Opinion
NO. 2013-CA-000993-MR
10-10-2014
COMMONWEALTH OF KENTUCKY APPELLANT v. KEVIN NAPIER APPELLEE
BRIEF FOR APPELLANT: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Dorislee Gilbert Special Assistant Attorney General Louisville, Kentucky BRIEF FOR APPELLEE: David S. Weinstein Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE FREDERIC COWAN, JUDGE
ACTION NO. 09-CR-001860
OPINION AFFIRMING
BEFORE: MAZE, MOORE, AND VANMETER, JUDGES. MOORE, JUDGE: The Commonwealth appeals the order of the Jefferson Circuit Court granting Kevin Napier's motion to dismiss the charges against him as diverted. After a careful review of the record, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Napier was indicted on one count of second-degree trafficking in a controlled substance (hydrocodone); one count of theft of a controlled substance ($300.00 or less); and one count of illegal possession of a controlled substance (marijuana). The Commonwealth provided an offer on a plea of guilty, in which the Commonwealth proposed that if Napier entered a guilty plea to all of the charges, the Commonwealth would recommend Napier be sentenced to two years of imprisonment for the trafficking conviction; two years of imprisonment for the theft conviction; and twelve months of imprisonment for the possession conviction. Napier would also have to forfeit all property seized. The Commonwealth further proffered to recommend that the sentences run concurrently for a total of two years of imprisonment and that it would recommend supervised diversion for a period of three years. Napier moved to enter a guilty plea in accord with the Commonwealth's offer on a plea of guilty.
The circuit court accepted Napier's guilty plea on October 12, 2009, and granted his request for pretrial diversion for a period of three years. A little more than one year later, a hearing was held on the Commonwealth's "motion to revoke [Napier's diversion]." The Commonwealth's motion was based upon the fact that Napier had violated the terms of his pretrial diversion on October 30, 2010, by being charged with: second-degree disorderly conduct; third-degree assault; resisting arrest; alcohol intoxication in a public place; and criminal mischief. Napier stipulated that he violated the conditions of his pretrial diversion. Rather than grant the Commonwealth's motion to revoke, the circuit court modified Napier's pretrial diversion by ordering that he be maintained on diversion; comply with all conditions previously ordered; and serve sixty days on home incarceration. On the record before us, it appears that Napier did not thereafter violate any terms of the conditions of his pretrial diversion.
Although Napier was on diversion, not probation, both the Commonwealth in its motion to revoke and the circuit court in its order on the motion to revoke referred to it as "probation" rather than as "diversion." Given that it is clear that both the Commonwealth and the circuit court could only be referencing diversion herein, we will use the correct term of "diversion" and consider the Commonwealth's motion as one to revoke Napier's pretrial diversion.
Two years later, after the period of pretrial diversion had expired, Napier moved to dismiss the charges in the present case against him as diverted pursuant to KRS 533.258. The Commonwealth opposed this motion, arguing that given Napier's October 30, 2010 violations of his pretrial diversion, he did not successfully complete pretrial diversion. The circuit court held a hearing and granted Napier's motion to dismiss as diverted.
Kentucky Revised Statute.
The Commonwealth now appeals, contending that Napier was not entitled to have his case dismissed-diverted because he did not successfully complete diversion.
II. ANALYSIS
This case presents somewhat of a legal "black hole." We can understand the Commonwealth's argument that Napier did not complete the terms of his pretrial diversion due to his October 30, 2010 criminal charges. But on the other hand, the circuit court did not grant the Commonwealth's timely motion to revoke Napier's pretrial diversion either. Rather, the court only modified the terms of Napier's pretrial diversion by requiring him to serve 60 days on home incarceration in addition to complying with the other terms of his pretrial diversion.
While attention is focused on Tucker v. Commonwealth, 295 S.W.3d 455, 456-58 (Ky. App. 2009) and Ballard v. Commonwealth, 320 S.W.3d 69, 74 (Ky. 2010), both cases are factually distinguishable. Consequently, neither is dispositive of this case.
In Tucker, 295 S.W.3d 455, the defendant was placed on pretrial diversion, and one of the conditions of his diversion was that he had to pay child support. However, Tucker failed to abide by this condition of his diversion, and he was arrested for this failure. He was released on bail and a subsequent review resulted "in a notation that the matter would be 'redocket[ed] upon new motion.'" Tucker, 295 S.W.3d at 457. Nothing else occurred until after the three-year diversion period ended. At that time, Tucker and his counsel appeared before the court for a final disposition, during which they informed the court that Tucker was presently incarcerated on other charges and that he had not been served anything regarding the revocation of his pretrial diversion. The circuit court revoked Tucker's pretrial diversion and sentenced him to two years of imprisonment. However, this Court reversed on appeal, reasoning that Tucker's pretrial diversion should not have been revoked because the Commonwealth was required to seek to have the diversion voided before the expiration of the pretrial diversion period. See Tucker, 295 S.W.3d at 458. This Court remanded Tucker's case to the circuit court "with directions to dismiss the indictment with prejudice and list [the] case as 'Dismissed-Diverted' pursuant to KRS 533.258." Tucker, 295 S.W.3d at 458.
The next year, the Kentucky Supreme Court cited part of Tucker approvingly in Ballard, 320 S.W.3d 69. In Ballard, the trial court did not believe it had jurisdiction to void a diversion agreement after the period of diversion had ended although the Commonwealth had filed a timely motion to revoke. The Supreme Court held that "the trial court has authority to void the diversion agreement, even after the period of diversion has ended, so long as the Commonwealth has entered a timely motion to void prior to expiration of the diversion period." Id. at 74 (citing RCr 8.04 and Tucker, 295 S.W.3d at 458) (emphasis added). The Court continued, holding that Ballard
Kentucky Rule of Criminal Procedure.
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would have been entitled to dismissal of the underlying charges had the period of diversion expired, and had he completed the diversion agreement, and had there been no pending motion to revoke. However, [Ballard] did not complete the diversion agreement because he was convicted of additional criminal offenses. Also, the Commonwealth moved to revoke the agreement prior to the expiration of the diversion period. An order listing the charges as dismissed-diverted is not warranted.Ballard, 320 S.W.3d at 74.
In the present case, the Commonwealth filed a timely motion to revoke before Napier's period of diversion ended, and the circuit court ruled on this motion. These facts take this case outside the realms of both Tucker and Ballard.
The Commonwealth contends that its timely motion to revoke was sufficient to give the circuit court authority to void the diversion agreement, even in light of the modification the court made of sixty days of home incarceration after Napier violated the terms of his initial pretrial diversion. We disagree. The Commonwealth never sought reconsideration of that matter, nor did it file another motion to revoke before Napier's diversion period ended. Given that the circuit court ruled on the Commonwealth's timely motion to revoke and given that thereafter Napier complied with the modified terms of his pretrial diversion, we cannot say it was error for the circuit court to grant Napier's motion to dismiss the charges as diverted pursuant to KRS 533.258.
Finally, we note that the Commonwealth contends that the circuit court improperly exercised its authority by granting dismiss-divert status to Napier without the Commonwealth's consent. However under the unique facts of this case, we cannot say that the circuit court erred in determining that KRS 533.258 was satisfied over the Commonwealth's objection.
For the stated reasons, we hereby affirm.
MAZE, JUDGE, CONCURS.
VANMETER, JUDGE, CONCURS IN RESULT ONLY AND WILL NOT FILE SEPARATE OPINION. BRIEF FOR APPELLANT: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Dorislee Gilbert
Special Assistant Attorney General
Louisville, Kentucky
BRIEF FOR APPELLEE: David S. Weinstein
Louisville, Kentucky