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Date: 08-23-2020
Case Style:
LAYW THOMAS V. COMMONWEALTH OF KENTUCKY
Case Number: 2018-SC-000437-MR
Judge: John D. Minton Jr.
Court: Supreme Court of Kentucky
Plaintiff's Attorney: Daniel Jay Cameron
Attorney General of Kentucky
Todd Dryden Ferguson
Office of the Attorney General
Defendant's Attorney:
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Call 888-853-4800 if you need a Criminal Defense Attorney in Kentucky.
Description:
 |
Layw Thomas, a youthful offender, appeals to us as a matter of right1
from the circuit court’s judgment sentencing him to prison for life plus fifty
years. At sentencing, the trial court found Thomas ineligible for consideration
for probation, presumably because Thomas, who was nineteen years old when
he pleaded guilty, stood convicted of serious crimes that would place him in the
violent offender category and render him ineligible for probation. Thomas
raises several issues in this appeal of which we find no merit. But we do find
merit in a single issue and hold that the violent offender statute is inapplicable
to youthful offenders for the purposes of the trial court’s consideration of
probation, even if the youthful offender has reached the age of majority at the
1 Ky. Const. § 110(2)(b).
3
time of sentencing. Consequently, the judgment is vacated, and the case
returned to the trial court for resentencing consistent with this opinion.
I. BACKGROUND AND PROCEDURAL HISTORY
A. Proceedings leading to the first judgment that was set aside by the
Court of Appeals.
For crimes committed when he was seventeen years old, Thomas’s
charges were brought to the juvenile session of the district court, which
transferred the charges to circuit court for Thomas’s prosecution as a youthful
offender under the provisions of KRS2 635.020(4). The charges wound up in
two separate indictments in circuit court, and, by the time Thomas resolved the
charges by entering guilty pleas under agreements with the Commonwealth, he
was a nineteen-year-old adult.
In one indictment, in which he was represented by Eric Bearden, Thomas
pleaded guilty to first-degree robbery, first-degree assault, second-degree
assault, and wanton endangerment in exchange for a recommended twelveyear sentence. In the other indictment, in which Thomas was represented by
William Aldred, Thomas entered an Alford plea3 to murder for a recommended
sentence of twenty years. This last plea agreement provided that the sentence
would run concurrently with the sentence in the first-mentioned indictment. In
short, the Commonwealth agreed to recommend all sentences to run
concurrently for a total of twenty years’ imprisonment.
2 Kentucky Revised Statutes.
3 North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
4
Both plea agreements included a “hammer clause,”4 which stated the
following: “Failure to appear at sentencing shall result in the Commonwealth
moving to modify the sentence to the maximum sentence on all charge(s), to
run consecutively, or to the maximum aggregate allowed by law.” Neither plea
agreement tallied the number of years a maximum prison sentence might
contain.
At the plea colloquy conducted in the case involving the murder charge,
the Commonwealth recommended a twenty-year sentence, denial of probation,
and Thomas’s release to remain at home wearing an electronic tagging device.5
The trial court was also informed that Thomas was cooperating with the
Commonwealth on matters beyond the scope Thomas’s present charges. The
trial court expressed reservations about the release terms offered to Thomas
under the plea agreement but ultimately agreed.6 Thomas went on to answer
4 A hammer-clause provision is “a provision in a plea agreement which, in lieu
of bail, allows the defendant, after entry of his guilty plea, to remain out of jail pending
final sentencing. Generally, a hammer clause provides that if the defendant complies
with all the conditions of his release and appears for the sentencing hearing, the
Commonwealth will recommend a certain sentence. But, if he fails to appear as
scheduled or violates any of the conditions of his release, a specific and substantially
greater sentence will be sought.” Knox v. Commonwealth 361 S.W.3d 891, 893–94 (Ky.
2012).
5 The Commonwealth stated that it already checked to see if this arrangement
would be possible because Thomas’s mother, with whom Thomas lived, lived in
Clarksville, Tennessee, and found that the GPS tracking was possible. The prosecutor
did not ask, and the trial court did not verify, who would supervise Thomas’s release,
but the trial court directed Thomas to cooperate with the Kentucky Office of Probation
and Parole.
6 The trial court accepted the term in the plea agreement providing for Thomas’s
release pending the sentencing hearing after the Commonwealth and Thomas’s
defense attorney approached the bench and showed the trial court unidentified
papers—presumably describing Thomas’s cooperation with the Commonwealth—to
peruse. The record does not identify these papers or disclose their content.
5
all the questions asked by the judge during the Boykin7 plea colloquy. Thomas
confirmed that he understood the terms of the plea agreement, that he
understood that he would be waiving certain constitutional rights by pleading
guilty, that he was given no promises to receive a certain sentence if he pleaded
guilty, and that he was satisfied with counsel’s representation.8
The trial court accepted Thomas’s plea, finding that it was entered
willingly, freely, intelligently, and voluntarily. The court then told Thomas that
he must cooperate with Probation and Parole and come back to court for
sentencing or he would receive the maximum sentence on both charges, to run
consecutively. The trial court did not explicitly state the number of years the
maximum sentence would be if Thomas failed to appear. But it did admonish
Thomas that he had “a lot riding on this” agreement, to which Thomas replied,
“You don’t have to worry about that.” The Commonwealth also included a
verbal warning that he was not to commit any new crimes while on home
incarceration or it would move to amend the plea agreements to reflect the
maximum sentences. This condition was not contained in either written plea
agreement, but Thomas stated that he understood he was not to commit more
crimes.
The trial court entered a home incarceration order, and Thomas was
released with an electronic ankle monitor to live with his mother in Clarksville,
7 Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
8 Thomas also provided these affirmative answers when asked these same
questions by the trial court during the plea colloquy on the other indictment. The only
substantive difference for the purposes of this case is that Thomas responded “yes”
when the trial court asked him if he was satisfied with the representation provided to
him by Bearden.
6
Tennessee. Thomas later failed to appear for the final sentencing hearing. He
cut off the ankle monitor and disappeared.
When Thomas eventually came before the trial court, his pleas for
leniency were rejected and the hammer clause provisions were enforced by
imposing a life sentence with the fifty-year sentence to run consecutively. In
the judgment, the trial court specifically noted that it sentenced Thomas to
“Imprisonment because . . . the defendant is not eligible for probation.” The
trial court did not state the basis for Thomas’s ineligibility. The trial court
specifically found that the maximum sentences were imposed on account of
“defendant having failed to appear as ordered for previous sentencing hearing
in violation of the plea agreement.”9
After unsuccessful motions for post-conviction relief over the ensuing
seven years, Thomas, acting pro se, filed a motion for relief under CR10 60.02
(d), (e) and (f), arguing that the trial court had improperly imposed the hammer
clauses at sentencing. The trial court denied CR 60.02 relief without a hearing.
On appeal, the Court of Appeals found merit in Thomas’s argument that
the trial court erred in sentencing him under the hammer clauses. The Court of
Appeals reversed the trial court’s denial of CR 60.02 relief, vacated the
judgment, and remanded the case, finding that the trial court “did not exercise
its independent judgment as to the proper sentence to be imposed under the
applicable statutory law and rules of criminal procedure.” The Court of Appeals
9 The trial court arraigned Thomas on new charges of tampering with a prison
monitoring device, escape and bail jumping following the final sentencing hearing.
