Summary
In Milam v. Commonwealth, 593 S.W.3d 68, 71 (Ky.App. 2020), the Court allowed the appellant, who filed a notice of appeal naming an oral sentence as noted in writing on a docket sheet, to relate forward to a formal written judgment and sentence entered later.
Summary of this case from V.M. v. CommonwealthOpinion
NO. 2018-CA-001892-MR
01-03-2020
Harold Michael MILAM, Appellant v. COMMONWEALTH of Kentucky, Appellee
BRIEF FOR APPELLANT: Travis Bewley, Steven J. Buck, Frankfort, Kentucky. BRIEF FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, Joseph A. Beckett, Assistant Attorney General, Frankfort, Kentucky.
BRIEF FOR APPELLANT: Travis Bewley, Steven J. Buck, Frankfort, Kentucky.
BRIEF FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, Joseph A. Beckett, Assistant Attorney General, Frankfort, Kentucky.
BEFORE: GOODWINE, LAMBERT, AND K. THOMPSON, JUDGES.
OPINION
LAMBERT, JUDGE:
Harold Michael Milam appeals from the Casey Circuit Court’s judgment sentencing him to five years’ imprisonment following the court’s decision to void his pretrial diversion. The Commonwealth concedes error in how the trial court voided Milam’s diversion, and we agree with the Commonwealth’s assessment of the trial court’s error. Therefore, we vacate the judgment and remand with instructions to the trial court to dismiss the underlying charge as diverted.
On August 2, 2010, the Casey County grand jury indicted Milam for second-degree assault based on an incident in which Milam intentionally struck his victim with an automobile. Milam entered a guilty plea to an amended charge of first-degree wanton endangerment. In accord with the Commonwealth’s recommendation, the trial court thereafter granted Milam an unsupervised pretrial diversion period of five years on an agreed sentence of five years’ imprisonment. As part of the conditions for diversion, the trial court required Milam to refrain from further offenses, specifically stating he must "have no violation of the Penal Code or the Controlled Substances Act." The trial court entered its pretrial diversion order on February 27, 2012.
Kentucky Revised Statute (KRS) 508.020, a Class C felony.
KRS 508.060, a Class D felony.
Unfortunately, Milam incurred multiple criminal charges over the next few years, including convictions in Meade District Court No. 13-M-00240 and Russell District Court No. 13-M-00159. Almost exactly five years after the diversion order, on February 24, 2017, the Commonwealth filed a motion to extend Milam’s diversion period. The Commonwealth pointed to the aforementioned convictions and asserted Milam had also incurred a pending charge in Daviess District Court No. 17-M-00119. The Commonwealth’s certificate of service indicated a copy of the motion would be either hand-delivered to Milam or sent via first-class mail. Milam asserted he never received notice prior to the hearing.
Three days later, on February 27, 2017, the trial court conducted a hearing on the Commonwealth’s motion to extend Milam’s diversion. Neither Milam nor anyone acting as his counsel appeared. The trial court heard the Commonwealth’s arguments and extended Milam’s diversion for two additional years in lieu of revocation. The trial court also ordered Milam’s diversion would be thenceforth subject to supervision by probation and parole officers. Several days later, when a probation and parole officer telephoned Milam to advise him his diversion period had been extended, Milam stated he did not agree to his diversion being extended. Milam then contacted his counsel, who advised him to cooperate with the officers. For several months, Milam complied with the new conditions, but he began violating his reporting and drug testing requirements in February 2018. He eventually admitted to using marijuana and methamphetamine.
On August 2, 2018, the Commonwealth moved to void the pretrial diversion agreement. At the hearing on the motion, Milam argued diversion had been improperly extended in his case. He pointed out that he could not have received notice of the Commonwealth’s motion with sufficient time to appear with counsel and defend himself. He also argued the time period for diversion had expired by operation of law. The Commonwealth argued the motion to extend was proper because it was filed before the diversion period ended. The trial court agreed with the Commonwealth, stating it was "comfortable" with its order extending diversion. The trial court also asserted its order extending diversion was to Milam’s benefit. The trial court subsequently voided Milam’s pretrial diversion and imposed a five-year sentence on the underlying charge. This appeal followed.
