Lee v. Commonwealth
| Decision Date | 14 December 2018 |
| Docket Number | NO. 2017-CA-001225-MR,2017-CA-001225-MR |
| Parties | JOHN D. LEE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM NELSON CIRCUIT COURT
Following an investigation into alleged thefts of money from his aunt, for whom he had a power of attorney, Lee was indicted on charges of knowing exploitation of an adult, over $300, and theft by unlawful taking, over $10,000 but less than $1,000,000. As the result of a mediation, the Commonwealth agreed to dismiss the first charge, to amend the second charge to theft by unlawful taking, over $500 but less than $10,000, and to recommend pretrial diversion for a period of one year or until restitution is paid. Lee claims that the Commonwealth agreed to change the pretrial diversion condition of no new offenses to a condition requiring a new conviction prior to revocation, not simply arrest. Though this condition was provided for in the Commonwealth's offer on a plea of guilty, it does not appear in the motion for pretrial diversion submitted to the trial court or in the trial court's order granting pretrial diversion of a Class D felony.1 On May 20, 2015, the trial court entered a judgment in accordance with the Commonwealth's recommendation as it appeared on the motion for pretrial diversion.
Thereafter, allegations were made in Jefferson County that Lee had been repeatedly violating a no-contact order, and the Nelson Circuit Court ordered Lee to appear before the court to show cause why his pretrial diversion agreementshould not be voided. A hearing was held, which resulted in the court voiding Lee's pretrial diversion agreement based on evidence that Lee was harassing his ex-girlfriend and that he had violated an emergency protection order (EPO) issued in Jefferson County. At the time of the hearing, there had not been any convictions based on these allegations. This appeal followed.
At the outset of our review, we note that Lee has failed to include any part of the video record, including a recording of the plea colloquy, revocation hearing, or sentencing, in the appellate record. Pursuant to Kentucky Rules of Civil Procedure (CR) 75.07(5), the onus falls on the appellant or the appellant's counsel to ensure that the record is accurately prepared and certified to this Court. See also Fanelli v. Commonwealth, 423 S.W.2d 255, 257-58 (Ky. 1968). Kentucky jurisprudence has long held that "when the complete record is not before the appellate court, that court must assume that the omitted record supports the decision of the trial court." Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985). As the Commonwealth correctly argues, we are constrained to follow this rule of law here.
Lee's arguments on appeal can best be summarized as follows: (1) the trial court erred by failing to advise Lee pursuant to Kentucky Rules of Criminal Procedure (RCr) 8.10 when it disregarded the plea agreement; and (2) the trial court abused its discretion in revoking his pretrial diversion withoutcomplying with Kentucky Revised Statute (KRS) 439.3106 and Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014).
First, Lee claims that the trial court failed to follow the plea agreement and before doing so the trial court was required to inform Lee of this on the record and give Lee the opportunity to withdraw the plea, in accordance with RCr 8.10. In addition to arguing that we must assume in favor of the trial court when we do not have the complete record, the Commonwealth claims that Lee is precluded from making this argument because it is not preserved for review. While Lee contends this issue was preserved "by the express terms of the Commonwealth's Offer on a Plea of Guilty and Motion for Pretrial Diversion, and by [his] Motion to Extend the Term of Diversion and Motion for Probation," nowhere in any of these documents does Lee raise an RCr 8.10 violation. Therefore, this issue was not preserved for appellate review and we will not consider it. Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976), overruled on other grounds by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010).
Second, Lee claims that the trial court erred in voiding his pretrial diversion agreement and denying probation by failing to comply with KRS 439.3106 and Andrews. In determining whether to void a pretrial diversion agreement, "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." KRS 533.256(2). The standard of review for a decision to revoke probation is whether the trial court abused its discretion. Commonwealth v. Lopez, 292 S.W.3d 878, 881 (Ky. 2009). This requires us to determine whether "the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Pursuant to KRS 439.3106, the trial court is required to make two findings of fact prior to revoking a defendant's probation, or in this case, voiding a defendant's pretrial diversion. KRS 439.3106 provides as follows:
Accordingly, probation can only be revoked after finding that the defendant's failure to abide by the probation conditions constitutes a significantrisk and the defendant cannot be safely managed in the community. The court retains its broad discretion in matters of probation, but according to Andrews, such discretion must be "exercised consistent with statutory criteria." 448 S.W.3d at 780. The court is required to make explicit findings as to each element, either orally on the record or in the court's written order. Lainhart v. Commonwealth, 534 S.W.3d 234, 238 (Ky. App. 2017).
Here, the trial court's written order voiding Lee's pretrial diversion agreement consists of notes made on the docket sheet during the hearing and the final judgment of conviction entered on June 23, 2017. The notes on the docket sheet state that Lee has violated his pretrial diversion agreement by harassing his ex-girlfriend and by violating an EPO from Jefferson County. The final judgment of conviction marked that probation was denied because it would unduly depreciate the seriousness of Lee's crime. This is the extent of the trial court's findings available to this Court. Because the video record of the hearing and sentencing was not provided, we must assume that the trial court made the requisite findings to support its decision to void Lee's pretrial diversion agreement and to deny probation. Thus, the trial court did not err in voiding the pretrial diversion agreement or denying probation.
Based on the foregoing, the order of the Nelson Circuit Court is affirmed.
IN ALL ASPECTS BUT FILES SEPARATE OPINION.
AND FILES SEPARATE OPINION.
The "function of the Court of Appeals is to review possible errors made by the trial court[.]" Matthews v. Commonwealth, 371 S.W.3d 743, 753 (Ky. App. 2011) (quoting Kaplon v. Chase, 690 S.W.2d 761, 763 (Ky. App. 1985)). The dissent is appealing, even persuasive, on some level. I agree especially with the dissent's apparent embrace of the principle that "each time we do not strictly apply the rules we erode them." Gambrel v. Gambrel, 501 S.W.3d 900, 902 (Ky. App. 2016). Still, nothing in the dissent points to any error by the trial court.
On the other hand, what this Court said next in Gambrel applies here:
We certainly hope this case serves as a warning to practitioners to carefully read and follow CR 98 to avoid missteps on behalf of their clients and to ensure a complete record—containing all relevant videos, CDs and DVDs—is certified to the appellate court. Additionally, we strongly encourage the Supreme Court of Kentucky to clarify this apparently grey area which predominantly occurs in family court practice to revise CR 98 to specify hearings resulting in a final determination (DVO, Dependency, Neglect and Abuse—DNA, Termination of Parental Rights—TPR, etc.) must be designated by the appellant to be included in the record on appeal, or circuit clerks must certify such hearings as part of the record automatically.
Id. The good...
To continue reading
Request your trial