bargain Zapa ta, through E11eman, improved the agreement to his benefit on the day he entered the plea. Zapata (again through E11eman) convinced the Commonwe alth to agree he could proceed with an Alford plea There was no actual confl ict of interest that exhibited an adverse efi'ect on counsel’s performance and no prejudice to Zapata. The trial court did not err in denying Zapata’s motion to withdraw his plea on grounds of E11eman’s alleged conflict of interest

3 Mum’s incorrect belief that he could withdraw his plea at any time

Zapata next argues that the trial court and E11eman both failed to correct his mistaken belief that he could withdraw his guilty plea at any time before sentencing He asserts that he could not have entered the plea voluntaril y, knowingly, and intelligently while harboring this incorrect belie f that he could withdraw the plea The problem with Zapata’s assertion is that it has no basis

In Kentucky jurisprudence He would have us craft an entirely subjective rule out of whole cloth that would look solely at an individual defen dant’s assertions concerning what he believed when entering a plea. If we were to do so, every defendant would have grounds to Withdraw his plea agreement simply by making an assertion that he did not properly understand some detail of the procedures employed once the plea was entered

In Kentucky RCr 8 10 states in pertinent part that [a]t any time befor e judgment the court may permit the plea of guilty to be withdrawn and a plea of not guilty substtuted However, the only language from RCr 8 10

contained 1n Zapata’s motion to enter a guilty plea concerns Zapata’s options in the event the trial court were to reject the plea agreement The only cucumstance the paperwork identified in which a plea could be withd rawn was if the trial court rejected the plea agreement Here, the trial court accep ted the plea agreement and that language is inapplicable Given the contents of Zapata’s signed plea agreement form taken as a whole, his alleged belief that he could withdraw his plea at any time before sentencing “no probl em” was not reasonable

We do not expect a trial court to disclose and discuss every possible

consequence of a plea during a Bowen plea colloquy That would be both impossible and impractical Rather, “[t]he defendant need only be aware of the (111801: consequences of the plea the trial court 18 under no consttutional

obligation to inform the defendant of all the possible collateral conse quences of

the plea Commonwealth v Thompson, 548 S W 3d 881 889 (Ky 2018) (internal citations omitted)

Zapata stated during the Boykm colloquy that among other things he understood there would not be a trial, he would not be cross examining

witnesses, he gave up the right to remain silent, and there would be no appeal Zapata acknowledged he had read, reviewed, and signed the motion to enter a guilty plea which contained a list of his rights It has long been the rule in this Commonwealth that acknowledging the written guilty plea form containing a

defendant’s rights is suflic1ent “No cases are cited requiring a judge to read from the bench a defendant’s rights to a defendant who has already waived those rights by written waiver, has acknowledged his signature thereto, and has further acknowledged that he understood those rights ” Commonwealth v Crawford 789 S W 2d 779 780 (Ky 1990) Although not lengthy (and as

noted, would have been improved by questions directed at Eneman conce rning the plea and the Certificate of Counsel), the colloquy in this case was clear and

unequivocal, and provided an opportunity for Zapata to ask questions

Zapata testified on remand at the plea withdrawal hearing that Elleman told him he could withdraw his plea any time before sentencing, “no problem ” Elleman teshfied she reviewed the motion to enter a guilty plea with Zapata and she did not tell Zapata that he could withdraw his guilty plea any time The two testimonies are at odds with one other

Elleman teshfied that if Zapata could withdraw the plea at any time as he claimed, then there would be no need to enter a plea The trial court had

ample opportunity to observe both Zapata and Elleman at the plea colloquy and the remand hearing The trial court clearly chose to believe Elleman and to disbelieve Zapata “The trial court had an oppo rtunity to see the witnesse s and observe their demeanor on the stand, and recog nition must be given to its superior position to Judge their credibility and the weight to be given their testimony Kotas 565 S W 2d at 447

