Knox v. Commonwealth, 2010–SC–000816–MR.

• Decision Date: 22 March 2012
• Docket Number: No. 2010–SC–000816–MR.,2010–SC–000816–MR.
• Citation: 361 S.W.3d 891
• Parties: Michael KNOX, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

361 S.W.3d 891

Michael KNOX, Appellant,

v.COMMONWEALTH of Kentucky, Appellee.

No. 2010–SC–000816–MR.

Supreme Court of Kentucky.

March 22, 2012.

Bruce P. Hackett, Chief Appellate Defender, Daniel T. Goyette, Louisville Metro Public Defender, Office of the Louisville Metro Public Defender, Public Defender Advocacy Plaza, Louisville, KY, for appellant.

Jack Conway, Attorney General, Susan Roncarti Lenz, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, KY, for appellee.

Opinion of the Court by Justice VENTERS.

Appellant, Michael Knox, entered pleas of guilty, pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to eight counts of second-degree robbery, for which he was sentenced to a total term of imprisonment of twenty-years. He now appeals that sentence as a matter of right. Ky. Const. § 110(2)(b). Knox argues that the trial court sentenced him without exercising independent judicial discretion in a manner very similar to the process we found unacceptable in McClanahan v. Commonwealth, 308 S.W.3d 694 (Ky.2010). Specifically, he contends that upon entry of his guilty plea, the trial court committed itself to the imposition of a specific sentence, and that upon final sentencing, the trial court failed to comply with KRS 532.050, RCr 11.02, and KRS 533.110(1) by imposing the sentence without considering the relevant facts and circumstances. We agree, and therefore we reverse his sentence and remand for a new sentencing hearing.

I. FACTUAL AND PROCEDURAL BACKGROUND

In exchange for Knox's guilty pleas, the Commonwealth agreed to recommend a sentence of ten years' imprisonment on each of eight counts of second degree robbery, to run concurrently, for a total of ten years. However, the plea agreement further provided that, until the sentencing hearing, Knox would be released on home incarceration subject to the conditions of a “hammer clause.” As used in this context, a hammer clause 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.

In this case, the hammer clause provided that if Knox failed to appear for final sentencing, incurred any new criminal charges, or violated the conditions of the home incarceration program, his sentence would be twenty years in prison, rather than ten years.¹ Among the conditions of home incarceration was the requirement that Knox abstain from the consumption of alcohol in any form, including medicinal solutions such as cough syrup and cold medications, and that he remain at his residence at all times, which would be monitored by a transmitter attached to his ankle.

As discussed below, we have concerns about the trial court's plea colloquy with Knox, but nonetheless, it adequately satisfied the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Thus, the convictions based upon Knox's guilty pleas are valid, and he does not suggest otherwise. Following the entry of his plea, a pre-sentence investigation was ordered pursuant to KRS 532.050(1) and a date for the sentencing hearing was set.²

Before the sentencing date, Knox's ankle monitor signaled that he was “out of range.” A few minutes later, a home incarceration officer telephoned Knox's home and spoke with Knox, who claimed he had not left the residence but had just been standing in the doorway.³ A few hours later, a home incarceration officer visited Knox's home and detected the odor of alcohol on Knox's breath, which the officer described as the smell of “old beer.” A portable breath test indicated Knox's blood alcohol content was .042%.⁴ Knox denied drinking any alcoholic beverages and accounted for the alcohol in his system by saying that he had taken Nyquil and Robitussin for a cold. He was then taken into custody.

Based on the alleged violations, at sentencing the Commonwealth recommended the twenty-year sentence pursuant to the hammer clause. Knox denied violating the conditions of his release but conceded that the consumption of alcohol, even in medicinal form, was banned under the home incarceration program. Knox asked the judge to consider the imposition of a sentence other than twenty years as called for under the hammer clause. From the evidence presented at a brief hearing, the trial court determined that Knox had violated the terms of the hammer clause by leaving his residence for nine minutes and by consuming enough alcohol, regardless of its source, to register a significant level on the breath tests. The judge noted that Knox had agreed to the hammer clause “and therefore, I am going to impose it.” The final judgment was entered accordingly.