10 Kentucky Rules of Civil Procedure.
7
found that the trial court considered only Thomas’s violation of the plea
agreement and punished Thomas for that violation instead of imposing
punishment for the underlying crimes.11 Accordingly, the Court of Appeals held
that Thomas was entitled to have the judgment set aside under CR 60.02(f)12
because the trial court erred under the substantive rules established in
McClanahan v. Commonwealth13 and Knox v. Commonwealth14 when it did not
consider whether the sentences imposed for the underlying crimes were
11 The Court of Appeals also rejected Thomas’s argument that the trial court
imposed an illegal sentence when it ordered the fifty-year sentence run consecutively
to the life sentence, holding that a definite-term sentence may properly run
consecutively to an indefinite-term sentence when the two sentences arise from
different cases. Higgins v. Commonwealth, No. 2014-SC-000466-MR, 2016 WL 671150
(Ky. Feb. 18, 2016); Clay v. Commonwealth, No. 2009-SC-000012-MR, 2010 WL
2471862 (Ky. June 17, 2010). The Court of Appeals also rejected the Commonwealth’s
argument that Thomas’s CR 60.02 motion was procedurally improper. The Court of
Appeals found that Thomas’s case “presented circumstances of such an extraordinary
nature” necessary to invoke CR 60.02 relief even if other procedural steps were
required to be followed by Thomas before bringing the CR 60.02 action. The Court of
Appeals reasoned that Thomas was entitled to the extraordinary relief provided under
CR 60.02 for many reasons, the “[m]ost glaring is that Thomas was denied counsel in
his post-conviction proceedings[,]” despite repeated requests for assistance of counsel.
12 CR 60.02(f) provides the following: “On motion a court may, upon such terms
as are just, relieve a party or his legal representative from its final judgement, order, or
proceeding upon the following grounds: . . . or (f) any other reason of an extraordinary
nature justifying relief.”
13 308 S.W.3d 694, 702 (Ky. 2010) (reversing the sentence imposed pursuant to
the hammer clause in the plea agreement because the trial court failed to exercise
independent discretion in setting the sentence, the sentence was imposed without
giving due consideration to the presentence report, and the sentence was imposed
without consideration of “the nature and circumstances of the crime and the history,
character and condition of the defendant”).
14 361 S.W.3d at 899 (holding that a “judge’s commitment to impose a sentence
based upon a defendant’s breach of a hammer clause condition, coupled with the
imposition of that sentence without proper consideration of other relevant factors, is
an abuse of discretion”).
8
appropriate considering all of the other factors required under RCr15 11.02,16
KRS 532.050,17 and KRS 533.010(2).18
B. Proceedings leading to the judgment under review by this Court.
On remand from the Court of Appeals, the trial court denied Thomas’s
motion for recusal, finding that there was nothing in the record that showed
bias against Thomas or called into question the trial court’s objectivity or
impartiality. But the trial court held an evidentiary hearing on Thomas’s
motion to withdraw his guilty pleas and final sentencing.
During the evidentiary hearing on the motion to withdraw his guilty
pleas, Aldred and Bearden, Thomas’s attorneys in the prior prosecutions,
Rebecca DiLoreto, Director for the Institute on Compassionate Justice, and
Thomas himself testified.
Aldred testified about his conduct in representing Thomas before and
during plea negotiations, Thomas’s cooperation with law enforcement,19 and
15 Rules of Criminal Procedure.
16 RCr 11.02(1) provides, in part, that “. . .[b]efore imposing sentence the court
shall, if the defendant is guilty of a felony, cause a presentence investigation to be
conducted, examine and consider the report, and furnish a copy of the report to the
attorney for the Commonwealth and the attorney for the defendant no later than two
(2) business days prior to final sentencing….”
17 KRS 532.050(1) provides, in part, that “[n]o court shall impose a sentence for
conviction of a felony, other than a capital offense, without first ordering a presentence
investigation after conviction and giving due consideration to a written report of the
investigation . . . .”
18 As this Court explained in Knox, KRS 533.010(2) directs the trial court, not
only to consider “‘probation, probation with an alternative sentencing plan, or
conditional discharge’ before imposing a sentence, but to refrain from imposing a
sentence of imprisonment unless, based upon ‘consideration of the nature and
circumstances of the crime and the history, character and condition of the defendant,’
the court is of the opinion that: [one of the conditions provided in (a-c) applies in the
particular case]”. 361 S.W.3d at 896 (quoting KRS 533.010(2)).
19 Aldred testified that he was reluctant to go into detail about the negotiations
involving Thomas’s cooperation with law enforcement because of the risk to Thomas.
9
his discussion of the hammer clauses with Thomas before signing the
agreements.
Aldred, Thomas’s retained counsel in the second indictment, testified
that before negotiating the challenged plea, he conducted standard discovery,
received all the evidence from the Commonwealth, visited the murder scene
where he interviewed witnesses, and met with Thomas roughly fifteen times.
Aldred stated that he did not collect Thomas’s mental health or school records.
Based on his investigation and review, Aldred concluded that Thomas could
not succeed at trial. He began plea negotiations with the Commonwealth that
included an offer to cooperate in other criminal investigations.20 Aldred did not
remember verbatim his discussions with Thomas about the terms of the plea
agreement, but he met with Thomas three to five times to discuss the plea
agreement and Thomas’s cooperation with police. Aldred admitted that
Thomas met with the prosecutor and police without him and that it was
Thomas who informed Aldred that the Commonwealth might allow him to be
released to go home before final sentencing.
As for the discussion with Thomas about the hammer clauses, Aldred
testified that these clauses are common in plea agreements in the jurisdiction
where Thomas was prosecuted. Before Thomas accepted the plea bargain,
Aldred explained to Thomas and his mother the nature of the hammer clause,
The attorney further remarked that when he first heard that Thomas had cut his ankle
monitor off and fled, the attorney feared that the “bad guys had gotten him.”
20 It appears from statements in the record that Thomas received favorable
terms in exchange for his cooperation with law enforcement. But the record does not
disclose the nature or extent of Thomas’s cooperation.
10
including the potential consequences of violating it. Alfred also testified that he
emphasized to Thomas that he was getting a favorable sentencing
recommendation considering the gravity of the underlying charges and that if
he failed to appear for sentencing or violated any other term of the agreement,
he could go to prison for life. Aldred further testified that despite his youth,
Thomas understood the plea agreements and the consequences of breaching
their terms, and that Thomas could enter a knowing, intelligent, and voluntary
plea.
Bearden, Thomas’s appointed counsel in the first indictment, testified
regarding his representation of Thomas before he entered the first guilty plea.
The extent of Bearden’s participation in the case is unclear, specifically in
negotiating the plea agreements, but Aldred took the lead in representing
Thomas during the plea negotiations. Bearden testified that he did not actively
participate in the case after Thomas’s family hired Aldred to represent Thomas
in the murder case. Bearden did not meet with Thomas often, did not
remember ever meeting with Thomas while he was held in juvenile detention,
and did not remember participating in the plea negotiations. Like Aldred,
Bearden confirmed that hammer clauses were standard in local plea
agreements. Bearden also testified that he did not remember specifically
discussing the plea agreement with Thomas but stated that it was his practice
to go over the terms of any plea agreement offered to his clients. Finally,
Bearden testified that he did not remember Thomas making any statements
that suggested a lack of understanding of the plea agreements.
