CRIMINAL LAW – “blind pleas”; right to withdraw prior guilty plea: Frankie Covington v. Commonwealth of Kentucky (SC 8/27/2009)

Frankie Covington v. Commonwealth of Kentucky
2007-SC-000773-MR August 27, 2009
Opinion by Justice Venters; all sitting.

On the day of trial, Covington’s counsel was advised by the prosecutor that he would recommend a 20 year 5 sentence in exchange for a plea of guilty. The trial judge advised Covington that under the local rules, all pleas entered on the day of trial were considered “open pleas” or “blind pleas.” Prior to sentencing, Covington requested to withdraw his plea, claiming medication rendered him incompetent when the plea was entered. The trial court conducted a competency hearing, after which Covington was found to be competent. He was subsequently sentenced to life imprisonment. While finding no fault with the determination that Covington was competent and his plea voluntary, the Supreme Court reversed for a new sentencing hearing, holding that under RCr 8.10, Covington had a right to withdraw his plea once the judge declined to impose the agreed upon 20 year sentence.

The Court held that Covington’s arrangement with the prosecutor was a plea agreement, and the trial court’s designation as a “blind plea” made no difference because the decision to accept or reject a plea agreement is always within the provenance of the trial court. Justice Cunningham, joined by Justice Scott and Justice Schroder, dissented, asserting that the arrangement was not a plea agreement as contemplated under RCr 8.10 and predicted in the future, prosecutors may be reluctant to make sentence recommendations for guilty pleas entered on the day of trial. The minority also noted that the local rules mandate all plea agreement be in writing—a requirement not met in this case. Justice Abramson joined the majority opinion, but agreed with the dissenters that the Supreme Court should require all felony plea agreements be in writing and signed by the prosecutor, defendant and defense attorney.

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