McClanahan v. Com.
| Decision Date | 22 April 2010 |
| Docket Number | No. 2008-SC-000033-MR.,2008-SC-000033-MR. |
| Citation | 308 SW 3d 694 |
| Parties | Raymond McCLANAHAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Daniel T. Goyette, Louisville Metro Public Defender, Bruce P. Hackett, Deputy Appellate Defender, Office of the Louisville Metro Public Defender, Louisville, KY, Counsel for Appellant.
Jack Conway, Attorney General, Kenneth Wayne Riggs, Assistant Attorney General, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.
Appellant, Raymond McClanahan, stands convicted of one count of second-degree robbery, four counts of third-degree burglary, and one count of theft (over $300). He was sentenced to a term of imprisonment of thirty-five years after pleading pursuant to an unusual plea agreement. It is to that plea agreement and the manner in which the sentence was imposed that the attention of this Court has been directed. Because the sentence exceeds twenty years, the appeal is to this Court as a matter of right. Ky. Const. § 110(2)(b).
Because we conclude that Appellant's sentence exceeds the maximum legal punishment allowable under the circumstances of this case, and we agree that the statutes and rules governing the imposition of the sentence were not properly observed, we reverse and remand this matter for further proceedings consistent with this opinion.
Appellant appeared before the Jefferson Circuit Court, along with several co-defendants, charged under three indictments. Indictment 06-CR-1910 charged Appellant with one count of criminal syndication, two counts of third-degree burglary, and two counts of theft by unlawful taking over $300. Indictment 06-CR-2479 charged him with one count of third-degree burglary.1 Indictment 06-CR-3335 charged him with one count of second-degree robbery. The facts underlying the crimes for which Appellant was convicted are not germane to this appeal and have not been discussed in the briefs.
Appellant entered into a set of plea agreements with the Commonwealth to resolve all three indictments. Under Indictment 06-CR-1910, he agreed to plead guilty to two counts of third-degree burglary and one count of theft by unlawful taking (over $300). Under Indictment 06-CR-2479, he agreed to plead guilty to one count of third-degree burglary. He also agreed to plead guilty to second-degree robbery as charged in Indictment 06-CR-3335. In return, the Commonwealth agreed to recommend a total sentence of ten years in prison for all the charges, and would object to probation.
Because Appellant wanted to be released from jail pending sentencing so that he could tend to his family's needs but was unable to post the required bail, the Commonwealth agreed that Appellant could be released on his own recognizance, provided that he agreed to what the trial court and the parties in this case referred to as a "hammer clause." A "hammer clause" is a provision of a plea agreement, apparently used in some locales, that allows a defendant to be released on his own recognizance pending sentencing. Ordinarily, the likelihood of an additional prison sentence for a bail-jumping charge provides adequate incentive to assure that one released from custody without financial conditions will return to court when scheduled. A plea with a "hammer clause" differs by providing that, if a defendant fails to return to court for sentencing (or violates some other agreed-upon condition of release), the Commonwealth withdraws its original sentencing recommendation and the defendant agrees to serve a more severe sentence instead.
Each of Appellant's plea agreements included a "hammer clause." Thus, the Commonwealth would recommend a combination of consecutive and concurrent sentences that would result in a ten-year prison sentence as long as Appellant complied with the conditions of his release. However, if Appellant failed to appear for his sentencing hearing, failed to keep his appointment with the probation office for the production of his pre-sentence investigation (PSI), or was charged with any offense, Class B misdemeanor or greater, then instead of the ten-year sentence, he "agreed to serve a 40-year sentence" and to forfeit his right to seek probation or shock probation.2 The plea agreements did not specify how the individual sentences would be structured to achieve the forty-year term.
On August 24, 2007, Appellant appeared before the trial judge, who conducted the Boykin colloquy3 before accepting Appellant's guilty pleas. Appellant was clearly aware of all the terms of his plea agreement. Other details of that hearing are provided below. The case was assigned for final sentencing in October 2007 and Appellant was released on his own recognizance. He failed to appear for sentencing, and a bench warrant for his arrest was issued.
