Zanders v. Commonwealth, 030119 KYCA, 2017-CA-001257-MR

Docket Nº:2017-CA-001257-MR
Opinion Judge:DIXON, JUDGE.
Party Name:MOREIAL LAMAUR ZANDERS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
Attorney:BRIEFS FOR APPELLANT: Shannon Dupree Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
Judge Panel:BEFORE: COMBS, DIXON, AND GOODWINE, JUDGES.
Case Date:March 01, 2019
Court:Court of Appeals of Kentucky
 
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MOREIAL LAMAUR ZANDERS APPELLANT

v.

COMMONWEALTH OF KENTUCKY APPELLEE

No. 2017-CA-001257-MR

Court of Appeals of Kentucky

March 1, 2019

APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE JAMES D. ISHMAEL, JR., JUDGE ACTION NO. 17-CR-00354

BRIEFS FOR APPELLANT: Shannon Dupree Frankfort, Kentucky

BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky

BEFORE: COMBS, DIXON, AND GOODWINE, JUDGES.

OPINION

DIXON, JUDGE.

Moreial Lamaur Zanders appeals from the Fayette Circuit Court's order setting aside his felony diversion entered on July 17, 2017. Upon careful review, we vacate and remand.

The underlying events leading to Zanders's conviction are not at issue. On April 4, 2017, a Fayette County grand jury indicted Zanders on charges of fleeing or evading police, first degree, in a motor vehicle;1 wanton endangerment, first degree;2 driving with a DUI suspended license, second offense;3 disregarding a traffic control device;4 and theft by unlawful taking under $500.5 The Commonwealth certified in the discovery compliance notice it had provided discovery, which included Zanders's criminal history, to his DPA6attorney on April 13, 2017. At the same time, the Commonwealth extended an offer and allowed Zanders to apply for the pretrial diversion program.[7] Zanders did so and was accepted by the Commonwealth into the diversion program. After approving Zanders's application, the Commonwealth offered a three-year sentence diverted for five years under the felony diversion program in exchange for his guilty plea on the first charge, and twelve months on the third charge. It also recommended dismissing the second, fourth, and fifth counts of the indictment. Zanders then pled guilty on May 12, 2017, to fleeing or evading, first degree, and driving on a suspended license. In a judgment entered on May 15, 2017, in accordance with the plea agreement, the trial court accepted Zanders's guilty plea and apparently sentenced him accordingly.

Shortly thereafter, another attorney with the DPA, who represented Zanders in an earlier criminal matter (a 2014 case), 8 contacted the trial court to request reconsideration of its denial of shock probation. The trial court requested a written motion. On receiving the motion, it set a joint hearing for both cases to determine why diversion had been granted in the current case although Zanders's probation in the 2014 case had been revoked. At the hearing, the Commonwealth made an oral motion to set aside the first plea agreement, effectively revoking Zanders's eligibility for diversion and declaring he would not have been accepted had the Commonwealth fully considered the probation revocation from the 2014 case. The trial court granted the Commonwealth's motion after...

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