RAMSEY (GARY) VS. COMMONWEALTH OF KENTUCKY

 Annotate this Case
Download PDF
RENDERED: NOVEMBER 25, 2009; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2008-CA-001289-MR GARY RAMSEY v. APPELLANT APPEAL FROM PULASKI CIRCUIT COURT HONORABLE JEFFREY T. BURDETTE, JUDGE ACTION NO. 08-CR-00046 COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: COMBS, CHIEF JUDGE; THOMPSON, JUDGE; HARRIS,1 SENIOR JUDGE. THOMPSON, JUDGE: Gary Ramsey appeals from the judgment of the Pulaski Circuit Court following a guilty plea to flagrant non-support. For the reasons stated herein, we affirm. 1 Senior Judge William R. Harris sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580. On February 26, 2008, Ramsey was indicted by a Pulaski County grand jury for one count of flagrant non-support, a Class D felony. Several weeks later, Ramsey pled guilty and agreed to pay restitution in exchange for the Commonwealth’s recommendation of a three-year probated sentence. The Commonwealth’s sentencing recommendation was expressly conditioned on Ramsey’s compliance with the law during his release until sentencing. While awaiting sentencing, Ramsey was arrested for driving under the influence (DUI), third offense; assault in the fourth degree; and resisting arrest. After receiving notification of Ramsey’s arrest, the Commonwealth withdrew its recommendation of probation pursuant to the terms of the plea agreement. At his sentencing hearing, the Commonwealth called the arresting officer who testified that he encountered Ramsey passed out behind the steering wheel of a vehicle, shook him until he awakened, smelled alcohol and observed slurred speech, and then subdued Ramsey after Ramsey engaged him in a physical scuffle. Ramsey, who did not testify, contended that the allegations introduced by the Commonwealth could not constitute a violation of the conditions of his plea agreement because they were merely unproven criminal charges, not convictions. However, the trial court stated that probable cause existed to support a finding that Ramsey breached a term of his plea agreement by violating the law. Ramsey then moved to withdraw his guilty plea, but the trial court denied his motion and sentenced him to three-years’ imprisonment and denied probation. This appeal followed. -2- Ramsey argues that the trial court erred by permitting the Commonwealth to withdraw its recommendation of probation based on mere criminal charges. He argues that only criminal convictions can support such an adverse finding rather than mere allegations of criminal conduct. Additionally, Ramsey argues that the trial court applied an incorrect legal standard for finding him in violation of a condition of his plea agreement. Thus, he argues that his conviction should be reversed. We disagree. Once accepted by a trial court, a plea agreement is a binding contract between a defendant and the Commonwealth. Hensley v. Commonwealth, 217 S.W.3d 885, 887 (Ky.App. 2007). When courts interpret and enforce plea agreements, they must use traditional principles of contract law in determining the obligations of the contracting parties. Elmore v. Commonwealth, 236 S.W.3d 623, 626 (Ky.App. 2007). Notwithstanding this rule, due process considerations are necessarily implicated in analyzing plea agreements due to a defendant’s waiver of fundamental constitutional rights by his acceptance of the plea. Id. When a defendant breaches his plea agreement, he relinquishes his right to have the terms of the plea agreement strictly enforced by the trial court. O'Neil v. Commonwealth, 114 S.W.3d 860, 863 (Ky.App. 2003). If the prosecution’s sentencing recommendation is conditioned on a defendant’s promise to adhere to good conduct, the defendant’s failure to adhere to his promise releases the prosecution from its obligation to recommend the lighter sentence. Jones v. Commonwealth, 995 S.W.2d 363, 366 (Ky. 1999). -3- Ramsey’s plea agreement expressly provided that the prosecution’s recommendation of a three-year probated sentence was contingent upon his avoidance of any violations of the law prior to his sentencing. At the plea hearing, the parties specifically discussed Ramsey’s obligation to avoid criminal violations as a condition for the Commonwealth’s sentencing recommendation. However, five days after this hearing, Ramsey was arrested for three criminal offenses. Based on these charges, the prosecution withdrew its recommendation for a probated sentence, which was permitted by the trial court. Based on these facts, the prosecution was permitted to move for the withdrawal of its sentencing recommendation of probation and to take no position regarding the disposition of the three-year sentence. Ramsey’s violation of the law permitted the Commonwealth to withdraw its contingent promise to recommend probation. However, when the prosecution decides to retract its sentencing recommendation due to a defendant’s material and substantial breach of his plea agreement, the prosecution must prove the breach under the clear and convincing standard due to the necessity to protect a defendant’s constitutional due process rights. Elmore, 236 S.W.3d at 626 (due process implications must be considered); State v. Deilke, 274 Wis.2d 595, 605-06, 682 N.W.2d 945, 951 (Wis. 2004) (breach must be established by clear and convincing evidence). The trial court found that Ramsey breached his plea agreement under the probable cause evidentiary standard. We believe this is an insufficient standard of proof under our criminal law jurisprudence. For example, even in probation -4- revocation proceedings, the prosecution must prove its case under a higher standard than probable cause. Rasdon v. Commonwealth, 701 S.W.2d 716, 719 (Ky.App. 1986) (preponderance of the evidence standard for probation revocation hearings). The preponderance of the evidence standard is required even though probation revocation proceedings are not a part of a criminal prosecution. Robinson v. Commonwealth, 86 S.W.3d 54, 56 (Ky.App. 2002). Consequently, it logically follows that plea proceedings, which are part of a criminal prosecution, require a higher burden of proof than probable cause. “As the United States Supreme Court has noted, ‘[r]evocation [of probation] deprives an individual, not of the absolute liberty to which every citizen is entitled [emphasis added], but only of the conditional liberty properly dependent on observance of special parole restrictions.’” Id. quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). However, the trial court’s adjudication of a plea agreement, including determining whether a breach occurred, may deprive a defendant of absolute liberty by directly affecting his term of imprisonment and how it is to be served. Therefore, unlike non-criminal prosecutions in probation revocation proceedings, a trial court’s potential finding that a defendant breached his plea implicates a defendant’s absolute liberty and, thus, must be proven under the clear and convincing evidence standard. After reviewing the record, although the trial court applied an incorrect standard, we nevertheless conclude that the trial court’s findings were not erroneous. The trial court found the officer’s testimony credible and that Ramsey -5- had violated the terms of his guilty plea. The officer’s testimony was probative and substantial to a degree supporting a belief in the testimony’s veracity in the minds of ordinarily prudent-minded people. M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 117 (Ky.App.1998). Therefore, the trial court’s finding was supported under the clear and convincing standard. Ramsey’s second argument is that he should have been permitted to withdraw his plea following the finding of the plea agreement breach. He argues that the Commonwealth’s decision to withdraw its recommendation of probation and the trial court’s decision to deny him probation mandated that he be permitted to withdraw his guilty plea. We disagree. RCr 8.10 provides, in part, that “[a]t any time before judgment the court may permit the plea of guilty or guilty but mentally ill, to be withdrawn and a plea of not guilty substituted.” The decision to permit the withdrawal of a guilty plea and substitution of a not guilty plea is a matter within the sound discretion of the trial court. Anderson v. Commonwealth, 507 S.W.2d 187, 188 (Ky. 1974). A decision based on judicial discretion will not be reversed unless the decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. Lopez, 267 S.W.3d 685, 689 (Ky.App. 2008). Entered on April 11, 2008, the judgment on the guilty plea expressly conditioned the Commonwealth’s recommendation of a three-year probated sentence on Ramsey’s avoidance of criminal violations. While Ramsey maintains that the Commonwealth was required to recommend probation, such an adherence -6- is in stark contrast to the express terms of his agreement. Clearly, the Commonwealth complied with the plea agreement and could withdraw the recommendation of probation if Ramsey failed to fulfill his contractual obligations. Jones, 995 S.W.2d at 366. Further, Ramsey has not established that his plea was involuntary, which would constitutionally require the permissible withdrawal of his guilty plea. Williams v. Commonwealth, 229 S.W.3d 49, 51 (Ky. 2007). Ramsey next argues that he was denied due process of law when the trial court improperly decided that he was ineligible for probation pursuant to statute. Citing the trial court’s judgment’s designation that “[t]he defendant is not eligible for probation . . . because of the applicability of KRS 532.080 or KRS 533.060,” he argues that these statutory probation ineligibility provisions were improperly applied to him. Thus, he argues his judgment should be remanded for a reconsideration of probation. We disagree. Ramsey concedes that this issue was not preserved by a proper objection at the time of the judgment of conviction. However, because the trial court did not state this finding in open court, he argues that he was denied the opportunity to correct the error. This argument is unconvincing because Ramsey was required to file a motion pursuant to CR 59.05 to alter or amend the trial court’s judgment. Commonwealth v. Gaddie, 239 S.W.3d 59, 62 (Ky. 2007) (trial court may amend a criminal judgment during the ten days after its entry). Therefore, because Ramsey failed to request relief on a timely basis, his allegation -7- of error is unpreserved. Crane v. Commonwealth, 833 S.W.2d 813, 819 (Ky. 1992). Under Kentucky Rules of Criminal Procedure (RCr) 10.26, an appellate court may review for palpable error which affects the substantial rights of a defendant even when the error was not preserved by a proper objection. Miller v. Commonwealth, 283 S.W.3d 690, 695 (Ky. 2009). To be palpable, an error must be so easily perceptible and obvious that a “manifest injustice” would result if relief is not granted. Schoenbachler v. Commonwealth, 95 S.W.3d 830, 836 (Ky. 2003). Palpable error only exists if there is a substantial possibility that the defendant’s case would have been different absent the error. Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). Even if the trial court improperly found Ramsey ineligible for probation pursuant to KRS 532.080 and KRS 533.060, it further found that probation was not appropriate because Ramsey: (1) was a substantial risk to commit another crime; (2) was in need of correctional treatment; and (3) probation would unduly depreciate the seriousness of his crimes. Therefore, despite the error, the denial of Ramsey’s probation was supported by proper findings, and there was no palpable error. For the foregoing reasons, the Pulaski Circuit Court’s judgment is affirmed. ALL CONCUR. -8- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE: Gene Lewter Frankfort, Kentucky Jack Conway Attorney General of Kentucky Heather M. Fryman Assistant Attorney General Frankfort, Kentucky -9-

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.