Chazrico Gibson v. Commonwealth of Kentucky ( 2021 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.”
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED: AUGUST 26, 2021
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2020-SC-0250-MR
CHAZRICO GIBSON APPELLANT
ON APPEAL FROM KENTON CIRCUIT COURT
V. HONORABLE GREGORY M. BARTLETT, JUDGE
NO. 18-CR-00981
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Chazrico Gibson appeals as a matter of right1 from the Kenton Circuit
Court’s decision denying his motion to withdraw his guilty plea. Gibson pled
guilty to second-degree manslaughter and two counts of second-degree assault
and was sentenced to twenty-years’ imprisonment. On appeal, Gibson alleges
three errors: first, that his plea was involuntary; second, that conducting his
sentencing hearing remotely violated his constitutional rights; and finally, that
the trial court erred by denying his motion for a continuance. Finding Gibson’s
allegations without merit, we affirm the Kenton Circuit Court.
1 Ky. Const. § 110(2)(b).
I. Factual and Procedural History
The record reflects that during July 2018 Gibson and a friend visited a
Covington, Kentucky bar. While there Gibson and his companion were
embroiled in a bar fight with at least three other men. At some point during
the altercation Gibson drew his knife and stabbed the three men repeatedly,
killing one. Consequently, a grand jury indicted Gibson for murder. The
following May, Gibson agreed to plead guilty on the condition that his charges
be amended to second-degree manslaughter and two counts of second-degree
assault, for which he would be sentenced to twenty-years’ imprisonment.
However, in October 2019 Gibson filed a motion to withdraw his guilty
plea. Gibson alleged that the plea was involuntary because he received
incomplete evidence, did not have time to reflect on his options, and had to
make a decision regarding the plea deal without sufficiently reviewing available
discovery. Specifically, Gibson alleged that the recordings of the incident he
received came without audio, which Gibson stated would have altered his
initial decision to accept the plea offered by the Commonwealth. Gibson
simultaneously argued that his acceptance of the plea deal was conditioned on
the Commonwealth offering an Alford2 plea.
Following a hearing in December 2019, the trial court denied Gibson’s
motion to withdraw his plea as involuntary. Gibson was set to be sentenced on
May 20, 2020. Unfortunately, March 2020 brought the first wave of the
2 North Carolina v. Alford, 400 U.S. 25 (1970).
2
COVID-19 pandemic to the Commonwealth, slowing and even closing essential
government functions in Kentucky. On March 6, Governor Beshear declared a
State of Emergency in the Commonwealth and shortly thereafter this Court
entered Administrative Order 2020-22 which required, in part, that all
participants be allowed to participate in court proceedings remotely. Pursuant
to these guidelines, Gibson’s sentencing hearing was held remotely.
During Gibson’s sentencing hearing, he moved for a continuance on two
grounds: (1) to review the presentence investigation report further, and (2) to
secure the testimony of his sister and mother, who could not attend the
amended hearing date.3 The court denied both requests. Gibson testified at
the sentencing hearing, as did his cousin. Ultimately, Gibson was sentenced in
accordance with the plea agreement.
II. Analysis
A. Gibson voluntarily entered the plea agreement.
RCr4 8.08 requires all guilty pleas to be voluntarily and intelligently
entered. Consequently, trial courts must determine that the defendant had an
“understanding of the nature of the charge[]” and still, voluntarily, desired to
enter a plea with the Commonwealth. Id., Bronk v. Commonwealth, 58 S.W.3d
482, 486 (Ky. 2001). Trial courts have discretionary authority to accept or
3 The record does not disclose why the court moved Gibson’s sentencing
hearing from May 20 to May 4.
4 Kentucky Rules of Criminal Procedure.
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deny plea agreements. RCr 8.10.5 However, when the defendant alleges
involuntariness, he or she is entitled to a hearing on the motion. Edmonds v.
Commonwealth, 189 S.W.3d 558, 566 (Ky. 2006). If the plea was involuntary
the court must grant the motion to withdraw; however, if the plea was
voluntary the court retains discretion to either grant or deny the withdrawal
motion. Williams v. Commonwealth, 229 S.W.3d 49, 51 (Ky. 2007) (citation
omitted).
At the withdrawal hearing, the trial court is to consider the totality of the
circumstances and conduct a Strickland v. Washington inquiry into the
performance of the defendant’s counsel. Bronk, 58 S.W.3d at 486. The
Strickland inquiry asks: (1) whether defense counsel made errors serious
enough to fall outside the scope of acceptable assistance; and (2) whether
defense counsel’s deficiencies affected the case so seriously that there was a
reasonable chance the defendant would not have pled guilty. Id. at 486-87.
