Opinion
NO. 2018-CA-001573-MR NO. 2019-CA-000698-MR
01-17-2020
JONATHAN PETERS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Travis Bewley Brandon N. Jewell Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Christopher Henry Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEALS FROM BOYD CIRCUIT COURT
HONORABLE JOHN F. VINCENT, JUDGE
ACTION NO. 13-CR-00065 OPINION
VACATING AND REMANDING
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BEFORE: ACREE, COMBS, AND MAZE, JUDGES. COMBS, JUDGE: The issue in these consolidated appeals is whether the circuit erred in holding Appellant in contempt for non-payment of restitution under the terms of a diversionary agreement after it had expired. Having found error, we are compelled to vacate and remand with instructions.
On February 26, 2013, a Boyd County grand jury indicted Peters on one count of making false statement to obtain increase of benefits over $100, a Class D felony. On April 26, 2013, Peters entered a guilty plea. The Boyd Circuit Court sentenced Peters to one year, but it suspended entry of judgment imposing sentencing pursuant to the terms of a diversion agreement. On April 30, 2013, the court entered an agreed order placing Peters on pre-trial diversion for a period of five (5) years. A condition of his diversion required Peters to "pay restitution to the victim, Kentucky Division of Unemployment Insurance, in the amount of $6,870.00, in monthly installments of $150.00 commencing June 1, 2013." The agreed order further provided as follows:
It is expressly agreed and understood by the Defendant that upon his failure to specifically abide by the terms and conditions of this Diversion Agreement, and following the filing of a Motion by the Commonwealth's Attorney's Office, this matter will be assigned by the Judge for a final Sentencing whereupon the Judge will consider whether to commit the Defendant to a term of imprisonment or to a term of probation or conditional discharge. If, at the conclusion of this Agreement, Defendant has complied with all conditions set forth herein, the Commonwealth will move the Court for dismissal of these charges which will then be designated as Dismissed/Diverted. . . . During the Pre-Trial Diversion the Court may revoke or modify any condition therein . . . .
It is undisputed that Peters did not pay restitution during the entire period of diversion. It is also undisputed that the Commonwealth did not file a motion to revoke the diversion agreement before the diversionary period expired on April 30, 2018. Instead, several months after it expired, on August 7, 2018, the Commonwealth filed a motion for a hearing to show cause to address the issue of whether Peters was in contempt of court for having failed to pay restitution as ordered.
The court conducted a contempt hearing on October 4, 2018. On October 5, 2018, the circuit court entered an order finding Peters in contempt of court and sentencing him to ninety days in jail.
On October 8, 2018, Peters filed a notice of appeal to this Court from the October 5, 2018, order. That is Appeal No. 2018-CA-001573-MR.
On October 13, 2018, the circuit court entered another order in which it explained that the April 30, 2013, agreed order (the diversion agreement), stated that:
at the conclusion of the agreement, [if] the Defendant has complied with all conditions set forth herein, the Commonwealth will move the Court for dismissal of these charges which will then be designated as dismissed/diverted.The court determined that an order of dismissal would not be proper because Peters had not complied with the terms of the diversion agreement. The court also noted its October 5, 2018, order holding Peters in contempt and stated that it would review the matter on January 10, 2019.
On November 1, 2018, the Commonwealth filed a notice that it had no objection to a $500.00 cash purge of the 90-day contempt sentence with a request that Peters pay $100.00 per month towards his original order of restitution. On November 1, 2018, the court entered an order reflecting that "this day the Defendant has paid $500 and pledged to pay the sum of $100 per month beginning on December 1, 2018 and continuing each month until paid . . . . Defendant is to be released immediately from jail."
On November 21, 2018, the court allowed Peters to proceed in forma pauperis. On the same date, Peters filed a notice of appeal to this Court from the order entered October 12, 2018, "which relates to an order entered on October 5, 2018." That is Appeal No. 2019-CA-000698-MR.
On May 17, 2019, Peters filed a motion in this Court to consolidate the two appeals. The Commonwealth did not file a response. On June 12, 2019, this Court granted Peters's motion and ordered that the appeals be consolidated for all purposes. We note that at page four, footnote two, of Appellee's brief, the Commonwealth now "moves this Court to dismiss No. 2019-CA-000698 as interlocutory." A footnote does not suffice as a vehicle for filing a motion. Thus, that footnote is not a proper motion. CR 76.34.
Kentucky Rules of Civil Procedure.
Peters's first argument on appeal is that the trial court lacked particular-case jurisdiction to hold him in contempt because the diversionary period had expired "prior to the filing of any motion or objection by the Commonwealth."