11
DiLoreto described the process she has routinely undertaken when
representing juveniles. Although she admitted that she never met Thomas and
was not involved in negotiating the plea agreements, DiLoreto flatly stated that
she would not have allowed Thomas to commit to the hammer-clause
provisions. She based that statement on information she gleaned from her
review of Thomas’s school and medical records, which disclosed that Thomas
had a demonstrated history of problems with impulsivity and resistance to
authority. DiLoreto testified that, had she represented Thomas pre-trial, she
would have had a more in-depth discussion with him about his goals beyond
simply being released from jail before sentencing because she did not believe
Thomas could succeed on release under the circumstances as they existed at
the time of negotiations.
Finally, Thomas testified on his own behalf about Bearden’s and Aldred’s
representation during plea negotiations. Thomas stated that Bearden did not
discuss the plea agreement with him before the guilty-plea proceeding. Instead,
Bearden brought the plea agreement to Thomas on the day of the scheduled
court date and Thomas signed it without discussion. Regarding Aldred’s
representation, Thomas stated that while he had discussed his desire to go
home and the possibility of a plea agreement with Aldred a couple of times
before signing the agreement, Aldred only discussed the specific agreement
regarding home incarceration for about five minutes before Thomas “appeared
at the podium.” According to Thomas, Aldred did not review each term of the
plea agreement with him, and neither Aldred nor Bearden discussed the
possible consequences of failure to appear for sentencing. Thomas
12
acknowledged that the trial court did inform him of the consequences of
pleading guilty and the effect of the hammer clauses, recalling the trial court’s
warning that he would receive the maximum sentence if he did not appear for
sentencing. Thomas testified that he did not understand the magnitude of what
he was agreeing to when he signed the plea agreements, and he described the
struggles he faced in his personal life that caused him to flee.21
At the close of the evidentiary hearing, the trial court denied Thomas’s
motion to withdraw his guilty pleas. The trial court articulated the standard for
withdrawing a guilty plea from Edmonds v. Commonwealth22 and found that
Thomas was aware of the direct consequences at the time he entered the plea.
The trial court observed that Thomas was not a child but a savvy person who
knew what he was doing at the time he entered the plea. The trial court entered
the following order:
Having conducted a hearing and heard the arguments of counsel and
considered the case law relevant to this motion, the court finds that
the defendant’s guilty plea was entered knowingly, intelligently and
voluntarily, that his lawyers were effective and that he was aware of
the ramifications of failing to follow his release conditions. The motion
to withdraw his plea is denied.
The sentencing hearing immediately followed the denial of Thomas’s
motion to withdraw his guilty pleas. At the sentencing hearing, Thomas called
to testify on his behalf: Dr. Lawrence Steinberg, a professor of psychology
21 Most importantly, Thomas explained that he fled because his mother’s
landlord threatened to evict her if Thomas did not leave the home. While Thomas’s
mother and Aldred were attempting to make other arrangements for Thomas to move
out, Thomas cut off his ankle monitor and fled.
22 189 S.W.3d 558, 566 (Ky. 2006).
13
specializing in adolescent development; Thomas’s mother; and Brian Westover,
a family friend.
Dr. Steinberg described the lack of impulse control common in teenagers,
a characteristic that persists past the teenage years through ages twenty-two
or twenty-three. Thomas’s mother, a friend, and Thomas himself all testified
about Thomas’s character before he committed the offenses, his character now
that he is in his thirties, and about plans for Thomas’s life if he were to be
released from prison. Thomas testified again about the problems he faced on
home incarceration and about his achievements since he has been in prison,
including completing parenting, anger management, and drug rehabilitation
courses.
At the end of the sentencing hearing, the trial court found that the
original sentence imposed under the hammer clauses was the most appropriate
sentence. The trial court stated that considering all the evidence presented
during the evidentiary hearing and the final sentencing hearing, as well as the
contents of the written PSI and the nature and circumstances of Thomas’s
charges, history, character and condition, it believed that Thomas’s guilty pleas
were proper, as was the Commonwealth’s request to enforce the hammer
clause. The trial court entered the following written order:
A separate sentencing hearing having been conducted where the
defendant testified and presented testimony of other witnesses and
having heard the arguments of counsel, and considered all the statutory
requirements of sentencing, the court finds that imposition of a sentence
consistent with the original plea agreement subject to the “hammer
clause” implications is appropriate. The judgement so stating is
incorporated here by reference.
14
The trial court again imposed a life sentence and a fifty-year sentence, to
run consecutively. And as in the first judgment, the trial court ruled that it
sentenced Thomas to “imprisonment because. . . [Thomas] is not eligible for
probation.” Again, the judgment does not explain the trial court’s basis for its
determination that Thomas was ineligible for probation, and Thomas’s counsel
did not raise any question to the determination at that time.
II. ANALYSIS
Thomas raises several issues on appeal. First, he argues that the trial
court erred in denying his motion to withdraw his guilty plea. Second, he
argues that the trial court erred in denying his recusal motion. Finally, Thomas
raises several arguments in support of his assertion that, even if his guilty
pleas were voluntary, the trial court erred by imposing the challenged sentence.
The Commonwealth disputes Thomas’s first two claims of error but concedes
that the trial court erred by failing to consider probation before imposing the
sentence of imprisonment.
For the reasons explained below, we find that the trial court did not
abuse its discretion in denying Thomas’s motion to withdraw his guilty pleas
nor in denying recusal. But we agree with Thomas, as conceded by the
Commonwealth, that the trial court erred in failing to consider probation or
another form of conditional discharge in accordance with KRS 533.010 before
sentencing Thomas to imprisonment.
A. The trial court did not err by failing to allow Thomas to withdraw his
guilty pleas.
RCr 8.10 provides, in part, that “[a]t any time before judgment the court
may permit the plea of guilty or guilty but mentally ill, to be withdrawn and a
15
plea of not guilty substituted.” We have previously established that the use of
the word “may” in the statute indicates that a trial court has discretion to
determine whether to allow a defendant to withdraw a guilty plea, but this
discretion is not “unfettered.”23 To determine whether the trial court erred
when it denied Thomas’s motion to withdraw his guilty pleas, we must conduct
a two-step analysis.
First, we must determine whether the trial court erred in finding that
Thomas’s guilty pleas were voluntary.24 This determination is subject to the
clearly erroneous standard of review,25 meaning that the trial court’s ruling on
that issue stands if supported by substantial evidence.26 If there is no clear
error in finding the pleas voluntary, we must then determine if the trial court
abused its discretion by not allowing Thomas to withdraw his guilty pleas.27 A
trial court abuses its discretion when it makes a decision that is “arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.”28
23 Rodriguez v. Com., 87 S.W.3d 8, 10 (Ky. 2002).
24 See id.; Bronk v. Commonwelath, 58 S.W.3d 482, 487–88 (Ky. 2001); Rigdon
v. Com., 144 S.W.3d 283, 288 (Ky. App. 2004).
25 Edmonds, 189 S.W.3d at 566; Rigdon, 144 S.W.3d at 288 (citing Bronk, 58
S.W.3d at 489 (Cooper, J. concurring)).
26 See, e.g., Edmonds, 189 S.W.3d at 566 (explaining that to determine whether
a ruling was made in clear error, the question is “whether the determination was
supported by substantial evidence”); Bronk, 58 S.W.3d. at 488 (“Our review of the
totality of the circumstances surrounding Bronk's plea finds substantial evidence that
supports the trial court's finding.”).
27 Rigdon, 144 S.W.3d at 288 (explaining that if the trial court finds that a plea
was entered voluntarily, it is within the discretion of the trial court to grant or deny a
motion to withdraw) (internal citations omitted). In contrast, if a trial court finds that a
plea was involuntary the trial court is required to grant a defendant’s motion to
withdraw. Id.