Pointing to discrepancies in Elleman’s testimony, Zapata argues the trial court erred in believing her testimony rather than his However, no matter how vigorous the disagreement, the trial court is tasked with 9.0ng testimony and making demsions regarding credibility The trial cour t had extenswe experience with both Zapata and Elleman during the trial and was free to utilize those prior interactions in determining credibilit y Moreover, even though he was given the opportunity to ask questions of the court, Zapata did not ask about the possible with drawal of his plea before sentencing IfZapata had any doubts before, he shou ld have known from the trial judge’s comments at the Boykm hearing that the plea, if accepted, ended Zapata’s case The trial Judge made statements such as, that he was “holding plea sheets indicating a resolution of the case,” and aske d Zapata if he “understood that a guilty plea is in lieu trial meaning, takes the place of a trial, and ifI accept this here in a few moments, the case is over and you cannot appeal this guilty plea Zapata indicated that he understood that the case would be over if the trial court accepted his guilt y plea The trial court

and Elleman could not timely cor rect a misunderstanding of Kentuc ky law and procedure by Zapata if they did not know about it Elleman’s testimony indicates she did not know Zapata was under the belief that he could withdraw his ple a at any time Zapata and Elleman, acting together as hybrid counsel, failed to bring Zapata’s alleged belief to the attention of the trial court If Zapata were to prevail on this cla im, defendants could claim after a plea that they did not know or understand a rule of procedure, a statute, or a rule of evi dence and because they claim they did not know or understand the plea mus t be set as1de It is reasonable to exp ect that if an issue is unclear to a def endant, he or she will either ask cou nsel or take advantage of the opportunity the court provides during the Boykm colloquy to ask questions and get the answer he or she needs Zapata’s answers to the trial court’s questions in the Boykm colloquy in the contex t of the entire case belie his claim that he was under this mistaken belief regarding the ability to withdraw his plea. He ack nowledged to the trial court tha t he understood that his case would be “ove r” if the court accepted the plea and E11eman testified that she had not told him that he could withdraw his plea at any tune before sentencing

In this case, the trial court found Zap ata to be savvy and smart The trial judge was in the best position to ass ess credibility The trial court’s findings of fact were not clearly errone ous and it did not err in denying Zapata’s motion based on his alleged mis taken belief about the court’s discretion in allowing him to withdraw his plea

B The trial court did not abuse its discretion in denying Zapata motion to withdraw his plea ’s

Zapata asserts the trial court erred when it failed to exercise its discretion under RCr 8 10 and set aside his guilty plea In making thi s argument, Zapata restates his oth er arguments and then claims tha t even if the trial court properly found the ple a was voluntary, the trial court sho uld have exermsed its discretion and all owed the plea to be Withdrawn A plea may be withdrawn if the tria l court, In its dweretion, permits the withdrawal “[T]he rule makes clear tha t the trial cou rt may permit the defendant to withdraw even a valid plea . Under our rule, this latter decision is one addressed solely to the trial cour t’s sound discretion ” Pndham, 394 S W 3d at 885 “The test for abuse of discretion is whe ther the trial Judge’s desiswn was arbitrary, unreasonable , unfair, or unsupported by sound lega l principles Goodyear Tire &Rubber Co D Thomps on, 11 S W 3d 575 581 (2000) (Citing Commonwealth 2) English, 993 S W 2d 941 945 (1999)) Zapata seeks to set aside his guilty ple a based on either incorrect advice from his attorney or his own misund erstanding that he could withdraw his guilty plea at any tune He masts eith er of those reasons const1tut e a “fair and just reason ” The “fair and just reason ” language is found In the American Bar Assouation Criminal Justice Standa rds R 12 2 1(a) (1999) and in Federa l Criminal Rules of Procedure 1 1(d)(2) (B) This is an attempt to create a new test, not found in the Commonwealth 's Rules of Civil or Criminal Proced ure or jurisprudence In the Commonwealth , our Rules leave the withdrawal of a voluntary plea to the discretion of the trial court based upon the totality of the

Circumstances in a case We trust our trial courts in makin g those determinauons and exercising their discretion

In Pridham, 394 S W 3d at 885 the Appellant asked this Court for such relief There, we stated

Cox would have us read into the rule a right of withdrawal any time a defendant establishes “a fair and Just reason” for it, provided that withdrawal would not unduly prejudice the Commonwealth, and he contends that his reason for wanting to withdraw his plea meets that standard Cf Fed R Grim Proc 1 1(d)(2)(B) ( A defendant may withdraw a plea of guilty after the court accepts the plea, but before it imposes sentence if the defendant can Show a fair and just reason for requesting the withdrawal ”)

