Opinion
NO. 2014-CA-001605-MR
06-17-2016
COMMONWEALTH OF KENTUCKY APPELLANT v. MADELINE E. FRIED-DEANGELIS APPELLEE
BRIEF FOR APPELLANT: Jack Conway Attorney General of Kentucky Emily J. Arnzen Special Assistant Attorney General Covington, Kentucky BRIEF FOR APPELLEE: Ryan J. Reed Covington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 11-CR-00855 OPINION
REVERSING AND REMANDING
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BEFORE: COMBS, DIXON AND STUMBO, JUDGES. STUMBO, JUDGE: The Commonwealth of Kentucky brings this appeal from a Kenton Circuit Court order concerning Madeline E. Fried-Deangelis' pretrial diversion agreement. The Commonwealth argues that the trial court voided the diversion agreement and then granted a new period of diversion. Fried-Deangelis argues that the trial court did not void her diversion agreement, but merely changed the terms. We believe the order at issue is unclear as to which interpretation is correct; therefore, we reverse and remand for the trial court to clarify its position.
Madeline E. Fried-Deangelis entered a plea of guilty in Kenton Circuit Court to one count of receiving stolen property, $500 or more. The circuit court followed the Commonwealth's recommendation and granted Fried-Deangelis pretrial diversion on a Class D felony for a period of three years, entering an order to that effect on January 15, 2013.
On August 13, 2013, a diversion revocation hearing was held. During the hearing, evidence was introduced that Fried-Deangelis had violated the terms of her diversion agreement by leaving the supervision area and by consuming alcohol. The trial court found that Fried-Deangelis had violated the terms of her agreement. In an order entered on August 23, 2013, the trial court "REVOKED but REINSTATED" her diversion. The court's order stated that Fried-Deangelis was still subject to the diversion conditions placed on her in the January 15, 2013 order. The court also placed further conditions on her, such as being placed on home incarceration, community service, and being evaluated for Mental Health Court.
On April 1, 2014, a diversion revocation hearing was held at which Fried-Deangelis admitted to sixteen of seventeen violations alleged in four affidavits filed by the Department of Probation and Parole. The circuit court found her in violation of the conditions of her pretrial diversion agreement. In an order entered on April 3, 2014, the trial court stated that Fried-Deangelis' diversion was "REVOKED but "REINSTATED". The order stated that she was to continue with diversion, abide by the conditions she was previously subject to, and also required to complete the Mental Health Court Program.
Two months later, Mental Health Court filed an affidavit of violation and, a few days later, a notice of termination for Fried-Deangelis. The affidavit and notice both state that Fried-Deangelis was "no longer appropriate" for the Mental Health Court Program. The Commonwealth claims Fried-Deangelis failed to complete the program due to violating its terms. Fried-Deangelis claims that she was terminated from the program through no fault of her own, but because it was an inappropriate program. Unfortunately, the record is not clear which interpretation is correct.
On August 18, 2014, following a hearing, the circuit court revoked the diversion imposed by the judgment entered on January 15, 2013, and, over the Commonwealth's objection, ordered a successive three-year period of diversion. On September 4, 2014, the trial court entered an order setting forth its decision. The court's order stated that the diversion was "REVOKED." The order then stated that Fried-Deangelis be sentenced to three-years' diversion which was to be conditionally discharged for three years. The court's order required her to be placed on in-active supervision, pay all required fees, commit no criminal acts, maintain employment, submit to random drug testing, and consume no intoxicants unless prescribed by a physician. This appeal by the Commonwealth followed.
The Commonwealth argues that the circuit court's action in imposing a successive term of felony pretrial diversion, without the Commonwealth's consent, was contrary to the terms of Kentucky Revised Statute (KRS) 533.256 and an unconstitutional violation of the separation of powers. Fried-Deangelis argues that the trial court did not void her diversion and then enter a new diversion agreement, but that the trial court only changed the terms of her diversion.
The pertinent provisions of KRS 533.256 provide as follows:
(1) If the defendant fails to complete the provisions of the pretrial diversion agreement within the time specified, or is not making satisfactory progress toward the completion of the provisions of the agreement, the Division of Probation and Parole, the victim, or a peace officer may inform the attorney for the Commonwealth of the alleged violation or noncompliance, and the attorney for the Commonwealth may apply to the court for a hearing to determine whether or not the pretrial diversion agreement should be voided and the court should proceed on the defendant's plea of guilty in accordance with the law.KRS 533.256.
(2) In making a determination as to whether or not a pretrial diversion agreement should be voided, 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.
. . . .
(4) If the court voids the pretrial diversion agreement, the court shall notify the applicable prosecutor in writing that the pretrial diversion agreement has been voided and the reasons for the action. The prosecutor shall decide whether or not to proceed on the plea of guilty in accordance with the law.
The Commonwealth contends that if a circuit court voids a pretrial diversion agreement, the question of how to proceed thereafter rests with the prosecutor. The plain language of the statute - "the prosecutor shall decide whether or not to proceed on the plea of guilty" - supports this interpretation. The statute does not permit the trial court to create a successive pretrial diversion agreement without the consent of the Commonwealth. We are not convinced, however, that this is what occurred in the case at hand.
The order at issue does not state that the diversion agreement was being "voided." Three times the trial court stated that Fried-Deangelis' diversion was "revoked," but each time the trial court allowed Fried-Deangelis to remain in the diversion program and altered the conditions of diversion. It is unclear to this Court whether the order on appeal voided Fried-Deangelis' diversion or if it was only changing the conditions of her diversion. The original order granting Fried-Deangelis' diversion stated that the trial court could alter the conditions of diversion any time.
After the entry of the order on appeal, the Commonwealth moved for the trial court to reconsider and Fried-Deangelis responded to the motion. Before the trial court could rule on the motion, the Commonwealth appealed to this Court. The issues raised on appeal are the same issues raised in the motion to reconsider and the response. --------
In addition, when determining if diversion should be voided, a trial court must use the same criteria as it would use when revoking probation. KRS 533.256(2). That means the trial court must look to KRS 439.3106. McVey v. Commonwealth, 467 S.W.3d 259 (Ky. App. 2015). KRS 439.3106 states:
Supervised individuals shall be subject to:
(1) Violation revocation proceedings and possible incarceration for failure to comply with the conditions of supervision when such failure constitutes a significant
risk to prior victims of the supervised individual or the community at large, and cannot be appropriately managed in the community; orThis statute states that when supervised individuals on probation violate the terms of their probation, they may be incarcerated or subject to sanctions other than incarceration. If we apply this to Fried-Deangelis' diversion and the order on appeal, we can see the reasoning in Fried-Deangelis' argument that her diversion was not voided, but that she was only being subjected to different conditions. In other words, she was seemingly subjected to sanctions other than incarceration.
(2) Sanctions other than revocation and incarceration as appropriate to the severity of the violation behavior, the risk of future criminal behavior by the offender, and the need for, and availability of, interventions which may assist the offender to remain compliant and crime-free in the community.
We cannot be sure what the trial court intended in this instance. We believe the trial court needs to clarify its order; therefore, we reverse and remand.
ALL CONCUR. BRIEF FOR APPELLANT: Jack Conway
Attorney General of Kentucky Emily J. Arnzen
Special Assistant Attorney General
Covington, Kentucky BRIEF FOR APPELLEE: Ryan J. Reed
Covington, Kentucky