Since the inquiry is inherently fact-sensitive, we review the trial court’s finding
of voluntariness for clear error, meaning that the decision was supported by
5 The relevant text of RCr 8.10 reads:
At any time before judgment the court may permit the plea of guilty
. . . to be withdrawn and a plea of not guilty substituted.
If the court rejects the plea agreement, the court shall, on the
record, inform the parties of this fact, advise the defendant personally in
open court or, on a showing of good cause, in camera, that the court is not
bound by the plea agreement, afford the defendant the opportunity to then
withdraw the plea, and advise the defendant that if the defendant persists
in that guilty plea the disposition of the case may be less favorable to the
defendant than that contemplated by the plea agreement.
4
substantial evidence. Thomas v. Commonwealth, 605 S.W.3d 545, 554 (Ky.
2020) abrogated on other grounds by Abbott, Inc. v. Guirguis, __ S.W.3d __,
2021 WL 728860 (Ky. 2021). Thereafter, we review the trial court’s decision to
grant or deny the motion to withdraw for abuse of discretion. 605 S.W.3d at
554 (citation omitted).
Gibson, a high-school graduate with three years of collegiate education,
asserts that his plea agreement must be rendered involuntary because he did
not possess all the necessary discovery to make an informed decision, due to
the ineffective assistance of his appointed counsel. We disagree. Instead, we
find that the trial court did not err when it found Gibson’s plea voluntary and
subsequently denied his motion to withdraw.
After carefully reviewing the record, we are convinced that the trial
court’s findings were supported by substantial evidence. Gibson was originally
indicted on one count of murder and two counts of assault in the second
degree for which he faced 50-years’ incarceration at 85% parole eligibility,
should he have been convicted. Instead, pursuant to the plea agreement, the
Commonwealth amended his charges to manslaughter in the second degree
and two counts of assault in the second degree for which Gibson agreed to
serve 20-years’ incarceration at 20% parole eligibility.6 Moreover, Gibson’s plea
6 Gibson also complains that his counsel, Mr. Polito, lied to him about the
availability of an Alford plea. Our review of the record, however, shows that Mr. Polito
brought the request for an Alford plea to the Commonwealth once, which rejected the
offer. The record simply contains no evidence that Mr. Polito made any mention of the
availability of an Alford plea beyond that entreaty to either Gibson or the
Commonwealth. Moreover, Mr. Polito testified to his experience as a public defender
and stated that he did not make a habit of promising his clients any certain outcomes.
5
colloquy further supports the trial court’s finding. During the colloquy Gibson
was given every opportunity to voice his dissatisfaction but chose not to. The
following exchanges between Judge Bartlett and Gibson are particularly
relevant to our conclusion:
Judge Bartlett: I take it by your advanced education you can read
and understand everything in these documents. Is that true?
Gibson: Yes sir.
...
Judge Bartlett: Your attorney is Mr. Polito. Are you satisfied that
he’s been effective in representing you?
Gibson: Yes sir.
Judge Bartlett: No complaints about his service?
Gibson: No.
Judge Bartlett: I don’t ask that to in any way imply that you
should have complaints. But when someone is facing a 20-year
sentence I want to know if they’re happy with their lawyer now
instead of 2 or 3 years down the road. So that’s why I ask you that
question. Now is the time to express any dissatisfaction with your
legal representation, understood? And you have no problems?
Gibson: No.
These exchanges demonstrate Gibson understood the rights he was waiving,
the charges he faced, the consequences of his plea agreement, and expressed
no dissatisfaction with his representation. Gibson had every opportunity to
inform the judge of the alleged audio issues with his discovery, as well as his
later complaints regarding the effectiveness of his counsel prior to agreeing to
the plea. Consequently, the trial court did not err or abuse its discretion by
denying his motion to withdraw his guilty plea.
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B. Gibson was properly sentenced by video conferencing.
Gibson asserts his constitutional right to be physically present at his
sentencing hearing was violated when the trial court conducted the hearing
remotely. We disagree. RCr 8.28 mandates that defendants be present “at
every critical stage of trial . . . and at the imposition of the sentence.” These
Confrontation Clause errors are subject to harmless error review. RCr 9.24;
Heard v. Commonwealth, 217 S.W.3d 240, 244 (Ky. 2007) (quoting Barth v.
Commonwealth, 80 S.W.3d 390, 395 (Ky. 2001) (citing Chapman v. California,
386 U.S. 18, 24 (1967)). However, “before a federal constitutional error can be
held harmless, the [reviewing] court must be able to declare a belief that it was
harmless beyond a reasonable doubt.” Heard, 217 S.W.3d at 244 (citations
omitted). We test for harmless error by inquiring as to “any substantial
possibility that the outcome of the case would have been different without the
presence of that error.” Thacker v. Commonwealth, 194 S.W.3d 287, 291 (Ky.
2006) (citing Commonwealth v. McIntosh, 646 S.W.2d 43, 45 (Ky. 1983)).
