Opinion
NO. 2017-CA-001145-MR
06-01-2018
REBECCA KISSELL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Samuel N. Potter Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM UNION CIRCUIT COURT
HONORABLE C. RENE' WILLIAMS, JUDGE
ACTION NO. 16-CR-00145 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; SMALLWOOD AND TAYLOR, JUDGES. SMALLWOOD, JUDGE: Rebecca Kissell directly appeals from the judgment and sentence of the Union Circuit Court. For the reasons set out below, we affirm.
On November 17, 2016, the Commonwealth filed an information charging Kissell with theft by unlawful taking over $500. The Commonwealth offered one year's imprisonment plus restitution on a rocket docket plea, which is part of an expedited prosecution process. This offer contained a "hammer clause," which conditioned the offer upon Kissell's presence at sentencing upon being released on her own recognizance. If she did not appear, the maximum sentence of five years' imprisonment could be imposed, rather than the one year in prison. Kissell agreed to these terms, and the trial court accepted her plea on December 6, 2016, and set sentencing for January 9, 2017.
Kissell did not appear for sentencing. A note from Methodist Hospital was filed with the trial court, stating that Kissell had been admitted to the emergency room that day. The trial court decided that if a doctor's report was not filed by 3:30 p.m. that day, a bench warrant would be issued for Kissell. Another court date was set for February 7, 2017, and a copy of the docket sheet with this court date was mailed to Kissell by the clerk of the court. However, it was returned as undeliverable. Kissell failed to appear before the trial court on February 7th.
The bench warrant was executed several months later, and a hearing was scheduled for June 6, 2017. Kissell presented several explanations as to why she did not appear on either of her previous court dates and why she did not contact her attorney (i.e., that she did not have minutes on her phone, that she called the court and they did not tell her about any court dates, etc.). The court stated that it did not believe her and sentenced Kissell to five years' imprisonment. This appeal followed.
Kissell argues on appeal that the trial court abused its discretion when it sentenced her in accordance with the hammer clause contained in the plea agreement. Although hammer clauses are not per se banned, our Supreme Court has been critical of the use of hammer clauses in plea agreements in Knox v. Commonwealth, 361 S.W.3d 891 (Ky. 2012) and McClanahan v. Commonwealth, 308 S.W.3d 694 (Ky. 2010). We review a court's adherence to a hammer clause provision for abuse of discretion. See Knox, 361 S.W.3d at 899.
In McClanahan, the Court reversed the trial court's hammer clause sentence for two reasons: (1) because the sentence exceeded the statutory maximum for the committed offense; and (2) because the trial court had failed to exercise independent discretion in deciding the sentence. Additionally, in McClanahan, the Court points out that it upheld the sentencing in Jones v. Commonwealth, 995 S.W.2d 363 (Ky. 1999), because the sentence imposed, as set forth in the plea agreement's hammer clause, was within the statutory range of penalties for the offense. 308 S.W.3d at 698-99.
In Knox, the Court delved deeper into hammer clauses and their relationship to plea agreements, stating:
[P]lea agreements between prosecutors and criminal defendants are a vital part in the administration of justice. They are certainly significant considerations in a judge's sentencing decisions, and often will be the most influential factor. But a plea agreement can never be the only factor weighing into the judge's sentencing decision. A plea agreement does not relieve the judge of the statutory directives with respect to sentencing and it does not supplant the judge's duty to make an independent determination of the appropriate sentence.361 S.W.3d at 897. The Court's main emphasis was on the trial court's ability to "remain unbiased and able to render an impartial, particularized, and case-specific decision, based upon all the underlying facts and circumstances . . . ." Id. at 898-99.
Here, the trial court made efforts to ascertain Kissell's reasoning for missing her sentencing court date, but ultimately found Kissell's excuses to be insufficient and disingenuous. Kissell had ample time to sort out her legal situation but the court found she failed to take appropriate action during the five months after her sentencing date. The court conducted its own independent determination as to the appropriate sentence. Furthermore, the imposed sentence of five years' imprisonment was with within the statutory range for the Class D felony offense committed. Thus, we conclude that the trial court did not abuse its discretion by imposing the sentence prescribed in the hammer clause.
Accordingly, we affirm the judgment and sentence of the Union Circuit Court.
CLAYTON, CHIEF JUDGE, CONCURS.
TAYLOR, JUDGE, DISSENTS WITHOUT OPINION. BRIEFS FOR APPELLANT: Samuel N. Potter
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky