354 S.W.3d 141
Ky. Ct. App.2011Background
- Simms, a/k/a Kevin Franklin, appeals Jefferson Circuit Court’s denial of his motion to withdraw a jury-sentencing waiver.
- In July 2009, Simms was convicted by jury of second-degree manslaughter and tampering with physical evidence and faced a combined sentence proposed as 10 years for manslaughter and 5 for TWPE, to run concurrently.
- The sentencing waiver was negotiated outside the jury’s presence, reducing the potential sentence and waiving the right to jury sentencing and to appeal.
- The waiver was memorialized in a Jefferson County form titled “Waiver of Jury Sentencing Proceeding,” signed by Simms, his counsel, and the Commonwealth’s counsel, plus an oral colloquy in which the court confirmed the waiver.
- Simms later moved to withdraw the waiver, offering to accept the maximum 15-year term in exchange for restoring appellate rights; the trial court denied this motion in January 2010.
- Simms argues the written form and oral colloquy inadequately informed him that the right to appeal is constitutional; the court analyzes waiver validity and voluntariness to uphold the waiver and denial of withdrawal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Simms validly waived the right to appeal. | Simms—Simms argues waiver lacked constitutional notice. | Simms—waiver was voluntary and informed despite lacking explicit constitutional term. | Waiver valid; voluntariness affirmed. |
| Whether the trial court erred in denying withdrawal of the waiver. | Simms contends withdrawal should be allowed given improper notice. | Court properly denied withdrawal based on record and testimony. | Court did not err; withdrawal denied. |
| Whether any improper statement about not being able to appeal affected the outcome. | Simms: error in stating no appeals possible. | Error harmless; other rights remained; some appeals preserved. | Harmless error; no reversible effect. |
Key Cases Cited
- Williams v. Jones, 338 S.W.2d 693 (Ky.1960) (trial of guilt/innocence not extend to penalty)
- Brady v. U.S., 397 U.S. 742 (1970) (waiver requires voluntariness, knowledge, awareness)
- Peretz v. U.S., 501 U.S. 923 (1991) (waivers of basic rights subject to clear standard)
- Parson v. Commonwealth, 144 S.W.3d 775 (Ky.2004) (guides waiver of rights; generally applicable to Kentucky)
- Johnson v. Commonwealth, 120 S.W.3d 704 (Ky.2003) (right to appeal may be waived)
- Grigsby v. Commonwealth, 302 S.W.3d 52 (Ky.2010) (Boykin-like scrutiny not required for every waiver)
- Windsor v. Commonwealth, 250 S.W.3d 306 (Ky.2008) (limits on waivable appellate rights; some cannot be waived)
- Blackledge v. Allison, 431 U.S. 63 (1977) (solemn in-court declarations carry verity; presumption of truth)
- Rigdon v. Commonwealth, 144 S.W.3d 283 (Ky.App.2004) (voluntariness standard in guilty pleas)
- Fugate v. Commonwealth, 62 S.W.3d 15 (Ky.2001) (clear error standard for evaluating plea waivers)