In Martin v. Commonwealth, 576 S.W.3d 120 (Ky. 2019), the Commonwealth challenged the trial court's jurisdiction to grant shock probation because the defendant's motion was untimely filed. Our Supreme Court explained as follows:
[T]he type of jurisdiction at issue in this case is particular-case jurisdiction. It is axiomatic that a circuit court has subject-matter jurisdiction over felony cases. Once a court has acquired subject-matter and personal jurisdiction, challenges to its later rulings and judgment are questions incident to the exercise of jurisdiction rather than to the existence of jurisdiction. A court's power to affect its own judgment [constitutes] jurisdiction over a particular case. Such questions go more accurately to the propriety of the exercise of jurisdiction rather than to the existence of jurisdiction.Id. at 122 (Emphasis original) (internal quotation marks and footnotes omitted).
As Peters correctly notes, felony diversion is a statutorily created procedure. KRS 533.250 provides in relevant part:
Kentucky Revised Statutes.
(1) A pretrial diversion program shall be operated in each judicial circuit. . . . The pretrial diversion program shall contain the following elements:
(a) The program may be utilized for a person charged with a Class D felony offense who has not, within ten (10) years immediately preceding the commission of this offense, been convicted of a felony under the laws of this state, another state, or of the United States, or has not been on probation or parole or who has not been released from the service of any felony sentence within ten (10) years immediately preceding the commission of the offense[.]
KRS 533.256 governs failure to complete provisions of pretrial diversion agreement and provides as follows in relevant part as follows:
(1) If the defendant fails to complete the provisions of the pretrial diversion agreement within the time specified, or is not making satisfactory progress toward the completion of the provisions of the agreement, the Division of Probation and Parole, the victim, or a peace officer may inform the attorney for the Commonwealth of the alleged violation or noncompliance, and the attorney for the Commonwealth may apply to the court for a hearing to determine whether or not the pretrial diversion agreement should be voided and the court should proceed on the defendant's plea of guilty in accordance with the law.
(2) In making a determination as to whether or not a pretrial diversion agreement should be voided, the court shall use the same criteria as for the revocation of probation, and the defendant shall have the same rights as he or she would if probation revocation was sought.
The criteria for revocation of probation are set forth in KRS 439.3106. Richardson v. Commonwealth, 494 S.W.3d 495, 498 (Ky. App. 2015) (unequivocal language of KRS 533.256(2) compels application of the statutory criteria to diversion). --------
Peters relies upon Tucker v. Commonwealth, 295 S.W.3d 455 (Ky. App. 2009). In Tucker, the defendant was placed on diversion for Felony Non-support. He failed to pay child support as required by his diversion agreement. This Court held that the trial court erred in revoking the defendant's pretrial diversion after expiration of the diversionary term, where, as in the case before us, the Commonwealth failed to file a motion to void the agreement before it expired.
[T]he Commonwealth had the means readily at hand to seek to have Tucker's pretrial diversion revoked if it believed . . . [an] alleged violation of his pretrial diversion conditions justified such action. Those means are found in KRS 533.256(1). We need not concern ourselves with why the Commonwealth failed to act to have Tucker's pretrial diversion revoked before it expired. The fact is that it did not do so.
It should be remembered that Class D Felony Pretrial Diversion is a unique statutory creature, neither fish nor fowl. Although it has obvious similarities to them, as recognized by KRS 533.254, it differs from probation, probation with an alternative sentencing plan, shock probation, or conditional discharge in that it provides one of the few opportunities under Kentucky law for a qualified defendant to enter a guilty plea or an Alford plea to a qualified felony charge and yet, upon successful completion of the pretrial diversion period, not be branded with a felony conviction for the rest of his days. KRS 533.258 clearly provides the carrot component of the "carrot and stick" formula. KRS 533.256 provides the converse by outlining possible consequences for one who fails to satisfactorily complete the pretrial diversion.
Given the unique nature of Class D Felony Pretrial Diversion, and the profound significance to a defendant placed on Class D Felony Pretrial Diversion of possibly
losing his opportunity to avoid a felony conviction, it is not illogical that the General Assembly opted to provide a specific method by which the Commonwealth can seek to have Class D Felony Pretrial Diversion voided. Nor is it illogical that any such effort by the Commonwealth be required to be made before expiration of the pretrial diversion period. We so hold, and thus conclude that the revocation of Tucker's pretrial diversion was error.Tucker, 295 S.W.3d at 457-58 (emphases added) (footnotes omitted). This Court remanded the case to the trial court with the direction to "dismiss the indictment with prejudice and list [the] case as 'Dismissed-Diverted' pursuant to KRS 533.258." Id. at 458.