As a preliminary matter, we must first consider how Milam filed his notice of appeal on December 18, 2018, based specifically on the trial court’s oral sentencing as noted on a docket sheet on November 26, 2018. A notice of appeal must be based on a written judgment and not an oral sentencing. "Circuit courts speak only through written orders entered upon the official record." Oakley v. Oakley , 391 S.W.3d 377, 378 (Ky. App. 2012) (citation and internal quotation marks omitted). The trial court’s docket sheet notes could perhaps suffice for a written judgment, but the court then followed this docket sheet notation with a formal written judgment and sentence entered on December 18, 2018. This formal judgment is not reflected in Milam’s notice of appeal, which presents a procedural irregularity. See CR 73.03(1) (The appellant is required to "identify the judgment, order or part thereof appealed from.").
Kentucky Rule of Civil Procedure.
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Strictly speaking, Milam should have amended his notice of appeal to reflect the formal written order of December 18, 2018. Oakley , 391 S.W.3d at 378. However, in Wright v. Ecolab, Inc. , 461 S.W.3d 753 (Ky. 2015), the Kentucky Supreme Court held the "relation forward" doctrine allows "a premature notice of appeal from [a] bench ruling to relate forward to judgment and serve as an effective notice of appeal from the final judgment." Id. at 759 (emphasis omitted) (quoting FirsTier Mortg. v. Investors Mortg. Ins. Co. , 498 U.S. 269, 275, 111 S. Ct. 648, 112 L. Ed. 2d 743 (1991) ). Therefore, pursuant to Wright , we will consider the merits of the matter sub judice. Nonetheless, counsel should take note of the applicable procedural rules for the sake of future appeals.
A trial court may void pretrial diversion agreements pursuant to KRS 533.256(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.
(Emphasis added.) A trial court’s decision to void pretrial diversion uses the same criteria as a decision to revoke probation. Richardson v. Commonwealth , 494 S.W.3d 495, 498 (Ky. App. 2015). "A decision to revoke probation is reviewed for an abuse of discretion." Commonwealth v. Andrews , 448 S.W.3d 773, 780 (Ky. 2014) (citing Commonwealth v. Lopez , 292 S.W.3d 878 (Ky. 2009) ). "Under our abuse of discretion standard of review, we will disturb a ruling only upon finding that ‘the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.’ " Id. (quoting Commonwealth v. English , 993 S.W.2d 941, 945 (Ky. 1999) ).
Milam presents four arguments on appeal. First, he argues the trial court did not comport with minimal due process when it extended and modified his pretrial diversion. Second, Milam argues his pretrial diversion was improperly extended. Third, Milam argues the trial court abused its discretion in its failure to consider whether he was a danger to the community or prior victims before voiding his diversion. Fourth, Milam argues the trial court erroneously assessed court costs to him in spite of his indigency. The Commonwealth concedes the trial court erred as asserted in Milam’s second argument, and we agree. Consequently, we need not consider Milam’s other arguments here.
In his second argument, Milam asserts the trial court improperly extended his diversion period. As a result, he argues the diversion period had expired before the trial court could void it. In its brief on appeal, the Commonwealth concedes this is correct, admitting the motion before the trial court below was not a motion to void diversion but was, instead, a motion to extend diversion, which does not operate to toll the diversion period. We agree with the Commonwealth’s evaluation of the issue. "[T]he trial court has authority to void the diversion agreement, even after the period of diversion has ended, so long as the Commonwealth has entered a timely motion to void prior to expiration of the diversion period." Ballard v. Commonwealth , 320 S.W.3d 69, 74 (Ky. 2010) (emphasis added); see also Tucker v. Commonwealth , 295 S.W.3d 455, 456 (Ky. App. 2009).
Here, Milam’s five-year diversion period expired the day the trial court held a hearing on the Commonwealth’s motion to extend the diversion period. There was no pending motion to void diversion. Under Ballard and Tucker , the Commonwealth’s motion to extend diversion was insufficient to preserve the trial court’s authority to subsequently void Milam’s diversion. The remedy, pursuant to Tucker , is to vacate the judgment and remand with instructions to dismiss with prejudice the underlying charge as diverted.
For the foregoing reasons, we vacate the Casey Circuit Court’s judgment and remand with instructions to dismiss with prejudice the underlying charge in Casey Circuit Court No. 10-CR-00077 and list the case as "dismissed-diverted" in accordance with KRS 533.258(1).
ALL CONCUR.