Gibson alleges that he was harmed by the video conferenced hearing
because “he was not personally present to observe demeanor, confront
witnesses face-to-face, lodge immediate observations and objections in a
confidential manner with counsel, or have the court ascertain his own actions
and demeanor.” However, as Maryland v. Craig makes clear, the Confrontation
Clause does not provide “an absolute right to a face-to-face meeting[.]” 497
U.S. 836, 836-37 (1990). In Craig, the Supreme Court held that the right to
confront witnesses did not always have to be satisfied by a physical and face-
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to-face confrontation when “denial of such confrontation is necessary to
further an important public policy and only where the testimony’s reliability is
otherwise assured.” Id. at 837 (citation omitted). This Court stated in
Commonwealth v. Willis that “the right to confront [] is not absolute and may in
appropriate cases be compromised to accommodate other legitimate interest in
the criminal trial process.” 716 S.W.2d 224, 228 (Ky. 1986) (citing Chambers v.
Mississippi, 410 U.S. 284, 295 (1973)).7
To properly contextualize the circumstances surrounding Gibson’s
sentencing hearing we note that at the time of Gibson’s sentencing on May 4,
2020, the Commonwealth of Kentucky was responding to the first wave of the
COVID-19 pandemic. In response to the threat posed by the airborne virus,
this Court issued Administrative Order 2020-22 on April 14, 2020. The order
specified that “[a]ll participants to a proceeding, including parties and
attorneys, must be allowed to participate remotely. Judges must use available
telephonic and video technology to conduct all hearings, unless the parties are
unable are unable to participate remotely.” Ky. Admin. Order 2020-22(1). As
the Order noted, we were responding to Governor’s declaration of a State of
Emergency in the Commonwealth, and the order’s measures were introduced
to “protect the health and safety of court employees, elected officials, and the
general public[.]” Id.7 Gibson’s argument is largely founded on United States v. Garcia-Robles,
however, that case is not instructive here because that case involved the failure of the
court to hold any resentencing hearing for the defendant. 640 F.3d 159, 161 (6th Cir.
2011). Gibson was afforded a full sentencing hearing.
8
Still, despite these limitations, Gibson’s hearing allowed all participants
to see and hear one another. Gibson’s family was able to testify on his behalf
and the trial judge was able to hear from the deceased victim’s family.
Moreover, Gibson was not at a greater disadvantage than anyone else involved
in the hearing. With all parties participating remotely, every member had the
same difficulties observing each other’s demeanor and gaining the kind of
information only available with face-to-face confrontations. Finally, the
pandemic created a strong, albeit temporary, public interest in ensuring the
safety of all parties involved by requiring remote participation. Consequently,
the trial did not err by holding his sentencing hearing remotely.
C. Gibson’s motion for continuance was properly denied.
Granting a continuance lies within the sound discretion of the trial
court. Williams v. Commonwealth, 644 S.W.2d 335, 336-37 (Ky. 1982).
Accordingly, we do not disturb the order unless the court has abused that
discretion. Id. at 337. When the defendant seeks a continuance to ensure the
availability of a witness, RCr 9.04 requires an affidavit showing “what facts the
affiant believes the witness will prove, and not merely the effect of such facts in
evidence[.]” More plainly, if the witness’s testimony is cumulative and will not
affect the “final outcome” of the trial, the court’s refusal to grant a continuance
is not an abuse of discretion. Estep v. Commonwealth, 663 S.W.2d 213, 216
(Ky. 1983). Generally, the trial court considers a myriad of factors, chief
among which asks whether denying the continuance will lead to identifiable
prejudice. Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991),
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overruled on other grounds by Lawson v. Commonwealth, 53 S.W.3d 534 (Ky.
2001). After reviewing the record, we find no abuse of discretion.8
Gibson’s foundational argument asserts that he was prejudiced at the
sentencing hearing because his mother and sister could not be present as
mitigation witnesses. However, the record shows that both witnesses were able
to, and did, write letters to the judge requesting leniency. Further, Gibson’s
cousin attended the hearing and spoke on his behalf. Moreover, despite
Gibson’s assertions that he could not effectively cross-examine witnesses, the
only witnesses were from the deceased victim’s family, called by the
Commonwealth, and Gibson’s counsel asked them no questions. We identify
no prejudice.
III. Conclusion
For the foregoing reasons we affirm the judgment of the Kenton
Circuit Court.
All sitting. All concur.
8 The Commonwealth argues that Gibson did not comply with RCr 9.04 when
he filed his motion for a continuance. However, given the unique circumstances of the
continuance, we review Gibson’s argument.
10
COUNSEL FOR APPELLANT:
Jared Travis Bewley
Assistant Public Advocate
Department of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel J. Cameron
Attorney General of Kentucky
Mark Daniel Barry
Assistant Attorney General
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