Whether the constructive denial of counsel standard under Cronic v. United States or the ineffective assistance of counsel standard under Strickland v. Washington applies when trial counsel fails to inform the trial judge of counsel's assessment that the client is incompetent to plead guilty

QUESTIONS PRESENTED In October 2015 Petitioner Zapata entered an Alford guilty plea to the single count of murder charged in the indictment in return for the prosecutor’s recommendation of a sentence of twenty-four years of imprisonment. Shortly thereafter but prior to sentencing, Zapata moved to withdraw his guilty plea on the basis that his counsel had advised him he could withdraw his guilty plea at any time prior to sentencing. At the hearing on the withdrawal motion, his court-appointed counsel, Ms. Elleman, explained to the trial court that she could not represent Zapata on the motion. The trial court agreed and without appointing a new counsel for Zapata and without holding an evidentiary hearing denied Zapata’s motion to withdraw his guilty plea. On direct appeal, the Kentucky Supreme Court found that Elleman had a conflict of interest that deprived Zapata of the assistance of counsel on his motion to withdraw his guilty plea and that it was error for the trial court not to hold an evidentiary hearing at which Elleman would testified. The Kentucky Supreme Court vacated the judgment and order denying the motion to withdraw the guilty plea, but not the guilty plea itself, and remanded the case to the trial court for further proceedings that may be required. Zapata v. Commonwealth, 516 S$.W.3d 799 (Ky. 2017). In November 2017, substitute conflict counsel filed a new motion to withdraw the guilty plea including allegations of ineffective assistance of counsel. At the February 2018 evidentiary hearing conflict counsel confronted Elleman with the 2015 Motion to Enter Guilty Plea, a form motion submitted to the court, which contained on the reverse side a Certificate of Counsel, where defense counsel is instructed to certify in counsel’s view such matters as the defendant’s understanding of the charge, possible defenses, the plea offer, the motion to enter a guilty plea, his constitutional rights, counsel’s advice on the plea as well as counsel’s recommendation to the Court that the plea be accepted. The Certificate of Counsel on the motion tendered to the court at the 2015 entry of the guilty plea was unsigned. When asked at the evidentiary hearing why the Certificate was unsigned, Elleman explained she intentionally did not sign the Certificate because she believed Zapata was incompetent to plead guilty. Elleman admitted and the transcript of the plea colloquy confirms that Elleman never informed the court of her deliberate refusal to sign the certificate and never voiced to the court or to Zapata her assessment of Zapata’s incompetency to plead guilty. Elleman expressed she had no duty to sign the Certificate or inform the court of her doubts regarding her client’s incompetency to plead guilty. The transcript of the plea colloquy revealed that the trial judge never asked Elleman any questions about her appraisal of Zapata’s understanding of the matters delineated in the Certificate, but only if Zapata understood an A/ford plea. Surprisingly, in view of her admitted belief that Zapata was incompetent, Elleman answered yes. The trial court denied the motion to withdraw the guilty plea with no mention of the unsigned Certificate or Elleman’s failure to disclosed to the court or to Zapata her belief that Zapata was incompetent to plead guilty. On appeal the Kentucky Supreme Court addressed the question of the unsigned Certificate of Counsel and Elleman’s deliberate refusal to disclose to either the court or client her assessment that Zapata was incompetent to plead guilty by saying that “the better practice is for trial courts to review both motions to enter guilty pleas and certificates of counsel with a defendant’s counsel during the 1 plea colloquy,” but this failure in Zapata’s case did not “render the plea invalid.” Zapata v. Commonwealth, 8. W.3d (Ky. 2020), Slip Opinion, 10. The Zapata court never addressed Elleman’s admitted refusal to inform the court or her client during the plea colloquy of her assessment that Zapa