DANIEL REESE HAMPTON v. COMMONWEALTH OF KENTUCKY
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RENDERED:
FEBRUARY 11, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001450-MR
DANIEL REESE HAMPTON
APPELLANT
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE STEVEN D. COMBS, JUDGE
ACTION NO. 01-CR-00126
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, HENRY, AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Daniel Reese Hampton has appealed from the
final judgment and order of imprisonment of the Pike Circuit
Court entered on July 3, 2003, which revoked his pretrial
diversion and sentenced him, pursuant to his guilty plea, to one
year in prison for the offense of flagrant nonsupport.1
1
Kentucky Revised Statutes (KRS) 530.050(2) provides:
A person is guilty of flagrant nonsupport when
he persistently fails to provide support which he can
reasonably provide and which he knows he has a duty
to provide by virtue of a court or administrative
Having
concluded that the trial court did not abuse its discretion in
sentencing Hampton, we affirm.2
Hampton and his former wife, Debra, were divorced in
1992, and pursuant to their decree of dissolution of marriage,
Hampton was to pay Debra child support of $265.00 per month for
their minor child Brandon.
From 1992 to November 2000, Hampton
repeatedly failed to pay child support, and the Commonwealth, on
Debra’s behalf, filed a motion to hold Hampton in contempt of
court.
Subsequently, on November 17, 2000, the trial court
issued a bench warrant for Hampton’s arrest, and ordered that he
could purge himself of contempt by paying his child support
arrearage through November 2000 in full, which totaled
$10,918.82.3
order to a minor child . . . and the failure results
in:
(a) An arrearage of not less than one thousand
dollars ($1,000.00); or
(b) Six (6) consecutive months without payment
of support; or
(c) The dependent having been placed in
destitute circumstance. . . .
2
Hampton states in his brief to this Court that his due process rights were
violated when the trial court denied his motion for an appeal bond pending
the resolution of this case. However, the Commonwealth in its brief revealed
that an agreed order was entered on July 3, 2003, between the parties
allowing Hampton to remain on bond pending his appeal to this Court. In his
reply brief, Hampton has conceded this argument and we have no reason to
further review this issue.
3
The records of the Pike County Child Support Office indicated that as of
November 1, 2000, Hampton had paid a total of $10,106.94 in child support.
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On June 4, 2001, Hampton was indicted by a Pike County
grand jury on one count of flagrant nonsupport, pursuant to KRS
530.050.
guilty.
On April 16, 2002, Hampton was arraigned and pled not
Prior to trial, on July 19, 2002, Hampton signed a
motion to enter guilty plea and motion for pretrial diversion of
a Class D felon.4
On that same date, Hampton’s guilty plea was
accepted and the trial court entered an order on July 22, 2002,
granting the pretrial diversion for five years, which was signed
by the Commonwealth, Hampton, and his attorney.
support arrearage was set at $14,346.35.5
Hampton’s child
The terms of the
diversion agreement included payment of $200.00 per month on the
arrearage, payment of $265.00 per month for current child
support, and no commitment of another offense during the period
of diversion.
Hampton was to remain on pretrial diversion for
five years, or until the arrearage was paid in full.
In return
for his guilty plea, the Commonwealth recommended a one-year
sentence of imprisonment,6 in the event Hampton failed to
complete the terms and conditions of the diversion agreement,
and the Commonwealth agreed not to oppose Hampton’s motion for
pretrial diversion.
4
These motions were filed on July 22, 2002.
5
Pursuant to the diversion agreement, Hampton appeared in open court on July
19, 2002, to enter a plea of guilty on the charge of flagrant nonsupport.
6
The maximum possible sentence of imprisonment on the charge was five years.
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Because Hampton failed to honor the provisions of the
diversion agreement, the Commonwealth, on October 14, 2002,
moved the trial court for appropriate action.
The trial court
held a hearing on December 13, 2002, and in an order dated
December 20, 2002, gave Hampton one more chance and stated as
follows:
1.
The Defendant, Daniel Reese Hampton,
shall pay a total of $1,260 in January
2003, to be applied $265.00 to current
support and $995.00 to be applied to
arrearages. This payment shall be made
to the Pike County Attorney’s Office,
Division of Family Support.