28 Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (“The test for
abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable,
16
In Edmonds v. Commonwealth, we explained that:
A guilty plea is involuntary if the defendant lacked full awareness of the
direct consequences of the plea or relied on a misrepresentation by the
Commonwealth or the trial court. . . . A guilty plea is intelligent if a
defendant is advised by competent counsel regarding the consequences
of entering a guilty plea, including the constitutional rights that are
waived thereby, is informed of the nature of the charge against him, and
is competent at the time the plea is entered.29
A presumption of voluntariness arises from a properly conducted plea
colloquy under Boykin v. Alabama,
30 but simply looking at the colloquy is not
enough to determine that a guilty plea is voluntary. Trial courts must further
consider the totality of circumstances surrounding the plea, an inherently factsensitive inquiry.31
The crux of Thomas’s claim of error on the voluntariness issue turns on
the alleged ineffectiveness of trial counsel. He adds that his pleas were not
voluntary and intelligent because the prosecutor added terms at the guilty-plea
hearing. Finally, he argues that cognitive characteristics affecting teenagers
like him distorted his appreciation of the consequences under the hammer
clauses of failing to appear for sentencing. Thomas claims that but-for these
unfair, or unsupported by sound legal principles.”); see also Rigdon, 144 S.W.3d at
288 (citing Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000)).
29 189 S.W.3d at 566 (citing Brady v. United States, 397 U.S. 742, 755–56, 90
S.Ct. 1463, 1472–73, 25 L.Ed.2d 747 (1970); Boykin, 395 U.S. at 243, 89 S.Ct. at
1712, 23 L.Ed.2d 274).
30 395 U.S. at 242–44, 89 S.Ct. at 1711–12, 23 L.Ed.2d 274 (“A plea of guilty is
more than a confession which admits that the accused did various acts; it is itself a
conviction; nothing remains but to give judgment and determine punishment. . .
‘Presuming waiver [of several federal constitutional rights that are involved when a
guilty plea is entered] from a silent record is impermissible.’”).
31 Edmonds, 189 S.W.3d at 566; Rodriguez, 87 S.W.3d at 10–11 (citing Brady,
397 U.S. at 749); Leyra v. Denno, 347 U.S. 556, 558, 74 S.Ct. 716, 717, 98 L.Ed. 948
(1954); Bronk, 58 S.W.3d. at 486).
17
circumstances, he would not have signed a plea agreement that involved a
hammer clause. We find no merit in any of these arguments.
With respect to the ineffective assistance of counsel claim, Thomas
argues specifically that his trial counsels’ performance was deficient because
they failed to: (1) investigate adequately his background before advising him to
accept the plea offers; (2) investigate adequately the underlying charges; (3)
accompany him in all negotiations with the Commonwealth; (4) satisfy their
duty to explain the terms of the plea agreement in terms he could understand;
(5) ensure that he could comply with home incarceration; (6) warn against
accepting a plea deal that contained a hammer clause; and (7) explain the
sentences that could be imposed under the hammer clause if he violated the
terms of the plea agreements.
We considered similar arguments in Bronk v. Commonwealth,
32 a case in
which Bronk was prosecuted in circuit court as a youthful offender for crimes
he committed in connection with a fire in which a firefighter was killed.33 After
Bronk failed a polygraph examination that his counsel arranged but failed to
attend, Bronk confessed to his involvement in the fire. 34 He later agreed to
plead guilty and testify against a co-defendant in exchange for a recommended
sentence of twenty-five years’ imprisonment.35 The trial court accepted Bronk’s
guilty plea, but postponed final sentencing until after the co-defendant’s trial.36
32 58 S.W.3d. 482.
33 Id. at 484.
34 Id. at 485.
35 Id.
36 Id.
18
Before the co-defendant’s trial, the trial court granted Bronk’s motion to
appoint new counsel, who in turn moved to withdraw his guilty plea based on
the assertion that he entered the plea involuntarily because his counsel
provided ineffective assistance.37 The trial court denied Bronk’s motion to
withdraw his guilty plea, and he was sentenced in accordance with the plea
agreement.38
On appeal to this Court, Bronk argued that the trial court erred in
denying his motion to withdraw his guilty plea because his first counsel’s
ineffective assistance rendered his plea involuntary.39 He claimed that his
retained counsel’s performance was deficient because, among other reasons, he
failed to conduct any independent investigation of the case and to accompany
him to the polygraph examination.40
In denying relief, this Court stated that whenever a defendant disputes
the voluntariness of a guilty plea based on claims of ineffective assistance of
counsel, trial courts must apply the following standard:
In cases where the defendant disputes his or her voluntariness, a
proper exercise of this discretion requires trial courts to consider the
totality of the circumstances surrounding the guilty plea and juxtapose
the presumption of voluntariness inherent in a proper plea colloquy
with a Strickland v. Washington[41]
inquiry into the performance of
counsel: A showing that counsel's assistance was ineffective in
enabling a defendant to intelligently weigh his legal alternatives in
deciding to plead guilty has two components: (1) that counsel made
errors so serious that counsel's performance fell outside the wide
range of professionally competent assistance; and (2) that the deficient
37 Id.
38 Id.
39 Id.
40 Id. at 486.
41 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
19
performance so seriously affected the outcome of the plea process that,
but for the errors of counsel, there is a reasonable probability that the
defendant would not have pleaded guilty, but would have insisted on
going to trial. Evaluating the totality of the circumstances
surrounding the guilty plea is an inherently factual inquiry which
requires consideration of the accused's demeanor, background and
experience, and whether the record reveals that the plea was
voluntarily made.42
In applying the standard above, this Court found in Bronk that the trial
court did not abuse its discretion when it found that, despite acknowledged
errors made by counsel, Bronk’s plea was voluntary.43 The Court found that
there was substantial evidence to support the trial court’s finding given that,
among other things, the trial court relied on the testimony of the original judge
that, despite his awareness of Bronk’s retained counsel’s deficiencies, he still
believed that Bronk’s plea was voluntarily entered, Bronk was an adult at the
time he pleaded guilty, Bronk appeared to be “articulate and to have an aboveaverage comprehension of the proceedings,” and Bronk was given an
opportunity during the plea colloquy to retract his plea and inform the court
that he was dissatisfied with his retained counsel.44 Furthermore, the Court
emphasized that Bronk faced life in prison and the plea agreement involved a
more lenient sentence and earlier parole-eligibility date.45
Like the defendant in Bronk, Thomas was transferred to circuit court to
be tried as a youthful offender but entered the guilty pleas after he reached the
age of majority. Thomas also points to failures by his trial counsel like defense
42 Bronk, 58 S.W.3d. at 486–87.
43 Id. at 487–88.
44 Id.
45 Id. at 488.
20
counsel’s alleged failures in Bronk. Thomas claims that: Bearden’s conduct was
deficient because he failed to represent him during plea negotiations and to
appear to represent him during the original sentencing hearing; Aldred’s
conduct was deficient because he failed to accompany Thomas to all plea
negotiations with the Commonwealth;46 and both Bearden and Aldred failed to
adequately investigate Thomas’s background and the circumstances
surrounding the underlying charge.47
Thomas also raised claims of deficient representation by counsel that are
novel in comparison to the claims made in Bronk. Thomas claims that his
attorneys had a duty to communicate with him in a different way than they
would with adult offenders because he was proceeding in the case as a
youthful offender, was only nineteen at the time his accepted the plea bargains
and had ADHD and a documented history of conflict with authority. Thomas
further argues that these same characteristics required his trial counsel not
only to ensure that he had adequate guidance while on home incarceration
but, more importantly, to refrain from advising Thomas to accept a plea
bargain that involved a hammer clause. In support of these arguments,
Thomas relies on DiLoreto’s testimony48 and on the Supreme Court’s decisions
46 Bronk claimed that his trial counsel was ineffective because he failed to
accompany Bronk when he went to take a polygraph examination at the police
department. Bronk, 58 S.W.3d. at 486.
