Commonwealth of Kentucky Court of Appeals

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1 RENDERED: AUGUST 25, 2017; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO CA MR ROBERT BRYANT APPELLANT APPEAL FROM HENRY CIRCUIT COURT v. HONORABLE KAREN A. CONRAD, JUDGE ACTION NO. 08-CR COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: ACREE, DIXON, AND JONES, JUDGES. JONES, JUDGE: Acting without the assistance of counsel, the Appellant, Robert Bryant, seeks review of the Henry Circuit Court s April 28, 2015, Order denying Bryant s RCr motion to withdraw his guilty plea. On appeal, Bryant argues the circuit court should have allowed him to withdraw his guilty plea because it was the product of ineffective and coercive counsel. The Commonwealth argues that the voluntariness of Bryant s plea was previously addressed by the circuit 1 Kentucky Rules of Criminal Procedure.

2 court when it denied the RCr motion Bryant filed in July of Having carefully reviewed the record, we agree with the Commonwealth. Therefore, we affirm the Henry Circuit Court. I. BACKGROUND Bryant was indicted in the Henry Circuit Court and charged with firstdegree robbery, first-degree burglary, kidnapping, failure to comply with sex offender registration, and first-degree PFO. 2 Prior to trial, Bryant entered into an agreement with the Commonwealth whereby he agreed to plead guilty to seconddegree robbery, first-degree burglary, first-degree unlawful imprisonment, failure to comply with sex offender registration, and first-degree PFO in exchange for the Commonwealth s recommendation of a fifty-year prison sentence. The trial court, after conducting a guilty plea colloquy in accordance with the principles of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), 3 accepted Bryant s plea as voluntary and intelligent and sentenced him in accordance with the Commonwealth s recommendation. Bryant later filed a motion to vacate, set aside, or correct sentence pursuant to RCr In that motion, Bryant claimed his counsel was ineffective when she advised him to plead guilty under the threat of his sister losing her job. 2 Persistent felony offender. 3 Pursuant to Boykin, a trial court must make an affirmative showing, on the record, that a guilty plea is voluntary and intelligent before it may be accepted. Boykin, 395 U.S. at , 89 S.Ct. at

3 After reviewing the record, the circuit court denied Bryant s motion without an evidentiary hearing. The court considered the totality of the circumstances and found that counsel did not provide ineffective assistance, and that Bryant entered his guilty plea intelligently and voluntarily. Bryant appealed to our Court, but failed to timely file an appellant brief, resulting in his appeal being dismissed. See Bryant v. Commonwealth, No CA (Ky. App. Feb. 15, 2017). In December of 2014, Bryant filed another motion with the circuit court seeking to withdraw his guilty plea pursuant to RCr Once again, Bryant alleged that he should be allowed to withdraw his guilty plea because his attorneys coerced him into pleading guilty under the threat of forcing his sister to testify, which Bryant believed would cause her to lose her job. The court denied the motion without an evidentiary hearing, noting that it had previously addressed the exact issue in its ruling on Bryant s RCr motion: The Court has previously addressed the issue of ineffectiveness of counsel in its ruling on Movant s RCr Motion to Vacate Sentence. The Court, after careful review of the record, found that Movant s guilty plea was entered into intelligently, knowingly and voluntarily and that movant had not met his burden of proof to show otherwise. It is from the order denying Bryant s RCr 8.10 motion that Bryant presently appeals. II. ANALYSIS RCr 8.10 allows for the withdrawal of a plea prior to judgment. The rule provides in part that [a]t any time before judgment the court may permit the -3-

4 plea of guilty... to be withdrawn and a plea of not guilty substituted. However, our courts have held that a trial court may exercise its discretion by allowing withdrawal of a guilty plea after sentencing if it finds that the accused s consent to plead guilty was unwillingly given and made under circumstances of fear, deceit, or coercion. Blair v. Commonwealth, 479 S.W.2d 643, 644 (Ky. 1972) (citations omitted). The test for abuse of discretion is whether the trial judge s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). On appeal, Bryant urges this Court to grant him relief because he was coerced into pleading guilty from fear his sister might lose her job if she were required to testify. However, we agree with the circuit court and the Commonwealth that the issue of the voluntariness of Bryant s plea was resolved in the circuit court s order denying Bryant s RCr motion. As it has previously been determined that Bryant voluntarily entered his plea, Bryant cannot show for purposes of his post-sentence motion to withdraw guilty plea, that the plea was unwillingly given or made under circumstances of fear, deceit, or coercion. Blair, 479 S.W.3d at 644. Additionally, in Kentucky, the re-litigation of claims already conclusively resolved is not permitted: The law of the case doctrine is an iron rule, universally recognized, that an opinion or decision of an appellate court in the same cause is the law of the case for a subsequent trial or appeal however erroneous the opinion or decision may have been. Union Light, Heat -4-

5 & Power Co. v. Blackwell s Adm r, 291 S.W.2d 539, 542 (Ky. 1956). The doctrine is predicated upon the principle of finality. The law of the case rule is a salutary rule, grounded on convenience, experience and reason. It has been often said that it would be intolerable if matters once litigated and determined finally could be relitigated between the same parties, for otherwise litigation would be interminable and a judgment supposed to finally settle the rights of the parties would be only a starting point for new litigation. Id. Brooks v. Lexington-Fayette Urban County Housing Authority, 244 S.W.3d 747, 751 (Ky. App. 2007) (quoting Union Light, Heat & Power Co. v. Blackwell s Adm r, 291 S.W.2d 539 (Ky. 1956)). In Bryant s RCr 8.10 motion to withdraw his guilty plea, he raised the same issue presented and denied in his motion made pursuant to RCr Bryant appealed the circuit court s denial of his RCr motion to our Court. However, he failed to file an appellant brief and likewise failed to respond to our order directing him to show cause why the appeal should not dismissed. Bryant s failures resulted in the appeal being dismissed. Our dismissal order became final on April 3, As a result, the circuit court s order regarding the voluntariness of Bryant s plea is the law of the case. Bryant cannot litigate those same issues as part of a new motion and new appeal. See Whittaker v. Morgan, 52 S.W.3d 567 (Ky. 2001) (explaining that the failure to appeal an adverse determination results in that determination becoming the law of the case, precluding subsequent appeals of -5-

6 the same issue). Accordingly, the circuit court did not abuse its discretion when it denied Bryant s motion. III. CONCLUSION For the foregoing reasons, the order of the Henry Circuit Court is affirmed. ALL CONCUR. BRIEFS FOR APPELLANT: Robert Bryant, pro se West Liberty, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky -6-

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