2.
He shall continue to make payments of
$1,260 each month after January until
he has paid the entire arrearage or
until further order of this Court.
3.
The hearing on the [Commonwealth’s]
motion to revoke his diversion and
sentence him to prison is continued
until February 21, 2003 [emphasis
added].
After several orders were entered rescheduling the
hearing on the Commonwealth’s motion to revoke diversion, a
hearing was held on May 23, 2003.7
Hampton’s failure to comply
with the requirements of the pretrial diversion agreement was
7
In April 2003, the Commonwealth agreed to a continuance pending resolution
of Hampton’s Social Security claim. This Social Security claim was denied in
April 2003, and Hampton appealed. It is clear that the Commonwealth was
sensitive to this attempt by Hampton, negating Hampton’s argument to this
Court that his constitutional rights were violated as he attempted to pursue
his Social Security claim.
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undisputed.8
Hampton stated that he had had no income since July
2002, when he was laid off from his job as a laborer for a gas
company, and his failure to comply with the pretrial diversion
agreement was due to his inability to work,9 inability to draw
unemployment benefits,10 and the denial of his Social Security
disability claim.
Hampton argued that he should not be punished
for failing to pay his child support, because he was not able to
pay what he owed.
However, the trial court was not persuaded
and stated that Hampton had agreed to the terms of the pretrial
diversion agreement in July 2002, despite being laid off a month
earlier.
Further, the back injury that he complained of had
occurred in 1991, yet there was evidence that he had worked as
recently as June 2002.
The trial court entered orders on July
16, 2003, and July 24, 2003, finding that Hampton had violated
the conditions of his pretrial diversion,11 and pursuant to KRS
533.256(1),12 ordered the diversion revoked, and scheduled a
8
Hampton testified that he had paid his wife some money for his son since the
date of the diversion agreement, however he had failed to pay this through
the child support office and was unable to produce any receipts or cancelled
checks to support his testimony.
9
Hampton testified that he aggravated his 1991 back injury and was currently
under a doctor’s care. He argued that he only had a tenth-grade education
and only had experience working jobs requiring manual labor.
10
Hampton testified that when he entered the pretrial diversion agreement, he
thought he was going to be eligible for unemployment, but he was not because
he had applied for Social Security benefits.
11
The trial court found that Hampton’s child support arrearage through April
30, 2003, was $17,261.35.
12
KRS 533.256(1) provides:
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sentencing hearing.
On June 27, 2003, Hampton was sentenced13 to
one year in prison14 pursuant to the pretrial diversion agreement
and on July 3, 2003, a final judgment and order of imprisonment
was entered.
This appeal followed.
Hampton claims that the Commonwealth failed to prove
that he could reasonably pay child support.
He cites the
Supreme Court of Kentucky case of Schoenbachler v.
Commonwealth,15 in support of his contention that the
Commonwealth had the burden of proving that he was reasonably
able to pay support.
While we agree with Hampton’s statement of
the law, we conclude that Schoenbachler does not support his
position.
In Schoenbachler, the defendant was found guilty
pursuant to a jury verdict of flagrant nonsupport, and sentenced
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.
13
At the sentencing hearing, Hampton declined the invitation to speak on his
behalf as to any mitigating factors to be considered. Further, he was given
an opportunity to review the pre-sentence investigation report and had no
objection.
14
Hampton received four days credit for time served.
15
95 S.W.3d 830 (Ky. 2003).
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to one year in prison.
The Supreme Court noted that the
Commonwealth had the burden of proving that Schoenbachler did
not have the ability to provide child support, and it ruled that
the evidence was sufficient to support the jury’s verdict.16
In this case, Hampton pled guilty to the charge of
flagrant nonsupport in order to receive a pretrial diversion,
rather than being sentenced to one year in prison or going to
trial and facing a prison sentence of up to five years.
At the
guilty plea hearing, the trial judge specifically asked Hampton
if he understood that he was waiving his right to have the
Commonwealth prove beyond a reasonable doubt that he was guilty
of flagrant nonsupport.