Peters submits that "per this Court's holding in Tucker, [this] case . . . should have been listed as 'dismissed-diverted' and the underlying indictment dismissed."
The Commonwealth contends that the trial court still had jurisdiction to hold Peters in contempt, relying on Ballard v. Commonwealth, 320 S.W.3d 69 (Ky. 2010). In Ballard, our Supreme Court held that the:
Appellant 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, Appellant 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.Id. at 74.
Tucker and Ballard both dealt with revocation of diversion. Neither is wholly dispositive of the issue before us: whether a defendant can be held in contempt for failure to complete a diversion agreement where the Commonwealth did not move to revoke the agreement before the diversionary period expired.
We find Commonwealth v. Nicely, 326 S.W.3d 441 (Ky. 2010), to be more analogous. In Nicely, the Supreme Court addressed "the subsidiary question whether an adult probationer can be held in contempt for probation violations." Id. at 443.
Since probation generally means that the defendant is not in custody, the only authority a trial court has to place him in custody is to revoke probation, and order commencement of the sentence of imprisonment, or to modify the conditions of probation to include a period of incarceration in the local jail. Without such statutory authority, a court has no power to incarcerate a person without an underlying criminal conviction, except for contempt.Id. at 448 (emphasis added). The Court noted that "[t]he overwhelming majority of jurisdictions that have considered this issue have concluded that holding a defendant in contempt of court for violating conditions of probation offends fundamental principles of fairness." Id. (quoting A.W. v. Commonwealth, 163 S.W.3d 4, 8-9 (Ky. 2005) (Cooper, J., dissenting)).
However, when a statutory provision governs, a court must apply that law rather than its inherent power of contempt. Arguably, any time a defendant violates a court order, he is subject to contempt proceedings. But when the legislature has prescribed standard provisions meant to apply to all defendants, it is not sound policy to resort instead to the individualized view of the court exercising its contempt power, which necessarily excludes the operation of the statute that governs.
Among them is Alfred v. State, 758 P.2d 130, 132 (Alaska Ct. App. 1988), holding that where "a defendant violates a condition of probation, . . . fairness requires that the court adhere to the terms of its agreement, and conduct a probation revocation hearing, not a contempt hearing." We also note Jones v. United States, 560 A.2d 513 (D.C. 1989), holding that use of the contempt power is inappropriate where a defendant violates a condition of probation. In Nicely, the Supreme Court did "not agree that the trial court ha[d] the option to find contempt rather than to apply the law of probation." 326 S.W.3d at 449.
A statutory provision specifically and directly governs this case. In KRS 533.256(1), the Legislature provided a clear method by which the Commonwealth can seek to have a pretrial diversion agreement voided. The circuit court lacked authority to revoke Peters's pretrial diversion because the Commonwealth failed to file a motion to revoke before the diversionary period had expired. Tucker, 295 S.W.3d at 456. We agree with Peters that the circuit court lacked particular-case jurisdiction to find contempt in this case. A court "has no power to do indirectly what it cannot do directly." Blasi v. Blasi, 648 S.W.2d 80, 82 (Ky. 1983) (Leibson, J., concurring).
Accordingly, we vacate the orders of the Boyd Circuit Court holding Peters in contempt and remand this case to the circuit court with the instruction to remit to him the $500 purge amount erroneously imposed.
MAZE, JUDGE, CONCURS.
ACREE, JUDGE, CONCURS IN PART AND DISSENTS IN PART.
ACREE, JUDGE, CONCURRING IN PART, AND DISSENTING IN PART.
I concur in the majority opinion regarding Court of Appeals No. 2018-CA-001573-MR. However, Court of Appeals No. 2019-CA-000698-MR was taken from an interlocutory order and this Court lacks subject matter jurisdiction to review it.
The Commonwealth raised an issue in its footnote that this Court lacks jurisdiction to review the obviously interlocutory order. The majority faults the Commonwealth for failing to raise the issue in the form of a motion conforming with CR 76.34. No Kentucky appellate court has ever taken that procrustean approach. To the contrary, even if "neither party claims that this Court lacks jurisdiction, we nevertheless have an independent duty to address our jurisdictional concerns." Linden v. Griffin, 436 S.W.3d 521, 524 (Ky. 2014). We should have concerns that an appellant brought an appeal of a trial court's order setting a hearing for a future date.
Otherwise, I concur with the majority opinion. BRIEFS FOR APPELLANT: Travis Bewley
Brandon N. Jewell
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Christopher Henry
Assistant Attorney General
Frankfort, Kentucky