Cox did not present this claim to the trial court, and so it was not properly preserved for our review We decline to address it, therefore, beyond observing that the denial of Cox’s motion to withdraw his plea was not a palpable error so as to entitle Cox to relief under RCr 10 26

Id

More recently, the Court of Appeals took up this issue in Blanton v Commonwealth, 516 S W 3d 352 356 57 (Ky App 2017) That court addressed the issue, stating

Blanton has requested that this Court apply the test for withdrawing a guilty plea under Federal Rules of Criminal Procedure 11(d)(2) (13) as set forth in United States v Hockenberry 730 F 3d 645 (6th Cir 2013) That federal rule permits a defendant to Withdraw his guilty plea if he “can Show a fair and Just reason for requesting the withdrawal ” However, the Commonwealth points out that “[t]he precise terms of Rule 1 1 are not constltuuonally applicable to the state courts ” Roddy 1) Black, 516 F 2d 1380, 1383 (6th Cir 1975) Id

Assuming this issue was properly preserved below, we agree with the above cited language in the Court ofAppeals’ Blanton decrsion and dec line to change the standard for withdrawi ng guilty pleas in Kentucky Our Rul es of Criminal Procedure set out a differen t rule entrusting plea withdrawal to the discretion of the trial court A who le body of case law has develo ped around this Rule and we will not upset that bal ance Zapata further claims the trial court erred because, under the totality of the Circumstances, even without find ing the guilty plea involuntary, the trial court abused its discretion Zapata argues remand is mandated and that upon remand this Court must order the trial court to allow Zapata to withdr aw his guilty plea We disagree

“The essence of a discretionary power is that the person or persons exercising it may choose which of seve ral courses will be followed ” Franklin Guy Ky U Malone 957 S W2d 195 201 (Ky 1997) ovenuled on other grounds by Commonwealth v Horns 59 S W 3d 896 (Ky 2001) As we noted above, the exercise of discrehon to all ow for withdrawing a guilty plea is hel d by the trial court After review of the rec ord in this case, we hol d that the trial court did not abuse that discrehon in declining to allow Zapata to withdraw his guilty plea.

III CONCLUSION After careful review of the issues, we affirm the trial court’s denial of Zapata’s motion to withdraw his guilty plea .

All sitting All concur

COUNSEL FOR APPELLANT

Joseph V Aprile II Lynch Cox Gilman as Goodman P SC

COUNSEL FOR APPELLEE

Daniel Jay Cameron Attorney General of Kentucky

James Daryl Havey Assistant Attorney General

Kenneth Wayne Riggs Assistant Attorney General

Footnotes

[11] ANALYSIS A The trial court did not err in denying Zapata’s motion to withdraw his guilty plea due to ineffective assistan ce of counsel, counsel’s alleged conflict of interest, or Zapata’s inco rrect belief that he could Withdraw his guilty plea at any point prio r to sentencing Zapata first argues that the trial court should have granted his motion to withdraw his guilty plea “in View of his former public defender’s ineffectiveness in the plea negotiations and her disqualifyin g conflict of interest as well as Zapata’s incorrect belief of his absolute right to withdraw his guilty plea at any time prior to sentencing ” We will address each of these issues in turn 1 Ineffective assistance of counsel Zapata claims his counsel was inefi'ective duri ng plea negotiations and that the trial court erred in denying his motion to withdraw his plea on these grounds Zapata asserts that EHeman both esse ntially aban doned his representation during plea negotiations and told him that he could Withdraw the plea agreement at any tune before sent encmg He argues this essential abandonment of representation and incorrect advi ce amounted to ineffective assistance of counsel requiring the trial court to gran t his motion to withdraw his plea At the outset, we note [ulnder either [RCr 8 10 or RCr 1 1 42] to be entit led to relief on that ground the movant must allege with particul arity specific facts which, if true, would render the plea involuntary under the Fourteenth Amendment’s Due Process Clause, would render the plea so tainted by counsel’s ineffective assistan ce as to violate the