47 Bronk also claimed that his trial counsel “failed to interview witnesses or
otherwise investigate the case. . . .[and] to review with Bronk the discovery materials
provided by the Commonwealth.” Id.
48 Specifically, DiLoreto’s testimony regarding how the law applies differently to
juveniles based on the brain science on juvenile cognitive development, and regarding
how Supreme Court Rules (SCR) 3.130(1.4) and 3.10(1.4) apply to require attorneys to
21
in Roper v. Simmons,
49 Graham v. Florida,50 Miller v. Alabama,
51 and
Montgomery v. Louisiana.52
Thomas argues that Diloretto’s testimony and the decisions in Roper and
the cases following it indicate that the law requires youths to be treated
differently in some circumstances to comport with the Eighth53 and
Fourteenth54 Amendments of the United States Constitution. We disagree with
Thomas that this is one of those cases. Here, based on the totality of the
circumstances surrounding Thomas’s guilty pleas, we find that Thomas’s case
is more akin to Bronk and supports the trial court’s finding that Thomas’s
pleas were voluntarily entered. We acknowledge that, at the very least,
Bearden’s apparently lackadaisical approach may have fallen “outside the wide
range of professionally competent assistance.”55 We further acknowledge that
communicate with client’s in different way when the client suffers from “diminished
capacity,” including that of which is due to age.
49 543 U.S. 551, 578, 125 S.Ct. 1183, 1200, 161 L.Ed.2d 1 (2005) (ruling that
imposing the death penalty on offenders who are convicted of crimes committed when
they were under the age of eighteen is unconstitutional under the Eighth and
Fourteenth Amendments).
50 560 U.S. 48, 82, 130 S.Ct. 2011, 2034, 176 L.Ed.2d 825 (2010) (ruling that
the Eighth and Fourteenth Amendments prohibit the sentence of life without the
possibility of parole for juvenile offenders who did not commit homicide).
51 567 U.S. 460, 479, 132 S.Ct. 2455, 2469, 183 L.Ed.2d 407 (2012) (ruling
that the Eighth and Fourteenth Amendments prohibits any sentencing scheme that
mandates life without the possibility of parole on any juvenile offender).
52 136 S.Ct. 718, 736 193 L.Ed.2d 599 (2016) (holding that Miller is retroactive).
53 U.S. CONST. amend. VIII (“Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.”).
54 U.S. CONST. amend. XIV (“No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws”).
55 Id.
22
Thomas alleges additional instances of ineffective assistance of counsel that are
different than the claims presented in Bronk. But we cannot say, even taken
together, that Bearden’s and Aldred’s performance “so seriously affected the
outcome of the plea process that, but for the[se] errors . . . there is a
reasonable probability” that Thomas would not have pleaded guilty but instead
insisted on going to trial.56
Thomas was not a juvenile when he entered these guilty pleas. Bearden
and Aldred both testified that Thomas seemed like an intelligent man, and that
he never did or said anything that indicated that he could not fully understand
the terms of the plea agreements. Aldred took the lead in representing Thomas
in the plea negotiations for both indictments, which resulted in a potentially
lenient disposition for Thomas in both cases. Thomas was competent enough to
negotiate, alone, with the Commonwealth in a way that convinced the
prosecutor to agree to allow him to return to his mother’s home in Clarksville,
Tennessee, before final sentencing while still recommending a total sentence of
twenty years. And while it is disputed that Thomas was explicitly told that if he
did not appear for sentencing the hammer-clause provisions in the plea
agreements could cause him to be sentenced to life plus 50 years, Aldred
testified that he emphasized the hammer-clause provision to Thomas before he
entered the plea and explained that it was crucial that Thomas show up for
sentencing. Even if Thomas did not know he could receive a life sentence plus
fifty years, he knew that he received a very favorable recommendation from the
56 Bronk, 58 S.W.3d. at 486–87.
23
Commonwealth and he knew that if he did not follow the terms of both the
written agreement and those explained to him orally during the guilty-plea
hearing, that he could receive a life sentence.
Thomas also argues that even if his guilty plea were voluntarily entered,
the trial court still abused its discretion by denying his motion to withdraw the
pleas based on: the disparity between the sentence offered in exchange for the
pleas and the sentence actually imposed; the ineffective assistance of counsel
in failing to investigate his case and advise him of the consequences of violating
the plea agreement; and the ultimate imposition of a “grossly unfair sentence,”
especially considering the “great benefit” Thomas provided through his
cooperation with the Commonwealth and law enforcement.57
As stated above, a trial court abuses its discretion when it renders a
decision that is “arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.”58 These arguments are essentially the same as the arguments
addressing the voluntariness issue, and we reject them for the same reasons.59
Accordingly, we find that the trial court did not abuse its discretion by denying
Thomas’s motion to withdraw his guilty pleas.
57 The record does not reflect the extent of Thomas’s cooperation with law
enforcement and the Commonwealth.
58 English, 993 S.W.2d at 945; see also Rigdon, 144 S.W.3d at 288.
59 See Bronk, 58 S.W.3d. at 486–87; see also Simpson v. Commonwealth, No.
2007-SC-000623-MR, 2009 WL 735878 *1, *6–*7 (Ky. Mar. 19, 2009) (rejecting
defendant’s argument that the court abused its discretion in denying his motion to
withdraw his voluntary guilty plea).
24
B. The trial court did not err in denying Thomas’s motion asking the
judge to recuse.
Thomas further argues that the trial court erred by denying his motion
for recusal. Thomas asserts that considering the Court of Appeals’ holding that
the trial court erroneously imposed the first sentence based solely on the
hammer clause instead of considering all the factors required by law, the same
trial court “could not preside over the resentencing without letting that bias
affect its decisions or appearing to be partial to the hammer clause sentence.”
In support of this argument, Thomas relies primarily on the trial court’s
earlier judgment and its pointed statements made to Thomas and Thomas’s
mother from the bench. Thomas cites to SCR 4.300 Canon 3E(1)(a) of the
Judicial Code of Ethics, KRS 26A.015, and supporting case law for rules
governing recusal. In response, the Commonwealth argues that relying on an
adverse ruling in prior proceedings is not enough to satisfy the “onerous”
burden of proof required for recusal of a trial judge and that the record
discloses no bias against Thomas. We agree with the Commonwealth that
Thomas did not satisfy his burden of showing that the trial court should have
recused and find no abuse of discretion in the trial court’s denial of that motion
to recuse.
