KY COA March 7th - Cornelius - Bootstrapping tampering charge

Cornelius v. Commonwealth  2009-CA-1624  To be published

Cornelius was convicted of possession of marijuana and tampering with physical evidence after an officer found a bag of marijuana in his front pocket during a pat down search.  The Court of Appeals relied on Mullins v. Commonwealth, 350 S.W.3d 434 (Ky. 2011), to reverse his tampering conviction.  In Mullins, the Supreme Court stressed that the Commonwealth cannot bootstrap a tampering charge onto another charge when there is no evidence of an active intent by the defendant to impair the availability of evidence.

The Court of Appeals found that Cornelius did not take an additional step or active attempt to impair the availability of evidence.  Placing the marijuana in his pocket was tangential to the continuation of the possession offense.  The Court found that placing marijuana in an outer clothing pocket is analogous to a shoplifter who hides property on his person to avoid detection.  The concealment must be to prevent the evidence from being used in an official proceeding, a fact that is lacking in the typical shoplifting situation.  Concealing illegal drugs in a conventional location such as a pocket is directly incident to a possessory offense.  Were it not, a defendant would be required to have had the illegal drugs in plain view to avoid a tampering charge.

Contributed by Steven Buck

Featured Case - Tigue - Absense of Counsel for Withdraw of Guilty Plea

Tigue v. Commonwealth, 2009-CA-000080 & 2009-CA-001279 – rendered September 9, 2011

Reversing and Remanding

 The defendant filed RCr 11.42 and CR 60.02 motions and the Court of Appeals granted relief when it held that the defendant was deprived of counsel at a critical stage of the proceeding when counsel either refused or failed to file a motion to withdraw his guilty plea.  The Court found that the filing of a motion to withdraw a guilty plea is a critical stage of the proceeding, and the absence of counsel at a critical stage of the proceeding is a per se Sixth Amendment violation warranting reversal of a conviction or sentence without analysis for prejudice or harmless error.

In light of the importance of counsel’s assistance in properly framing the issues and presenting those issues to the court, as well as developing any factual support and being knowledgeable about the requirement of a written motion and the elements considered by a trial court on a motion to withdraw a guilty plea, we agree with these state and federal courts. Thus, we hold that Tigue was deprived of counsel at a critical stage of the proceeding when counsel either refused or failed to file a motion to withdraw Tigue’s guilty plea.

We find that the filing of a motion to withdraw a guilty plea is a critical stage of the proceeding, and it is well-established that the “absence of counsel at a critical stage of a criminal proceeding is a per se Sixth Amendment violation warranting reversal of a conviction, a sentence, or both, as applicable, without analysis for prejudice or harmless error.”

Contributed by Steven Buck