“Abandonment-by-Conduct”: Kentucky Supreme Court Re-affirms that a Defendant’s Post-Invocation Behavior Can Waive the Right to Self-Representation

Introduction

The Supreme Court of Kentucky’s unpublished memorandum opinion in Timothy L. Delehanty v. Commonwealth of Kentucky (2025-SC-0413-MR, rendered June 20 2025) addresses two recurring trial-level issues:

whether a defendant may withdraw guilty pleas entered before sentencing; and
whether — and when — a trial court must conduct a Faretta hearing after a defendant expresses a desire to represent himself.

Appellant Timothy Lee Delehanty, charged with an historic 2006 murder and a fresh in-custody attempted murder, sought to undo concurrent life-sentence plea agreements and, in the heat of a sentencing hearing, blurted out that he wished to “object pro se.” The Kenton Circuit Court denied his motions and proceeded to sentencing. On appeal, the Supreme Court affirmed, creating a valuable clarification — though unpublished — that a defendant who initially invokes the right of self-representation can nevertheless waive the right through subsequent cooperative conduct. The Court also re-emphasised the stringent standard for withdrawing guilty pleas once a thorough plea colloquy has been transcribed on the record.

Summary of the Judgment

Guilty-Plea Withdrawal: The Court upheld the circuit court’s finding that Delehanty’s pleas were knowing, intelligent, and voluntary. Because substantial evidence supported that finding, denial of the withdrawal motions was not an abuse of discretion.
Right to Self-Representation: Although Delehanty demanded to “address the court” pro se, he abandoned that request once his lawyer corrected a clerical error and the court agreed to hear withdrawal motions in both cases. Under Swan v. Commonwealth, the defendant’s subsequent participation with counsel constituted waiver, so the trial court committed no error by forgoing a Faretta hearing.

Because the opinion is designated “not to be published,” it is non-precedential under Kentucky Rule of Appellate Procedure 40(D). Nevertheless, its reasoning provides persuasive guidance in the absence of a published decision on identical facts.

Detailed Analysis

1. Precedents Cited and Their Influence

The opinion is anchored in a network of United States Supreme Court and Kentucky decisions. Key cases include:

Boykin v. Alabama, 395 U.S. 238 (1969) – Requires an on-the-record showing that a plea is voluntary and intelligent.
Williams v. Commonwealth, 229 S.W.3d 49 (Ky. 2007) – Reiterates that a plea must be knowing, intelligent, and voluntary.
Porter v. Commonwealth, 394 S.W.3d 382 (Ky. 2011) – Mandates a hearing when pre-sentence withdrawal of a plea is sought.
Bronk v. Commonwealth, 58 S.W.3d 482 (Ky. 2001) – Marries plea-withdrawal analysis to the two-pronged ineffective-assistance test from Strickland v. Washington.
Faretta v. California, 422 U.S. 806 (1975) – Constitutional right to self-representation.
Swan v. Commonwealth, 384 S.W.3d 77 (Ky. 2012) – Adopts the Fifth Circuit’s “abandonment-by-conduct” approach announced in Brown v. Wainwright.
Winstead v. Commonwealth, 283 S.W.3d 678 (Ky. 2009) – Emphasises the requirement of a “timely and unequivocal” request to proceed pro se.

By applying Swan, the Court reasoned that Delehanty’s fleeting outburst in the midst of sentencing — quickly supplanted by full cooperation with counsel — did not preserve his Faretta claim. Meanwhile, the Bronk/Strickland framework placed the burden on Delehanty to identify errors by counsel so egregious that he would rationally have rejected the plea. The record, however, showed effective advocacy, extensive discovery, and rational plea negotiations in the face of overwhelming evidence (including video of the jail attack).

2. Legal Reasoning

a) Plea Withdrawal

Voluntariness Presumption – Delehanty’s on-the-record admissions (“I killed Paul Clayton”) and acknowledgement that no threats or promises induced him create a “strong presumption of verity” (Edmonds).
Ineffective-Assistance Overlay – Even assuming counsel error, the Court asked whether a rational defendant would have insisted on trial. Given the possibility of consecutive life sentences, life without parole, or the death penalty once aggravators were added, the answer was “no.”
Abuse-of-Discretion Review – The trial judge’s credibility determinations (finding Delehanty “evasive”) and reliance on the plea colloquy were neither arbitrary nor unreasonable.

b) Self-Representation

Timeliness & Equivocation – Request materialised only after the court began sentencing, late in the proceedings.
Abandonment-by-Conduct Doctrine – Once the judge agreed to hear withdrawal motions in both cases, Delehanty actively proceeded with counsel for nearly an hour, testifying under oath. Under Swan, such conduct signals waiver.
No Prejudice Shown – Delehanty never identified strategy or arguments he would have made pro se that counsel failed to present.

3. Impact on Kentucky Practice

Faretta Clarification – Trial courts may, without reversible error, forgo a Faretta hearing when a defendant’s subsequent behaviour demonstrates abandonment of the self-representation request. This guards against tactical or dilatory invocations made in the heat of the moment.
Plea-Withdrawal Rigor – The Court underscores that defendants must supply concrete, objectively plausible reasons why a plea was irrational, not merely profess “buyer’s remorse.” Lawyers can rely on a solid plea colloquy as a potent shield on appeal.
Strategic Plea Negotiations – The opinion illustrates that introducing fresh, serious charges (here, the in-jail attempted murder) can dramatically erode a defendant’s bargaining power, legitimising concurrent life offers otherwise unavailable.

Complex Concepts Simplified

Plea Colloquy – A scripted conversation in which the judge confirms on the record that the defendant understands the charges, rights, and consequences of pleading guilty.
Aggravator – A statutory factor (e.g., robbery during a murder) that increases the severity of potential punishment, sometimes opening the door to the death penalty.
Persistent Felony Offender (PFO) – Kentucky’s habitual-offender statute; first-degree PFO status sharply amplifies sentence ranges.
Faretta Hearing – A colloquy to ensure a defendant’s waiver of counsel is voluntary, knowing, and intelligent, and that the defendant appreciates the perils of self-representation.
Abuse of Discretion – A deferential appellate standard asking whether the lower court’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.

Conclusion

Although unpublished, Delehanty v. Commonwealth contributes important practical guidance:

A duly recorded, detailed plea colloquy coupled with credible counsel testimony makes post-plea withdrawal exceedingly difficult.
A defendant’s right to self-representation, while fundamental, is not immune from waiver through “abandonment-by-conduct.” Trial courts may rely on a defendant’s subsequent cooperation with counsel to infer waiver, sparing courts from needless Faretta hearings invoked for strategic delay.
The decision reinforces that objectivity — not after-the-fact regret — drives plea-withdrawal analysis, and that extensive discovery, mental-health exploration, and realistic plea-deal assessments seldom amount to ineffective assistance.

In the broader Kentucky landscape, the opinion arms judges with a roadmap for handling courtroom outbursts that contain ambiguous pro se requests and reminds defense counsel to build a meticulous record at the plea stage. Litigators should view “abandonment-by-conduct” as a live doctrine capable of extinguishing late-stage self-representation claims.