Supreme Court Rule (SCR) 4.300, Canon 3E of the Judicial Code of
Conduct, provides that “[a] judge shall disqualify himself or herself in a
proceeding in which the judge's impartiality might reasonably be questioned,
including but not limited to instances [where] the judge has a personal bias or
prejudice concerning a party or a party's lawyer, or personal knowledge of
disputed evidentiary facts concerning the proceeding[.]” “The burden of proof
25
required for recusal of a trial judge is an onerous one. There must be a showing
of facts ‘of a character calculated seriously to impair the judge's impartiality
and sway his judgment.’”60 A court’s denial of a motion for recusal is reviewed
for abuse of discretion, which again is defined as “‘whether the trial judge’s
decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.’”61
In Minks v. Commonwealth, this Court upheld a trial court’s denial of the
defendant’s recusal motion, which he filed before a hearing on his motion to
suppress evidence obtained upon execution of a search warrant signed by the
same judge.62 And in Dunlap v. Commonwealth, this Court upheld the trial
court’s denial of the defendant’s recusal motion despite the fact that the judge
previously presided over a custody case involving the victims of the defendant’s
crimes.63 In Dunlap, the Court distinguished the circumstances in that case
from those present in Sommers v Commonwealth,
64 a case in which this Court
held that a judge should have recused himself from a murder case in which he
had previously presided over the guardianship case that placed the murder
victims in the custody of the defendant, and the judge had accessed media
outlets to defend his custody decision after the murders were committed.65
60 Dunlap v. Commonwealth, 435 S.W.3d 537, 590 (Ky. 2013) (quoting Stopher v.
Commonwealth, 57 S.W.3d 787, 794 (Ky. 2001)).
61 Id. at 587 (quoting English, 993 S.W.2d at 945).
62 427 S.W.3d 802, 806 (Ky. 2014).
63 Dunlap, 435 S.W.3d at 590.
64 843 S.W.2d 879 (Ky. 1992).
65 Dunlap, 435 S.W.3d at 591.
26
We agree with Thomas that the trial court’s on-the-record statements
that were directed at Thomas’s mother reflected the trial court’s irritation over
Thomas’s failure to appear for final sentencing. But it is clear from the
authorities cited above that this Court has been reluctant to disqualify a judge
unless the judge’s conduct is egregious, or the claims of impartiality or bias are
based on more than an adverse ruling. We disagree that the trial court’s angry
words or previous sentencing decision were evidence that the judge was
incapable of presiding fairly and impartially in the present matter. And we
reject Thomas’s argument that the trial court’s failure to embrace his
arguments in mitigation of punishment raises legitimate concern over the trial
court’s lack of impartiality. A trial court is not required to impose a more
lenient sentence simply because evidence is presented that could justify
mitigation.66 The trial court is only required to give due consideration to such
mitigating evidence.
C. The trial court erred in sentencing Thomas, a youthful offender,
without first considering probation or another form of conditional
discharge as a sentencing option.
Finally, Thomas offers four arguments in support of his assertion that,
even if his guilty pleas were voluntary, the trial court erred by denying his
request to impose the original twenty-year sentence. First, Thomas argues that
the trial court violated Kentucky’s Juvenile Code and KRS 533.010 in
determining the sentence. Second, Thomas argues that the trial court violated
KRS 532.110 in determining the sentence. Third, Thomas argues that the trial
66 Prater v. Commonwealth, 421 S.W.3d 381, 384 (Ky. 2014) (explaining that
sentencing is a discretionary function of the trial court and therefore subject to review
for abuse of discretion).
27
court ignored this Court’s holdings in Knox and McClanahan and KRS 533.010
by again imposing the hammer-clause sanction in lieu of a sentence. Finally,
Thomas argues that even if the trial court did not violate Knox and
McClanahan, considering all the mitigating evidence presented in favor of
imposing the sentence available under the original terms of the plea agreement,
the trial court still abused its discretion by imposing the maximum sentence
available under the law. Thomas also requests that this court hold that a
hammer clause that results in a maximum sentence for a youthful offender
violates state and federal constitutions.
We find merit only in Thomas’s first argument and agree that the trial
court erred by failing to follow the directives of Kentucky’s Juvenile Code by
imposing a sentence of imprisonment in violation of KRS 533.010, which
requires consideration of probation, conditional discharge, or an alternative
sentence before imposing imprisonment. It appears that the trial court and
counsel for both sides—who failed to raise the issue before the trial court—
erroneously assumed Thomas was ineligible for probation.
Thomas primarily relies on KRS 533.010, KRS 600.010(2) and
KRS 640.030 to argue that the trial court violated Kentucky’s Juvenile Code.
Specifically, Thomas argues, and the Commonwealth agrees, that the special
probation rules under KRS 635.020(4), KRS 640.040(3) and Merriman v.
Commonwealth67 required the trial court, before imposing the challenged
sentence, to determine whether probation or another form of alternative
67 265 S.W.3d 196, 198–201 (Ky. 2008).
28
sentence was appropriate for Thomas. The trial court did not consider these
alternative sentencing options because it found that “the Defendant is not
eligible for probation,” but the trial court does not state for the record its
reason for finding Thomas ineligible. And even though Thomas himself failed to
raise the issue of probation eligibility before the trial court, sentencing issues
may be raised for the first time on appeal.68
KRS 533.010(1) provides that “[a]ny person who has been convicted of a
crime and who has not been sentenced to death may be sentenced to
probation, probation with an alternative sentencing plan, or conditional
discharge as provided in this chapter.” KRS 533.010(2) provides that “[b]efore
imposition of a sentence of imprisonment, the court shall consider probation,
probation with an alternative sentencing plan, or conditional discharge. Unless
the defendant is a violent felon as defined in KRS 439.3401 or a statute
prohibits probation . . . .”69 And KRS 533.060(1) provides, in part, that “[w]hen
a person has been convicted of an offense or has entered a plea of guilty to an
offense classified as a Class A, B, or C felony and the commission of the offense
involved the use of a weapon from which a shot or projectile may be discharged
68 Jones v. Commonwealth, 382 S.W.3d 22, 27 (Ky. 2011) (explaining that the
statement made in Cummings v. Commonwealth, 226 S.W.3d 62, 66 (Ky. 2007), that
sentencing is jurisdictional was “simply [] a manifestation of the non-controversial
precept that an appellate court is not bound to affirm an illegal sentence just because
the issue of the illegality was not presented to the trial court); Hughes v.
Commonwealth, 875 S.W.2d 99, 100 (Ky. 1994) (finding that it could still consider
appellant’s argument that the trial court was required to consider appellant’s request
for probation under KRS 533.010 before sentencing him pursuant to his unconditional
plea agreement even though the appellant did not raise this argument before the trial
court because “all defendants have the right to be sentenced after due consideration of
all applicable law[]”) (citations omitted).
69 (emphasis added).
29
that is readily capable of producing death or other serious physical injury, the
person shall not be eligible for probation . . . .”
These statutes establish that a trial court must consider probation for an
adult defendant before imposing a sentence of imprisonment unless: (1) the
defendant has been sentenced to death;70 (2) the crime of which the defendant
stands convicted falls within one of the categories outlined in KRS 533.060; or
(3) the defendant is considered a violent offender as defined in KRS 439.3401.71
But this standard is different when the defendant being sentenced committed
the underlying crimes before he or she reached the age of majority and was
transferred to circuit court to be prosecuted as a youthful offender.72
The crimes for which Thomas entered pleas would certainly render him
ineligible for probation consideration by operation of either KRS 533.060(1) or
KRS 533.010(2) if the crimes had been committed after he reached the age of
70 KRS 533.010(1) (“Any person who has been convicted of a crime and who has
not been sentenced to death may be sentenced to probation. . .”).
71 KRS 533.010(2). KRS 439.3401 defines a “violent offender” as, among other
things, “any person who has been convicted of or pled guilty to the commission of: (a)
A capital offense; (b) A Class A felony;(c) A Class B felony involving the death of the
victim or serious physical injury to a victim. . . .”
