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Maupin v. Commonwealth

Commonwealth of Kentucky Court of Appeals
Jun 12, 2020
NO. 2018-CA-001390-MR (Ky. Ct. App. Jun. 12, 2020)

Opinion

NO. 2018-CA-001390-MR

06-12-2020

JESSICA MICHELLE HEADY MAUPIN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

BRIEFS FOR APPELLANT: Cicely J. Lambert Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General Christopher Henry Assistant Attorney General Frankfort, Kentucky


NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE AUDRA J. ECKERLE, JUDGE
ACTION NO. 11-CR-003608 OPINION
DISMISSING AS INTERLOCUTORY

** ** ** ** **

BEFORE: ACREE, GOODWINE, AND KRAMER, JUDGES. ACREE, JUDGE: Jessica Maupin appeals the Jefferson Circuit Court's August 10, 2018 order sentencing her to thirty days in jail and ordering her to strictly comply with the terms of her diversion. Because Maupin appealed from a non-final, interlocutory order, we dismiss her appeal.

The Jefferson County grand jury indicted Maupin on charges of Theft by Deception over $500.00 but less than $10,000.00, a Class D felony. In exchange for a guilty plea, the Commonwealth offered Maupin a one-year sentence, diverted for three years, but also recommended that Maupin be required to pay restitution on terms to be set by the circuit court. Maupin agreed and entered her guilty plea. After a restitution hearing, the circuit court accepted Maupin's plea and entered an order requiring Maupin to pay $3,800.00 in restitution, at a rate of $25.00 per month.

The court's restitution order stated "[d]efendant's sentence is probated or diverted for a period of 3 years or until restitution is paid in full, as mandated by K.R.S. 532.033(8), 533.020(4) and 533.254." The circuit court incorporated this restitution order in its April 2, 2013 order granting pretrial diversion of a Class D felony. In the April 2, 2013 order, the circuit court stated that diversion "shall not exceed five (5) years without agreement of defendant except the duration of the diversion program shall not be less than the time to make restitution in full." This is consistent with the statutes authorizing the court to prescribe a "period of probation . . . not [to] exceed five (5) years, or the time necessary to complete restitution, whichever is longer, upon conviction of a felony . . . ." KRS 533.020(4) (emphasis added); KRS 533.254(1) ("The provisions of KRS 533.020 relating to the period of probation shall, in so far as possible, be applicable to the period of pretrial diversion . . . .").

Kentucky Revised Statutes.

A little more than a year later, on May 1, 2014, and before Maupin made restitution, the Commonwealth moved to revoke Maupin's diversion, citing an arrest for a misdemeanor shoplifting charge in Hardin County. Maupin was arraigned on August 25, 2014. The Commonwealth supplemented its motion with a special supervision report from probation and parole that included Maupin's deficiency in her restitution and arrearage. The report stated that Maupin entered a guilty plea in Hardin County as to the shoplifting charge and failed to remain current on her restitution. However, at the status hearing, the Commonwealth withdrew its motion because Maupin was current and ahead on her restitution. The circuit court then allowed her to continue pretrial diversion and course of restitution payments.

Maupin was caught shoplifting at the local Walmart. The items stolen totaled $57.48. --------

On October 11, 2017, the Commonwealth filed a second motion to revoke Maupin's pretrial diversion because she was dilatory in her restitution payments and had not reported to the Division of Probation and Parole for approximately three months. On March 1, 2018, Maupin stipulated to the violations and she agreed to a thirty-day sentence, with credit for the thirty days already served.

On May 10, 2018, the circuit court issued a warrant for Maupin's arrest due to additional new misdemeanor charges, for failing to report her arrest within seventy-two hours, and for leaving the area of supervision without permission. After the warrant issued, the Commonwealth filed a brief in support of the motion to revoke. In response, Maupin moved the circuit court to dismiss her pretrial diversion "as dismissed/diverted for lack of jurisdiction." She argued the three-year period of probation had expired.

The circuit court rejected her argument and denied the motion, finding it had "expressly ruled in writing [and] orally that [Maupin's] diversion would continue . . . until her restitution was paid in full." A sentencing hearing was held on August 8, 2018, at which Maupin stipulated to violating the terms of her pretrial diversion. On August 10, 2018, the circuit court sentenced Maupin and ordered her to strictly comply with the conditions of her diversion. This appeal followed.

Before we address Maupin's argument on appeal, we must address the Commonwealth's argument that this appeal is from an interlocutory order. It is well-settled in Kentucky that pretrial diversion orders are non-final, interlocutory orders. As our high court said:

An order of diversion . . . does not fully dispose of any criminal charges. Rather, it simply memorializes an agreement that exists between the Commonwealth and the defendant and halts prosecution between admission of guilt and imposition of sentence. Accordingly, the trial court's jurisdiction over the diverted case is extinguished
in two circumstances: (1) upon the imposition of sentence in an unsuccessful diversion; or (2) upon entry of an order listing the charges as "dismissed-diverted" as required by KRS 533.258(1) after successful completion of the diversion agreement.
Ballard v. Commonwealth, 320 S.W.3d 69, 73 (Ky. 2010); see also Commonwealth v. Derringer, 386 S.W.3d 123, 130 (Ky. 2012) (footnotes omitted) ("Unlike sentences of probation or conditional discharge, pretrial diversion is not a sentencing alternative; it is an 'interruption of prosecution prior to final disposition' of a case that enables defendants 'to obtain deferred sentencing for a specified period of time.' . . . [A] defendant is granted diversion subject to a guilty plea; but only if the trial court revokes diversion is the defendant sentenced. If the defendant successfully completes diversion, a sentence will never be imposed; and the conviction will be dismissed-diverted.").

"The Commonwealth's right to appeal from an interlocutory order is established by KRS 22A.020(4)." Ballard, 320 S.W.3d at 71-72 (emphasis added). Unlike the Commonwealth, a criminal defendant does not have the right to appeal from an interlocutory order. Because Maupin has neither been sentenced nor made restitution, we agree with the Commonwealth that this appeal is from a non-final, interlocutory order. Accordingly, this Court does not have jurisdiction, and the appeal must be dismissed.

Maupin's focus on the "three-year" language of the original diversion order distracts her from the real issue here. Her period of probation is no longer three years; that time has passed. Her period of probation is now measured only by "the time necessary to complete restitution," KRS 533.020(4), and that means the remaining length of her probation is entirely within her control. It will end when she completes restitution.

For the foregoing reasons, the above-styled appeal is hereby dismissed as interlocutory.

ALL CONCUR. BRIEFS FOR APPELLANT: Cicely J. Lambert
Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General Christopher Henry
Assistant Attorney General
Frankfort, Kentucky


Summaries of

Maupin v. Commonwealth

Commonwealth of Kentucky Court of Appeals
Jun 12, 2020
NO. 2018-CA-001390-MR (Ky. Ct. App. Jun. 12, 2020)
Case details for

Maupin v. Commonwealth

Case Details

Full title:JESSICA MICHELLE HEADY MAUPIN APPELLANT v. COMMONWEALTH OF KENTUCKY…

Court:Commonwealth of Kentucky Court of Appeals

Date published: Jun 12, 2020

Citations

NO. 2018-CA-001390-MR (Ky. Ct. App. Jun. 12, 2020)