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Grimm v. Commonwealth10/22/2004
AFFIRMING
Jamie Danielle Grimm (Grimm) appeals her conviction for one count of assault in the second degree; operating a motor vehicle while under the influence of substance which impairs driving ability, first offense; and possession of marijuana, based on a plea which she tried to withdraw prior to the entry of a final judgment. The trial court has the discretion to allow a defendant to withdraw her guilty plea and we believe the trial court did not abuse its discretion. Hence we affirm.
On November 1, 2000, Grimm was the driver of a car which hit another vehicle head-on. The driver of the other car, John Blackburn, received a broken leg. A passenger in Blackburn's car, Janie Salyer, broke her collar bone. The investigating officer arrested Grimm, noting in the uniform offense report that the suspect's car "smelled strong of Marijuana. Suspects car would knock you down with the smell OF FRESH BURNED MARIJUANNA." Also, the officer noted, "MARIJUANNA Cigarette & seeds Found in CAR." Grimm was charged with DUI, KRS 189A.010(1)(d), which provides, "While under the combined influence of alcohol and any other substance which impairs one's driving ability; . . ." Grimm was also charged with possession of marijuana and two counts of assault in the second degree. Blood and urine samples were taken from Grimm and sent to the Kentucky State Police lab for analysis. A Toxicology Analysis Report dated March 14, 2001, reported "Drug content of Blood: Diazepam 0.005 mg%; Nordiazepam 0.005 mg%" and "Drug content of Urine: Hydrocodone 0.02 mg%; Cannabinoid Metabolites."
Grimm was indicted for two counts of assault in the second degree under KRS 508.020; operating a motor vehicle while under the influence of substance which may impair driving ability, first offense, under KRS 189A.010(1)(c); and possession of marijuana under KRS 218A.1422. On October 14, 2002, the Commonwealth offered five years on each assault charge, thirty days on the DUI, and twelve months for the possession of marijuana, all concurrent for a total of five years, without the Commonwealth objecting to probation. That same day, Grimm made a motion to enter a guilty plea which was accepted by the court. Sentencing was postponed pending a pre-sentence investigation.
A lot happened before sentencing, but suffice it to say Grimm requested to withdraw her guilty plea, which was denied. She was eventually sentenced on July 2, 2003, to five years, and also granted shock probation the same date.
On appeal, Grimm contends the trial court erred in not allowing her to withdraw her plea because there was no final judgment and because she was not advised as to the elements or nature of the offenses. RCr 8.10 provides that before judgment, "the court may permit the plea of guilty . . . to be withdrawn. . . ." (emphasis added.) This is discretionary, not mandatory on a trial court.
However, the word "may" in RCr 8.10 does not give a trial judge unfettered discretion to deny a motion to withdraw a guilty plea without affording the defendant a hearing on the motion. Our case law is clear that the discretion to deny a motion to withdraw a guilty plea exists only after a determination has been made that the plea was voluntary. If the plea was involuntary, the motion to withdraw it must be granted. (citations omitted.)
Rodriguez v. Commonwealth, Ky., 87 S.W.3d 8, 10 (2002).
The second part of Grimm's argument is that the plea was involuntary because she was advised incorrectly about the elements of the crimes, specifically that she could be convicted of DUI and wanton conduct if her operation of her car was under the influence of drugs which may impair her driving
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