He answered affirmatively.
Furthermore, by entering his plea of guilty, Hampton admitted he
violated the elements of flagrant nonsupport and he was “deemed
convicted”.17
By pleading guilty, Hampton waived his right to
trial and his right to have the Commonwealth prove he had the
ability to reasonably provide child support.18
Thus, once
Hampton pled guilty to the charge, all that was required of the
Commonwealth to prove was that he had not complied with the
pretrial diversion agreement.
16
Schoenbachler, 95 S.W.3d at 835-36.
17
Thomas v. Commonwealth, 95 S.W.3d 828, 829 (Ky. 2003).
18
See Centers v. Commonwealth, 799 S.W.2d 51, 54 (Ky.App. 1990).
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Therefore, the issue becomes whether or not Hampton’s
plea was constitutionally valid.
When a case is resolved by a
plea of guilty, the guilty plea must represent a voluntary and
intelligent choice among the alternative courses of action open
to a defendant.19
The trial court must determine that a
defendant’s guilty plea is intelligent and voluntary, and this
determination must be put in the record.20
The validity of a
guilty plea must be determined from considering the totality of
the circumstances surrounding it.21
These circumstances include
the accused’s demeanor, background and experience, and whether
the record reveals that the plea was voluntarily made.22
Solemn
declarations made in open court carry a strong presumption of
verity.23
The trial court is in the best position to determine
if there was any reluctance, misunderstanding, involuntariness,
or incompetence by the defendant in pleading guilty.24
19
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970);
Centers, 799 S.W.2d at 54; Sparks v. Commonwealth, 721 S.W.2d 726 (Ky.App.
1986).
20
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274
(1969); Centers, supra; Sparks, supra at 727.
21
Commonwealth v. Crawford, 789 S.W.2d 779, 780 (Ky. 1990); Centers, supra;
Kotas v. Commonwealth, 565 S.W.2d 445, 447 (Ky. 1978).
22
Centers, supra; Sparks, supra; Littlefield v. Commonwealth, 554 S.W.2d 872
(Ky.App. 1977).
23
Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136
(1977).
24
Centers, supra (citing Blackledge, supra).
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Hampton argues to this Court that his guilty plea
could not have been voluntary because he did not understand the
law in relation to the facts.
He argues that, at the guilty
plea hearing, the trial judge merely asked “the laundry list of
questions” and Hampton “rhythmically” answered.
However, in
reviewing the video record, it is apparent that the trial judge
very carefully asked the questions to Hampton.
There is no
evidence that Hampton did not answer the questions with the
level of understanding as required under Kentucky law.25
The order granting pretrial diversion and accepting
Hampton’s guilty plea specifically states that Hampton’s
attorney explained to him the terms and conditions of the
pretrial diversion and that Hampton freely, voluntarily,
intelligently, and knowingly entered into the agreement with the
Commonwealth.
The order further states that if Hampton failed
to successfully complete pretrial diversion thereby voiding the
agreement, the Court could impose a sentence equal to or less
than the penalty recommended by the Commonwealth.26
We have reviewed the video record of the guilty plea
hearing.
The trial judge carefully asked Hampton if he was
voluntarily waiving his various constitutional rights, if he was
satisfied with his counsel, if he needed any more time to
25
See Turner v. Commonwealth, 647 S.W.2d 500 (Ky.App. 1982).
26
This is similar to the language set out in the motion to enter guilty plea
and motion for pretrial diversion of a Class D felon signed by Hampton.
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consider his plea, if he was under the influence of any alcohol,
drugs, or medication, if he desired to plead guilty, if he was
pleading guilty based on guilt alone, and if anyone promised him
they could bind the trial court to accept his plea.
Hampton’s
answers to the questions support the conclusion that his guilty
plea was constitutionally valid.
Further, Hampton’s attorney
stated to the trial court that Hampton understood the nature of
the charges against him.
Thus, we conclude that the trial court
properly determined that Hampton’s plea of guilty was knowingly,
intelligently, and voluntarily entered.
Based on the foregoing reasons, the judgment and
sentence of the Pike Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Dennis Stutsman
Samual Potter
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General
Wm. Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky
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