II. THE TRIAL JUDGE ABUSED HIS DISCRETION BY COMMITTING TO THE IMPOSITION OF A SPECIFIC SENTENCE WITHOUT CONSIDERING THE PRESENTENCE REPORT AND WITHOUT MAKING A CASE–SPECIFIC DETERMINATION, FROM THE UNDERLYING FACTS AND CIRCUMSTANCES, THAT THE SENTENCE WAS APPROPRIATE FOR THE OFFENSES IN QUESTION

Knox argues that the trial judge abused his discretion by committing to the imposition of a sentence based solely on the hammer clause, and not upon information contained in the presentence report or upon a case-specific consideration of the circumstances of the crime and the history, character and condition of the defendant. Specifically, he contends that the judge used a sentencing method very similar to the process we found unacceptable in McClanahan, 308 S.W.3d 694.

In McClanahan, the defendant triggered a hammer clause in his plea agreement by violating the conditions governing his presentence release from custody. As a result, instead of a ten-year sentence, the trial court imposed a thirty-five-year sentence based upon the hammer clause. We reversed the sentence imposed in McClanahan for two reasons. First, the thirty-five-year sentence exceeded the maximum sentence authorized by statute, and was therefore illegal.⁵ Id. at 702. In addition, we determined that the trial court had failed to exercise independent discretion in setting the sentence, that it had imposed a sentence of imprisonment without giving due consideration to the contents of the presentence report as required by RCr 11.02 and KRS 532.050(1), and that it had imposed the sentence of imprisonment without considering “the nature and circumstances of the crime and the history, character and condition of the defendant” as required by KRS 533.010(2). ⁶ We reached that conclusion largely based upon the trial judge's statements while taking the guilty plea and during the final sentencing. Upon taking the plea, the judge issued a stern warning that she would impose the hammer clause's sentence if McClanahan failed to appear for final sentencing or otherwise violated the conditions of his release. McClanahan violated the conditions. At final sentencing, the judge disclaimed responsibility for the sentencing decision, stating:

“I didn't create the time [referring to the sentence] ... Mr. McClanahan, you made the choice and I'm giving you your choice.” McClanahan, 308 S.W.3d at 703. In reversing the sentence we stated “[b]y assuring Appellant upon acceptance of his guilty plea that should he violate the terms of his release, the full force of the hammer clause would be dropped upon him, the judge committed to the imposition of a specific sentence in a way that precluded true compliance with KRS 532.050(1), KRS 532.110(1), KRS 533.010(1) and (2), and RCr 11.02.”Id. at 704.

Here, the trial judge that took Knox's guilty plea and later imposed the sentence made precisely the same mistake, using words nearly identical to those we saw in McClanahan. Upon taking the plea, the judge told Knox that the hammer clause was a serious matter and that if any conditions of his release were violated, “your sentence is going to be twenty years to serve.” The judge reiterated, “The court is going to enforce the agreement if you violate [the conditions of release].” ⁷

This stated commitment to impose the hammer clause sentence upon any violation was echoed at the sentencing hearing. The judge characterized Knox's violations as “relatively minor” and admitted that he was “troubled by the hammer clause,” and noted, “this one is quite harsh.” However, when defense counsel requested that he consider some sentence other than the twenty-years called for in the hammer clause, the judge declined stating, “The court is most hesitant to get into the issue of negotiations on the plea agreement because ... I'm not going to at this time try to decide ... well, the amount of the hammer clause influence on the sentence that was agreed upon by the Commonwealth and the defendant in the first place, and how did it influence that at all, that sort of thing ... I'm just reluctant to do that.” He then reminded Knox that the hammer clause was “something, Mr. Knox, you agreed to, and therefore I am going to impose it.” ⁸ Without further comment, the judgment was entered.

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:

“imprisonment is necessary for protection of the public because: (a) There is substantial risk that during a period of probation or conditional discharge the defendant will commit another crime; (b) The defendant is in...