Appellant was arrested on the warrant and was brought before the court for sentencing in December 2007. In the meantime, it was learned that four misdemeanor bad check charges had been placed against him since the entry of his guilty plea. At the hearing, Appellant moved to withdraw his guilty pleas and requested a continuance so that he could present evidence to show that when he pled guilty his judgment was impaired by the prescription medications he was taking for a psychiatric condition. He argued alternatively that the "hammer clause" should not be invoked and requested an opportunity to present evidence to explain his failure to appear and the intervening bad check charges. The trial court denied his motions and proceeded forthwith to impose the sentence, noting that Appellant's violations had activated the "hammer clause" of the plea agreement. However, as the judge began to impose the forty-year sentence, she discovered that the sentences for the individual charges reflected in the guilty plea judgments added up to only thirty-five years. She then fixed his sentence at a thirty-five year sentence,4 and entered final judgments accordingly.
Appellant raised several issues on appeal. First, he argues that before suffering the enhanced sentence of a "hammer clause," he was entitled to a jury trial on the factual issues that triggered the enhancement. He relies upon Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which holds that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and be proved beyond a reasonable doubt."5 Next, he claims that the trial court improperly interpreted the plea agreement as imposing strict liability for any breach of the conditions of release, and thus allowed him no opportunity to show justification for his lack of compliance. Third, he argues that by pre-judging the sentence that would be imposed, the trial court failed to exercise independent discretion required by the applicable statutes for the "meaningful" sentencing hearing. Finally, he argues that the trial court abused its discretion when it denied his motion to withdraw from the guilty plea and when it denied his motion for a continuance to obtain evidence in support of his motion. We reverse Appellant's convictions because the plea agreement with the "hammer clause" resulted in the imposition of an unlawful sentence, and because we agree with Appellant's argument that in the acceptance of the plea and imposition of the sentence, the trial judge did not exercise the independent discretion required for compliance with the requirements of KRS 533.010(1), 533.010(2), KRS 532.050(1), KRS 532.110(1) and RCr 11.02. Accordingly, we decline to address the remaining issues raised by Appellant.
This case draws the attention of this Court to the plea agreement concept referred to above as a "hammer clause." In Jones v. Commonwealth, 995 S.W.2d 363 (Ky.1999), we upheld a similarly structured plea agreement. While both parties acknowledge the Jones holding, and neither party challenges the validity of the "hammer clause" concept, Appellant challenges the procedure by which the "hammer" provision in this case was activated, and the thirty-five year sentence that was imposed. The Commonwealth urges this Court to uphold Appellant's sentence on the basis that, having agreed to serve a forty-year prison sentence if he violated the conditions of his release, Appellant simply "got what he bargained for," citing Myers v. Commonwealth, 42 S.W.3d 594, 597 (Ky.2001) for the principle that a defendant in a criminal action may waive the statutory maximum sentence and agree to a sentence beyond the legal range of punishment. See also Johnson v. Commonwealth, 90 S.W.3d 39, 44 (Ky.2002). We reject the Commonwealth's argument, and in so doing we conclude that our analysis in Myers was flawed, warranting its reconsideration. Appellant's thirty-five year sentence exceeded the lawful range of punishment established by the General Assembly, and whether agreed upon or not, the trial court's imposition of such a sentence is a violation of the separation of powers doctrine embodied in Sections 27 and 28 of the Kentucky Constitution, and is an abuse of discretion.
First, we note that our decision in Jones, 995 S.W.2d 363, provides no support for the "hammer clause" now before this Court. Jones was a case of first impression in which we upheld a plea agreement which called for a sentence of six years' imprisonment with the proviso that if the defendant (Jones) failed to appear in court for sentencing, the Commonwealth would instead recommend a twenty-year sentence. Jones failed to appear for sentencing, and when he was eventually brought before the court for sentencing, the court imposed the twenty-year sentence as recommended by the Commonwealth. Guided by the decisions of federal courts in United States v. David, 58 F.3d 113 (4th Cir.1995); United States v. Rivera, 954 F.2d...
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Strunk v. Commonwealth
...in 2010, the Kentucky Supreme Court reversed course and overruled these cases in McClanahan v. Commonwealth, 308 S.W.3d 694 (Ky. 2010). In McClanahan, the Court reasoned that "plea agreements in criminal cases are contracts between the accused and the Commonwealth and are interpreted accord......