72 KRS 635.020(4) provides that “[a]ny other provision of KRS Chapters 610 to
645 to the contrary notwithstanding, if a child charged with a felony in which a
firearm, whether functional or not, was used in the commission of the offense had
attained the age of fourteen (14) years at the time of the commission of the alleged
offense, he shall be transferred to the Circuit Court for trial as an adult if, following a
preliminary hearing, the District Court finds probable cause to believe that the child
committed a felony, that a firearm was used in the commission of that felony, and that
the child was fourteen (14) years of age or older at the time of the commission of the
alleged felony. If convicted in the Circuit Court, he shall be subject to the same
penalties as an adult offender, except that until he reaches the age of eighteen (18)
years, he shall be confined in a facility or program for juveniles or for youthful
offenders, unless the provisions of KRS 635.025 apply or unless he is released
pursuant to expiration of sentence or parole, and at age eighteen (18) he shall be
returned to the sentencing Circuit Court for proceedings consistent with KRS
640.030(2).”
30
majority. But, as the parties agree, even though Thomas was transferred to the
circuit court to be tried as an adult under KRS 635.020, he was still entitled to
the protections provided for youthful offenders under Kentucky’s Juvenile
Code.73 With respect to KRS 533.060, Kentucky’s Juvenile Code explicitly
states that the probation limitations contained in KRS 533.060(1) are
inapplicable to youthful offenders like Thomas.74 With respect to KRS
533.010(2), while none of the provisions of Kentucky’s Juvenile Code explicitly
states that KRS 533.010(2) is inapplicable to youthful offenders, based on our
holdings in Merriman v. Commonwealth,75 Buckner v. Commonwealth,76 and
Edwards v. Harrod,
77 it is perhaps unclear whether the statute is applicable to
youthful offenders who are sentenced after they reach age eighteen.78
73 KRS 600.020(72) defines a “youthful offender” as “any person regardless of
age, transferred to Circuit Court under the provisions of KRS Chapter 635 or 640 and
who is subsequently convicted in Circuit Court.”
74 KRS 640.040(3) provides that “No youthful offender shall be subject to
limitations on probation, parole or conditional discharge as provided for in KRS
533.060.”
75 265 S.W.3d at 198–201.
76 No. 2006–SC–000479–MR, 2008 WL 5051578 (Ky. Nov. 26, 2008).
77 391 S.W.3d 755, 760–62 (Ky. 2013).
78 KRS 640.030 provides, in part, that “. . . any sentence imposed upon the
youthful offender shall be served in a facility or program operated or contracted by the
Department of Juvenile Justice. . . If an individual sentenced as a youthful offender
attains the age of eighteen (18) prior to the expiration of his sentence, and has not
been probated or released on parole, that individual shall be returned to the
sentencing court. At that time, the sentencing court shall make one (1) of the following
determinations: (a) Whether the youthful offender shall be placed on probation or
conditional discharge; (b) Whether the youthful offender shall be returned to the
Department of Juvenile Justice to complete a treatment program, which treatment
program shall not exceed the youthful offender's attainment of the age of eighteen (18)
years and five (5) months . . . or (c) Whether the youthful offender shall be
incarcerated in an institution operated by the Department of Corrections[.]”
31
As indicated above, Thomas argues, and the Commonwealth agrees, that
this case should be remanded for resentencing because the trial court was
required under KRS 533.010(2), Merriman, Buckner, and Edwards to consider
whether probation or another form of conditional discharge was an option for
Thomas before imposing a sentence of imprisonment. While we agree with the
parties that our decisions in Merriman, Buckner, and Edwards are relevant and
instructive, these cases did not decide the precise issue now before us: whether
the probation limitation for violent offenders contained in KRS 533.010(2)
applies to youthful offenders sentenced after they reach the age of majority? As
explained below, we now hold, consistent with our holdings in Merriman,
Buckner, and Edwards, that considering “statutory interpretation, logic, and
belief in the good sense of the legislature,”79 the violent offender statute is not
applicable to youthful offenders who are convicted or sentenced after they
reach the age of majority.
In Merriman v. Commonwealth, we held that the violent offender statute
cannot be used to render youthful offenders ineligible for probation because
the youthful-offender sentencing scheme contained in KRS 640.030
contemplates that the offenders will be brought back to court for “resentencing”
upon reaching age eighteen.80 In Merriman, two youthful offenders were
convicted of the crimes charged, committed to the Department of Juvenile
Justice in accordance with KRS 640.030(2), and thereafter brought back to the
79 Merriman, 265 S.W.3d at 201.
80 Id. at 198–201.
32
trial court for resentencing once they reached the age of majority.81 In
determining whether the violent-offender statute should have been applied to
render the respective offenders ineligible for probation at their resentencing
hearings, we reviewed relevant provisions of Kentucky’s Juvenile Code.
We explained in Merriman that Kentucky’s Juvenile Code was enacted to
provide rules for treatment of individuals who commit crimes before they reach
the age of majority and discussed multiple provisions contained in KRS
Chapter 640 that apply to youthful offenders who are transferred to the Circuit
Court to be tried as an adult.82 The Court placed emphasis on the resentencing
scheme required when a juvenile who has been tried and sentenced as an
adult:
to be housed in a juvenile detention facility until his sentence expired,
he was probated or paroled, or he reached his 18th birthday. If the
juvenile turned 18 before expiration, probation, or parole, then the
sentencing court had to make further adjudications, which in
common parlance came to be called “resentencing.” In fact, the length
and all other conditions of the Youthful Offender's sentence remain
the same except for whatever statutory determinations the trial court
makes at that review. The court's options at that point are to place the
Youthful Offender on probation or conditional discharge, incarcerate
him in adult prison, or return him to the Department of Juvenile
Justice to complete a treatment program of up to five months. Under
the latter option, the youthful offender again returns to the court after
completing a treatment program for it to determine whether to
probate, conditionally discharge, or incarcerate.83
81 Id. at 197–98.
82 Id. at 198–201. The Merriman court also noted that KRS Chapter 640 must
be read with the legislature’s intent in mind: “[P]romoting protection of children”; that
“[a]ny child . . . under KRS Chapters 600 to 645 . . . shall have a right to treatment
reasonably calculated to bring about an improvement in his condition”; “providing
each child a safe and nurturing home”; and that “all parties are assured prompt and
fair hearings,” plus other specific intentions.” Id. at 199 (citing KRS 600.010).
83 Id. at 198–99 (explaining KRS 640.030 (1–3)).
33
Based on the language of KRS 640.030(2), we held that the violent
offender statute “cannot act to prevent consideration of probation or
conditional discharge on the youthful offender's 18th birthday.”84
A short time after Merriman was decided, in Buckner, an unpublished
opinion, this Court relied on Merriman to find that a defendant who was
charged and convicted for crimes committed when he was seventeen years old
was not subject to the violent offender statute and held that he was entitled to
a new sentencing hearing “in accordance with KRS 640.030 and Merriman.”85
And then in Edwards we considered Merriman to determine “whether youthful
offenders who are convicted and sentenced in circuit court can also be
classified as violent offenders subject to the parole-eligibility restrictions
imposed by Kentucky's Violent Offender Statute.”86 In Edwards we found that
Merriman “does not extend to the parole limitations of the Violent Offender
Statute because of the difference between probation and parole” and because
the General Assembly explicitly intended for the violent offender statute’s
parole restrictions to apply to certain youthful offenders.87
We acknowledge that there are several factual differences between
Merriman and Thomas’s case, and that the “resentencing” scheme in KRS
640.030(2) does not apply in the same way to Thomas’s case as it did to the
defendants in Merriman. Thomas is considered a youthful offender under KRS
84 Id. at 200.
85 2008 WL 5051578 at *1, *12.
