Rouse v. Commonwealth
| Decision Date | 19 November 2012 |
| Docket Number | NO. 2009-CA-001939-MR,NO. 2010-CA-000447-MR,2009-CA-001939-MR,2010-CA-000447-MR |
| Parties | TIMOTHY DAWAYNE ROUSE, JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE AND TIMOTHY D. ROUSE, JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM LYON CIRCUIT COURT
On August 4, 2008, Appellant was indicted on four counts of second-degree forgery and one count of attempted escape. The charges stemmed from incidents that occurred while Appellant was imprisoned at the Kentucky State Penitentiary. On September 25, 2009, Appellant filed a pro se "motion and affidavits to enter a plea of guilty open," in which he moved to enter a guilty plea and asked the trial court for a lesser sentence than the recommended five-year sentence offered by the Commonwealth. He claimed that a lesser sentence was merited because he had committed the subject offenses in an effort to escape sexual abuse that was allegedly being committed against him at the prison.
On October 2, 2009, Appellant - this time with the assistance of counsel - filed a motion to enter a guilty plea as to all charges. In exchange for Appellant's plea, the Commonwealth agreed to recommend a five-year sentence on each count, all to be served concurrently with one another but consecutively to the sentence Appellant was already serving.2
On that same day, per his own request, Appellant appeared before the trial court for both a hearing on his motion to enter a guilty plea and a sentencing hearing. We note that holding a hearing on a motion to enter guilty plea and a sentencing hearing on the same day is generally frowned upon. See Matheny v. Commonwealth, 37 S.W.3d 756, 759 (Ky. 2001); Misher v. Commonwealth, 576 S.W.2d 238, 241 (Ky. App. 1978). With this said, since Appellant requested that his case proceed in such a manner and he waived his right to a pre-sentence investigation report in order to speed along the process, we are not concerned about this particular fact.
However, for reasons left unclear by the record, before either hearing was held the trial court prepared a "final judgment and sentence on plea of guilty and waiver of pre-sentence report" finding Appellant guilty of the subject offenses and sentencing him in accordance with the Commonwealth's recommendation. Moreover, this judgment was signed as "HAVE SEEN" by counsel for both parties and by Appellant - again, before the hearings. Notably, this judgment contained apassage setting forth that the trial court had considered and rejected probation because a risk existed that: (1) Appellant would commit another crime while on probation; (2) Appellant was in need of correctional treatment; and (3) probation would unduly depreciate the seriousness of Appellant's offenses.
During the ensuing sentencing hearing, the trial judge advised Appellant: "And you understand that in your current situation, you're not going to be probated[?]" to which Appellant nodded affirmatively. No effort was made by Appellant or his counsel to challenge this determination. The trial judge then told Appellant:
You have asked me to sentence you differently from what the Commonwealth has recommended to you and, as before, you've written a compelling letter or motion and you obviously have a good ability to express yourself in writing. But, from my standpoint, I'm not the prosecutor in the case, and - selfishly - I have enough to do in making the decision that I have to make that I'm not going to deviate from what the prosecutor has recommended in your case. Whether I agree or disagree is not really relevant - it's the agreement that the parties reached. And so I'm going to sentence you consistent with the plea agreement to five years on each of those Class D felonies[.]
This appeal followed.
On appeal, Appellant argues that he is entitled to a new sentencing hearing because the trial court failed to follow mandatory sentencing procedures and to give due consideration to probation or to any mitigating evidence before sentencing him.3 Appellant particularly contends that the court did not hold a"meaningful" sentencing hearing since it had prepared its final judgment denying probation prior to the hearing.
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." The trial court may impose a sentence of imprisonment (with exceptions not applicable here) only "after due consideration of the nature and circumstances of the crime and the history, character, and condition of the defendant[.]" Id. RCr 11.02(1) additionally requires the court to "consider the possibility of probation or conditional discharge and [to] afford the defendant and the defendant's counsel an opportunity to make a statement or statements in the defendant's behalf and to present any information in mitigation of punishment." Accordingly, KRS Chapter 533 and RCr 11.02 (along with KRS Chapter 532, where applicable) allow a trial judge to impose a sentence in a felony case "only after due consideration of ... all relevant [sentencing] factors." McClanahan v. Commonwealth, 308 S.W.3d 694, 703 (Ky. 2010).
Appellant also relies upon the decision of the Supreme Court of Kentucky in Edmonson v. Commonwealth, 725 S.W.2d 595 (Ky. 1987). In Edmonson, the Supreme Court reversed a final judgment in a criminal case where the defendant had pled guilty because the trial court had prepared its final judgment before the sentencing hearing was conducted. This judgment included a resolution of the question of whether the defendant's sentences would runconcurrently or consecutively - a matter that was debated at the sentencing hearing. The Court explained its decision as follows:
The record is clear that the trial judge prepared the final judgment prior to the sentencing hearing. By order settling the record on appeal, the trial judge disclosed that the document passed over the Bench to counsel immediately after the sentence was pronounced was the final and completed judgment. From this, we must conclude that the trial judge had either made up her mind as to the sentence which would be imposed, or she had tentatively decided what sentence to impose unless the defendant came forward with some compelling reason for leniency. KRS 532.110(1) grants the trial court discretion to impose concurrent or consecutive sentences. However, such discretion must be exercised only after the defendant has had a fair opportunity to present evidence at a meaningful hearing in favor of having the sentences run concurrently or present other matters in mitigation of punishment. The statutes [KRS 532.110 and 533.010] and rule [RCr 11.02] are not mere procedural formalities, but are substantive and may not be ignored.
Based on this law, Appellant argues that a new sentencing hearing is required because the trial court clearly determined that it would not probate Appellant's sentence before a sentencing hearing - or even a hearing on Appellant's motion to enter guilty plea - was held. In most circumstances, we would agree. However, for a number of reasons, this case is rather unusual and requires a different outcome.
First, it is apparent from the record of the sentencing hearing that Appellant requested that the proceedings go forth in an expedited fashion. Hewaived any reliance on a pre-sentence investigation report and took the unusual step of having the trial court conduct a hearing on his motion to enter guilty plea and his sentencing hearing on the same day. Clearly, then, he wanted the matter to be resolved as quickly as possible. Moreover, Appellant was made privy to what the trial court's judgment and sentence would be before the hearing - again, an unusual circumstance - and apparently signed off on such.
Standing alone, the aforementioned facts likely would not be enough to remove the need for a sentencing hearing. However, when coupled with the record's reflection that Appellant was ultimately able to make his case for a reduced punishment and that the mitigating information offered by Appellant was considered by the trial court, we conclude that the need for such a hearing was obviated. As noted above, Appellant requested a lesser sentence than that offered by the Commonwealth before filing his attorney-assisted motion to enter a guilty plea. In support of his request, he tendered affidavits setting forth the reasons for his request. During the sentencing hearing, the trial judge acknowledged Appellant's request but advised him that probation would be denied in this case in light of his "current situation," i.e., his imprisonment and extensive criminal history. Appellant made no effort to challenge this determination. While the trial court perhaps did not handle this situation in an ideal fashion, we are loathe to remand for a new hearing under these circumstances - particularly given that Appellant's lengthy criminal record makes the likelihood of probation remote at best.
We also note that the sentence imposed by the trial court was ultimately the same as the one Appellant had bargained for with the Commonwealth. Consequently, we fail to see any manifest injustice meriting a new hearing. Cf. Lewallen v. Commonwealth, 584 S.W.2d 748, 751 (Ky. App. 1979). In reaching this decision, we...
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