Thomas v. Commonwealth, 082020 KYSC, 2018-SC-000437-MR

Docket Nº2018-SC-000437-MR
AttorneyCOUNSEL FOR APPELLANT: Kathleen Kallaher Schmidt Assistant Public Advocate COUNSEL FOR APPELLEE: Daniel Jay Cameron Attorney General of Kentucky Todd Dryden Ferguson Office of the Attorney General
Case DateAugust 20, 2020
CourtSupreme Court of Kentucky




No. 2018-SC-000437-MR

Supreme Court of Kentucky

August 20, 2020


COUNSEL FOR APPELLANT: Kathleen Kallaher Schmidt Assistant Public Advocate

COUNSEL FOR APPELLEE: Daniel Jay Cameron Attorney General of Kentucky Todd Dryden Ferguson Office of the Attorney General



Layw Thomas, a youthful offender, appeals to us as a matter of right1from the circuit court's judgment sentencing him to prison for life plus fifty years. At sentencing, the trial court found Thomas ineligible for consideration for probation, presumably because Thomas, who was nineteen years old when he pleaded guilty, stood convicted of serious crimes that would place him in the violent offender category and render him ineligible for probation. In this opinion, Thomas raises several issues in this appeal of which we find no merit. But we do find merit in a single issue and hold that the violent offender statute is inapplicable to youthful offenders for the purposes of the trial court's consideration of probation, even if the youthful offender has reached the age of majority at the time of sentencing. Consequently, the judgment is vacated, and the case returned to the trial court for resentencing consistent with this opinion.


A. Proceedings leading to the first judgment that was set aside by the Court of Appeals.

For crimes committed when he was seventeen years old, Thomas's charges were brought to the juvenile session of the district court, which transferred the charges to circuit court for Thomas's prosecution as a youthful offender under the provisions of KRS2 635.020(4). The charges wound up in two separate indictments in circuit court, and, by the time Thomas resolved the charges by entering guilty pleas under agreements with the Commonwealth, he was a nineteen-year-old adult.

In one indictment, in which he was represented by Eric Bearden, Thomas pleaded guilty to first-degree robbery, first-degree assault, second-degree assault, and wanton endangerment in exchange for a recommended twelve-year sentence. In the other indictment, in which Thomas was represented by William Aldred, Thomas entered an Alford plea[3] to murder for a recommended sentence of twenty years. This last plea agreement provided that the sentence would run concurrently with the sentence in the first-mentioned indictment. In short, the Commonwealth agreed to recommend all sentences to run concurrently for a total of twenty years' imprisonment.

Both plea agreements included a "hammer clause, "4 which stated the following: "Failure to appear at sentencing shall result in the Commonwealth moving to modify the sentence to the maximum sentence on all charge(s), to run consecutively, or to the maximum aggregate allowed by law." Neither plea agreement tallied the number of years a maximum prison sentence might contain.

At the plea colloquy conducted in the case involving the murder charge, the Commonwealth recommended a twenty-year sentence, denial of probation, and Thomas's release to remain at home wearing an electronic tagging device.[5]The trial court was also informed that Thomas was cooperating with the Commonwealth on matters beyond the scope Thomas's present charges. The trial court expressed reservations about the release terms offered to Thomas under the plea agreement but ultimately agreed.6 Thomas went on to answer all the questions asked by the judge during the Boykin[7] plea colloquy. Thomas confirmed that he understood the terms of the plea agreement, that he understood that he would be waiving certain constitutional rights by pleading guilty, that he was given no promises to receive a certain sentence if he pleaded guilty, and that he was satisfied with counsel's representation.8

The trial court accepted Thomas's plea, finding that it was entered willingly, freely, intelligently, and voluntarily. The court then told Thomas that he must cooperate with Probation and Parole and come back to court for sentencing or he would receive the maximum sentence on both charges, to run consecutively. The trial court did not explicitly state the number of years the maximum sentence would be if Thomas failed to appear. But it did admonish Thomas that he had "a lot riding on this" agreement, to which Thomas replied, "You don't have to worry about that." The Commonwealth also included a verbal warning that he was not to commit any new crimes while on home incarceration or it would move to amend the plea agreements to reflect the maximum sentences. This condition was not contained in either written plea agreement, but Thomas stated that he understood he was not to commit more crimes.

The trial court entered a home incarceration order, and Thomas was released with an electronic ankle monitor to live with his mother in Clarksville, Tennessee. Thomas later failed to appear for the final sentencing hearing. He cut off the ankle monitor and disappeared.

When Thomas eventually came before the trial court, his pleas for leniency were rejected and the hammer clause provisions were enforced by imposing a life sentence with the fifty-year sentence to run consecutively. In the judgment, the trial court specifically noted that it sentenced Thomas to "Imprisonment because . . . the defendant is not eligible for probation." The trial court did not state the basis for Thomas's ineligibility. The trial court specifically found that the maximum sentences were imposed on account of "defendant having failed to appear as ordered for previous sentencing hearing in violation of the plea agreement."9

After unsuccessful motions for post-conviction relief over the ensuing seven years, Thomas, acting pro se, filed a motion for relief under CR10 60.02 (d), (e) and (f), arguing that the trial court had improperly imposed the hammer clauses at sentencing. The trial court denied CR 60.02 relief without a hearing.

On appeal, the Court of Appeals found merit in Thomas's argument that the trial court erred in sentencing him under the hammer clauses. The Court of Appeals reversed the trial court's denial of CR 60.02 relief, vacated the judgment, and remanded the case, finding that the trial court "did not exercise its independent judgment as to the proper sentence to be imposed under the applicable statutory law and rules of criminal procedure." The Court of Appeals found that the trial court considered only Thomas's violation of the plea agreement and punished Thomas for that violation instead of imposing punishment for the underlying crimes.11 Accordingly, the Court of Appeals held that Thomas was entitled to have the judgment set aside under CR 60.02(f)12because the trial court erred under the substantive rules established in McClanahan v. Commonwealth13 and Knox v. Commonwealth14 when it did not consider whether the sentences imposed for the underlying crimes were appropriate considering all of the other factors required under RCr15 11.02, 16 KRS 532.050, [17] and KRS 533.010(2).18

B. Proceedings leading to the judgment under review by this Court.

On remand from the Court of Appeals, the trial court denied Thomas's motion for recusal, finding that there was nothing in the record that showed bias against Thomas or called into question the trial court's objectivity or impartiality. But the trial court held an evidentiary hearing on Thomas's motion to withdraw his guilty pleas and final sentencing.

During the evidentiary hearing on the motion to withdraw his guilty pleas, Aldred and Bearden, Thomas's attorneys in the prior prosecutions, Rebecca DiLoreto, Director for the Institute on Compassionate Justice, and Thomas himself testified.

Aldred testified about his conduct in representing Thomas before and during plea negotiations, Thomas's cooperation with law enforcement, 19 and his discussion of the hammer clauses with Thomas before signing the agreements.

Aldred, Thomas's retained counsel in the second indictment, testified that before negotiating the challenged plea, he conducted standard discovery, received all the evidence from the Commonwealth, visited the murder scene where he interviewed witnesses, and met with Thomas roughly fifteen times. Aldred stated that he did not collect Thomas's mental health or school records. Based on his investigation and review, Aldred concluded that Thomas could not succeed at trial. He began plea negotiations with the Commonwealth that included an offer to cooperate in other criminal investigations.20 Aldred did not remember verbatim his discussions with Thomas about the terms of the plea agreement, but he met with Thomas three to five times to discuss the plea agreement and Thomas's cooperation with police. Aldred admitted that Thomas met with the prosecutor and police without him and that it was Thomas who informed Aldred that the Commonwealth might allow him to be released to go home before final sentencing.

As for the discussion with Thomas about the hammer clauses, Aldred testified that these clauses are common in plea agreements in the jurisdiction where Thomas was prosecuted. Before Thomas accepted the plea bargain, Aldred explained to Thomas and his mother the nature of the hammer clause, including the potential consequences of violating it. Alfred also testified that he emphasized to Thomas that he was getting a favorable sentencing recommendation considering the gravity of the underlying charges and that if he failed to appear for sentencing or violated any other term of the agreement, he could go to prison for life. Aldred further testified that despite his youth, Thomas understood the plea agreements and the...

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