86 391 S.W.3d at 756.
87 Id. at 756, 758–60.
34
600.020(72) for the purposes of underlying charges and was transferred to the
circuit court to be tried as an adult.88 But Thomas was nineteen years old
when he entered his guilty pleas and was sentenced. Unlike the defendants in
Merriman, he was not transferred to the Department of Juvenile Justice to
await resentencing under KRS 640.030(2). This does not mean that Merriman
is inapplicable here. In fact, we ruled in Buckner that a defendant in
circumstances very similar to Thomas’s was entitled to resentencing and
probation consideration under Merriman and later cited Merriman in support of
its statement in Edwards that “[a]lthough the legislature did not intend the
probation constraints on violent offenders to apply to youthful offenders, it did
intend to subject youthful offenders to the parole restrictions of the Violent
Offender Statute.” As such, we must determine whether the violent offender
statute is applicable to youthful offenders like Thomas who were sentenced
after they reached the age of majority.
There are other subsections of KRS 640.030, as well as other provisions
of KRS Chapter 640 that were not relevant in Merriman that indicate that the
legislature intended for probation to be available as a sentencing option for
youthful offenders, even when such offenders qualify as a violent offender and
are sentenced after they reach the age of majority. Again, under KRS
640.030(2), when a youthful offender reaches the age of majority and is
returned to the trial court for resentencing, “the length and all other conditions
88 KRS 600.020(72) defines a “youthful offender” as “any person regardless of
age, transferred to Circuit Court under the provisions of KRS Chapter 635 or 640 and
who is subsequently convicted in Circuit Court.”
35
of the Youthful Offender's sentence remain the same except for whatever
statutory determinations the trial court makes at that review.” The
“determinations” available for youthful offenders who reach the age of majority
are “to place the Youthful Offender on probation or conditional discharge,
incarcerate him in adult prison, or return him to the Department of Juvenile
Justice to complete a treatment program of up to five months.” KRS 630.030(3)
provides that those youthful offenders who have “attained the age of eighteen
(18) years but less than eighteen (18) years and five (5) months prior to
sentencing” shall also be returned for resentencing when they are eighteen
years and five months old, and the trial court is again directed to make the
same “determinations,” including whether the defendant is a good candidate
for probation.89
Also, KRS 640.075(1) provides that youthful offenders who were
committed to the Department of Corrections under KRS 640.030(2)(c) may,
until age twenty-one, remain in the custody of the Department of Juvenile
Justice under some circumstances. KRS 640.075(4) then provides that the
“youthful offender whose custody has been retained under subsection (1) of
this
89 KRS 640.030(3) (explaining that the youthful offender who was sentenced
after he turned 18 “shall be returned to the sentencing court upon attaining the age of
eighteen (18) years and five (5) months if that individual has been sentenced to a
period of placement or treatment with the Department of Juvenile Justice. The court
shall have the same dispositional options as currently provided in subsection (2)(a)
and (c) of this section[]”). Again, the determinations to be made by the sentencing
court under KRS 640.030(2)(a) & (c) are “[w]hether the youthful offender shall be
placed on probation or conditional discharge[]” or “[w]hether the youthful offender
shall be incarcerated in an institution operated by the Department of Corrections[.]”
36
section . . . may, on one (1) occasion and after the completion of a minimum
twelve (12) months additional service of sentence, petition the sentencing
Circuit Court for reconsideration of probation and, except as provided in KRS
439.3401, may be considered for early parole eligibility.”
While it is true that the clear mandates of the resentencing scheme
provided under KRS 640.030 would not be frustrated to the same extent as it
would have been by an alternate holding in Merriman if this Court were to rule
that the violent offender statute does apply to youthful offenders such as
Thomas, we still think that the General Assembly intended for trial courts to
consider whether youthful offenders are viable candidates for probation even if
such individuals qualify as violent offenders.
First, as seen above, there are multiple provisions of KRS Chapter 640
that provide for trial courts that are sentencing youthful offenders to consider
probation as a sentencing option. Nowhere in the Juvenile Code does the
General Assembly place a limit on this option based on the violent offender
statute. In contrast, the General Assembly explicitly states that the limitations
provided under the violent offender statute do apply to youthful offenders’
parole eligibility. While this citation to the violent offender statute is not
determinative, it does indicate that the General Assembly was cognizant of the
potential applicability of the violent offender statute to certain provisions of the
Juvenile Code and chose not to provide that the violent offender statute applies
to youthful offenders’ probation eligibility, even after this Court’s rulings in
Merriman, Buckner, and Edwards.
37
Second, even though Thomas, because he was over the age of eighteen
years and five months at the time he was initially sentenced, was not first
committed to the Department of Juvenile Justice and then brought back for
resentencing in accordance with KRS 640.030(1) or (3), he was sentenced as a
youthful offender in the first instance. While the language of KRS 640.030(3)
does contemplate the return of a defendant for resentencing, it also directs,
without exception, for trial courts to make the same “determinations” provided
under (2)(a) & (c), including whether the defendant is a good candidate for
probation. It seems to us illogical to assume that because a youthful offender
was age eighteen years and five months, or older, and thus was not committed
to the Department of Juvenile Justice under KRS 640.030(1) or (3) in the first
instance, that he is not entitled to the same probation consideration that is
guaranteed to a youthful offender who was sentenced before he reached age
eighteen years and five months.
Finally, this holding seems to best represent the intent of the General
Assembly in enacting the Juvenile Code. KRS 600.010(2)(a) provides, in part,
that “KRS Chapters 600 to 645 shall be interpreted to effectuate the . . .
express legislative purposes[, including that] [t]he Commonwealth shall direct
its efforts to promoting protection of children[.]” Similar to the consequences of
an alternate holding discussed in the previous paragraph, it also seems to us
illogical to hold that this Court’s decision in Merriman was correctly made in
light of this purpose, but this purpose would not be equally served by entitling
those youthful offenders who are sentenced after they reach age eighteen years
and five months the same protection provided in Merriman. Also, KRS
38
600.010(2)(f) further provides that “KRS Chapter 640 shall be interpreted to
promote public safety and the concept that every child be held accountable for
his or her conduct through the use of restitution, reparation, and sanctions, in
an effort to rehabilitate delinquent youth.” We emphasize that today we merely
hold that trial courts must consider probation for youthful offenders who also
qualify as violent offenders before committing them to the Department of
Corrections. This Court’s current holding does not undermine the trial court’s
ample discretion to hold youthful offenders fully accountable for their actions
but simply provides for an additional avenue for rehabilitating delinquent
youth.
Outcome: In sum, we hold that Kentucky’s Juvenile Code and this Court’s holdings
in Merriman, Buckner, and Edwards support the conclusion that the violent
offender statute is not applicable to youthful offenders for purposes of
consideration of probation, even if they are sentenced after they reach age
eighteen years and five months. Because the trial court here sentenced Thomas
to a term of imprisonment under the assumption that Thomas was ineligible
for probation, the trial court erred in failing to consider whether probation or
other forms of conditional discharge as possible alternatives. So, we are
constrained to vacate the judgment in this case and remand to the trial court
once again to resentence Thomas in accordance with this opinion.
Plaintiff's Experts:
Defendant's Experts:
Comments: