Flynt v. Com., 2000-SC-0587-MR.

• Decision Date: 22 May 2003
• Docket Number: No. 2000-SC-0399-TG.,No. 2000-SC-0587-MR.,2000-SC-0587-MR.,2000-SC-0399-TG.
• Citation: 105 S.W.3d 415
• Parties: Dustin M. FLYNT, Appellant, v. COMMONWEALTH of Kentucky, Real Party in Interest, and Gregory M. Bartlett, Judge, Kentucky Circuit Court, Appellee. and Commonwealth of Kentucky, Appellant, v. Jimmy Elliott, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 415

105 S.W.3d 415

Dustin M. FLYNT, Appellant, v. COMMONWEALTH of Kentucky, Real Party in Interest, and Gregory M. Bartlett, Judge, Kentucky Circuit Court, Appellee. and Commonwealth of Kentucky, Appellant, v. Jimmy Elliott, Appellee.

No. 2000-SC-0587-MR.

No. 2000-SC-0399-TG.

Supreme Court of Kentucky.

May 22, 2003.

H. Louis Sirkin, Jennifer M. Kinsley, Laura A. Abrams, Sirkin, Pinales, Mezibov & Schwartz, Cincinnati, OH, W. Robert Lotz, Jr., Covington, for Appellant, Dustin M. Flynt.

A.B. Chandler, III, Attorney General, Matthew D. Nelson, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, for Appellee, Commonwealth of Kentucky, Real Party in Interest.

Appellee, Gregory M. Bartlett, Judge, Kenton Circuit Court, Covington.

A.B. Chandler, III, Attorney General, Donald C. Buring, Kenton County Commonwealth Attorney, Covington, Matthew D. Nelson, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, for Appellant, Commonwealth of Kentucky.

Dennis Stutsman, Department of Public Advocacy, Appellate Branch Manager, Frankfort, for Appellee, Jimmy Elliott.

KELLER, Justice.

I. ISSUE

Because each of these two separate appeals presents an issue of first impression requiring us to interpret Kentucky's Pretrial Diversion statutes,¹ we have elected to address them in a single opinion. In accordance with KRS 533.250(1), Kenton Circuit Court submitted for this Court's approval a Class D Felony Pretrial Diversion Program, which we approved. Because KRS 533.250(2) provides that "[t]he Commonwealth's attorney shall make a recommendation upon each application for pretrial diversion to the Circuit Judge in the court where the case would be tried,"² Part III(c) of the diversion program adopted in Kenton County incorporated the statutory requirement by directing the Commonwealth "to make a written recommendation to the Court in response to each application within 7 days."³ In each of these two cases, the Commonwealth objected to the defendant's pretrial diversion application. In Flynt v. Bartlett, the Third Division of Kenton Circuit Court denied the defendant's application for pretrial diversion after concluding that it had no authority to grant the defendant's application over the Commonwealth's objection. In Commonwealth v. Elliott, however, the Second Division of Kenton Circuit Court held that it could order pretrial diversion without a favorable recommendation from the Commonwealth, and the court granted the defendant's application for pretrial diversion over the Commonwealth's objection. May a circuit court permit a defendant to participate in a pretrial diversion program over the Commonwealth's objection? After interpreting the relevant statutory authority in light of Kentucky's constitutional separation of powers principles, we conclude that the Commonwealth must give its consent before a circuit court has the authority to approve a defendant's application to participate in a pretrial diversion program.

II. STATUTORY, FACTUAL, AND PROCEDURAL BACKGROUND

The 1998 Kentucky General Assembly enacted statutory provisions governing the creation of pretrial diversion programs in Kentucky's circuit courts. KRS 533.250 outlines the eligibility requirements and required features of all such programs:

(1) A pretrial diversion program shall be operated in each judicial circuit. The chief judge of each judicial circuit, in cooperation with the Commonwealth's Attorney, shall submit a plan for the pretrial diversion program to the Supreme Court for approval on or before December 1, 1999. 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.

(b) The program shall not be utilized for persons charged with offenses for which probation, parole, or conditional discharge is prohibited under KRS 532.045.

(c) No person shall be eligible for pretrial diversion more than once in a five (5) year period.

(d) Any person charged with an offense not specified as precluding a person from pretrial diversion under paragraph (b) of this subsection may apply in writing to the trial court and the Commonwealth's attorney for entry into a pretrial diversion program.

(e) Any person shall be required to enter an Alford plea or a plea of guilty as a condition of pretrial diversion.

(2) The Commonwealth's attorney shall make a recommendation upon each application for pretrial diversion to the Circuit Judge in the court in which the case would be tried. The court may approve or disapprove the diversion.

(3) The court shall assess a diversion supervision fee of a sufficient amount to defray all or part of the cost of participating in the diversion program. Unless the fee is waived by the court in the case of indigency, the fee shall be assessed against each person placed in the diversion program. The fee may be based upon ability to pay.⁴

Subsequent statutory provisions specify the criteria the Commonwealth attorney must consider in making his or her KRS 533250(2) recommendation as to a pretrial diversion application⁵ and supply additional detail by referencing other statutory provisions to govern the term of, supervising authority for, and availability of restitution within pretrial diversion programs.⁶ KRS 533258 clarifies the nature and significance of pretrial diversion — i.e., "that the legislature intends for a successful pretrial diversion to, in effect, wipe the slate clean as to those charges"⁷ — and states that, after successful completion of pretrial diversion, "the charges against the defendant shall be listed as `dismissed-diverted' and shall not constitute a criminal conviction."⁸ If, however, the defendant does not successfully complete pretrial diversion, KRS 533.256 contemplates that the trial court will enter final judgment in accordance with the defendant's guilty plea.⁹ Finally, KRS 533.262 reflects the General Assembly's determination that, although the district courts may employ other pretrial diversion programs,¹⁰ the pretrial diversion program authorized in the earlier statutory provisions "shall be the sole program utilized in the Circuit Courts of the Commonwealth except for drug court diversion as approved by the Supreme Court and the Department of Corrections."¹¹

The Kenton Circuit Court Pretrial Diversion Program, which was adopted pursuant to, and thus substantially mirrors, the above-described statutory authority, sets out procedures governing applications for pretrial diversion in Kenton Circuit Court:

III. Procedure

A. As soon as possible after indictment in circuit court, and no later than 14 days after arraignment, except for good cause shown, any person eligible for the program may apply in writing to the Circuit Court and the Commonwealth for entry of a pretrial diversion order.

[Last minute filing of an application for diversion may cause delay in the scheduled trial for the case and should be avoided.]

B. In applying for pretrial diversion, counsel for the defendant must state, and the defendant must agree on the record, in the event diversion is granted, any right to a speedy trial or disposition of the charge against him/ her is waived. The waiver must accompany the written request for diversion.

C. The Commonwealth shall make a written recommendation to the Court in response to each application within 7 days.

D. Before making a recommendation to the Court, the Commonwealth shall:

1. Have a criminal record check made by telephoning Pretrial Services at AOC ....

2. Interview and seek input from the victim and/or victim's family and advise them of the time, date, and place the motion will be heard by the Court; and

3. When diversion is recommended, the Commonwealth must make written recommendations to the Court of conditions for the pretrial diversion as well as the appropriate sentence to be imposed if the diversion agreement is unsuccessful.

[The Commonwealth will be bound by its recommendation. In the event diversion is unsuccessful, the Commonwealth will not be permitted to argue for a sentence in excess of the original recommendation. Moreover, the Court cannot impose a sentence greater than the recommendation without first allowing the defendant the opportunity to withdraw the plea.]

[The Commonwealth is statutorily required to make a recommendation, whether favorable or unfavorable on every application. The circuit court cannot act on a request for diversion absent a recommendation from the prosecutor. DUE TO CONSTITUTIONAL CONSIDERATIONS, IT IS BELIEVED THAT DIVERSION IS UNAVAILABLE ABSENT A FAVORABLE RECOMMENDATION FROM THE COMMONWEALTH. It is recommended that the defense attorney simultaneously submit an application to the Circuit Court and to the prosecutor. The Commonwealth will then request the criminal record check, contact the victim, etc.; after charges are filed, AOC Form 347, styled MOTION FOR PRETRIAL DIVERSION OF A CLASS D FELONY, which contains the Commonwealth's recommendation, will be filed by the Commonwealth with the Circuit Court Clerk].¹²

The Kenton Circuit Court local rules further: (1) provide that "[t]he Court may, in its discretion, order pretrial diversion for eligible petitioners upon terms and conditions as it deems appropriate";¹³ (2) list both mandatory and discretionary conditions for pretrial diversion;¹⁴ (3) outline procedures for voiding the pretrial diversion order "upon a showing of failure to comply with the conditions of diversion or failure to make satisfactory progress";¹⁵ (4) provide that, "[i]f an...