DAVIS (LAQUITA MARIE) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: NOVEMBER 13, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001636-MR
LAQUITA MARIE DAVIS
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE SUSAN SCHULZ GIBSON, JUDGE
ACTION NO. 05-CR-001579
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON AND DIXON, JUDGES; HENRY,1 SENIOR JUDGE.
HENRY, SENIOR JUDGE: Laquita Marie Davis appeals from orders of the
Jefferson Circuit Court which rescinded her placement in pre-trial diversion and
imposed a probated sentence of three years. Davis argues that the trial court: (1)
improperly incorporated a provision of her plea agreement into the terms of her
1
Senior Judge Michael L. Henry 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.
pre-trial diversion order; (2) failed to make sufficient written findings to justify the
revocation of diversion; and (3) erroneously denied her request to withdraw her
plea of guilty and proceed to trial. We affirm.
In May 2005, Davis was indicted in Jefferson Circuit Court for
trafficking in a controlled substance in the first degree, a Class C felony, and for
illegal use or possession of drug paraphernalia, a Class A misdemeanor. She
entered into a plea agreement with the Commonwealth, under which the trafficking
charge was amended to a possession charge, a Class D felony. The
Commonwealth recommended that the trial court impose a three-year sentence for
the illegal possession charge and a twelve-month sentence for the illegal
possession of drug paraphernalia charge, to be run concurrently. The
Commonwealth also recommended that Davis be placed on pre-trial diversion. In
exchange, Davis agreed to forfeit all items seized and to “testify truthfully and
completely (in case wherein previously provided cooperation).” The trial court
accepted the plea and entered an order finding Davis guilty of the two charges and
also stating “Commonwealth recommends pre-trial diversion. Defendant agrees to
forfeit all items seized and she agrees to testify truthfully and completely in the
case herein.” On December 9, 2005, the trial court granted Davis pre-trial
diversion for a period of five years under the supervision of the Probation and
Parole Office.
More than two years later, on May 1, 2008, the Commonwealth filed a
motion to remove Davis from the diversion program because she had informed the
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Commonwealth that she did not intend to testify as she had agreed. At the hearing
on the motion, Davis agreed that her refusal to testify constituted a breach of her
plea agreement, but that the breach had to be resolved against the party (the
Commonwealth) which had drafted the agreement and that she should be allowed
to withdraw her plea. Davis further argued that the agreement to testify was a
condition of the plea agreement and not a condition of diversion and that therefore
the remedy was not to revoke diversion but to allow Davis to withdraw the plea.
The trial court ruled that by refusing to testify, Davis was responsible
for the breach of the terms of the plea agreement and would not be allowed to
withdraw her plea. Further, the court held that because the agreement to testify
was a condition of diversion, Davis had violated the terms of her diversion. The
trial court imposed a sentence of three years to be probated for five years, and a
fine of $1000. This appeal followed.
Davis’s first argument is that she was under no obligation to testify as
a condition of diversion because, while the condition that she “testify truthfully and
completely (in case wherein previously provided cooperation)” was included as a
condition of her guilty plea, it was 1) not expressly included in the
Commonwealth’s written diversion recommendation; 2) not a condition of
diversion as imposed at the hearing granting diversion; and 3) not in the trial
court’s order granting pretrial diversion. She argues that her refusal to testify was
not a post-conviction violation of her pre-trial diversion agreement but a material
breach of the plea agreement.
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Under KRS 533.030(5), a statute pertaining to probation and
conditional discharge, which is made applicable to pretrial diversion under KRS
533.254(2), “When a defendant is sentenced to probation or conditional discharge,
he shall be given a written statement explicitly setting forth the conditions under
which he is being released.”
We agree with the Commonwealth that the pretrial diversion order
was part and parcel of the plea agreement. The fact that the condition was not
restated in the pretrial diversion order did not eliminate Davis’s duty to perform the
condition.
Furthermore, pre-trial diversion differs significantly from probation,
because it “essentially delays the final adjudication of a criminal complaint against
a defendant.” Commonwealth v. Lopez, 267 S.W.3d 685, 689 (Ky. App. 2008).
. . . KRS 533.250 diversion cannot be characterized as
simply a sentencing alternative – akin to a sentence of
probation or conditional discharge – which is available
for the trial court’s consideration. The most significant
distinguishing feature is that, unlike a sentence of
imprisonment, probation, or conditional discharge,
admission into a diversion program permits a defendant
who successfully completes diversion to avoid a felony
conviction entirely. And, we conclude that this
interruption of prosecution prior to final disposition
requires the Commonwealth’s agreement.
Flynt v. Commonwealth, 105 S.W.3d 415, 424 (Ky. 2003).
In effect, therefore, Davis’s felony conviction was held in suspension
while she participated in the pretrial diversion program. When she violated the
terms of the plea agreement, the Commonwealth was free to demand enforcement
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of the agreement. In effect, Davis was returned to the position she would have
been in had she breached the plea agreement immediately after she agreed to it.
“[F]ollowing a defendant’s breach of a plea agreement, the Commonwealth was
relieved of its obligation to recommend favorable sentencing.” O’Neil v.
Commonwealth, 114 S.W.3d 860, 864 (Ky. App. 2003).
Davis next argues that the trial court abused its discretion in failing to
make written findings to support its revocation of diversion as required to satisfy
minimal due process requirements. These requirements consist of the following:
(a) written notice of the claimed violations of
[probation]; (b) disclosure to the [probationer] of
evidence against him; (c) opportunity to be heard in
person and to present witnesses and documentary
evidence; (d) the right to confront and cross-examine
adverse witnesses (unless the hearing officer specifically
finds good cause for not allowing confrontation); (e) a
“neutral and detached” hearing body such as a traditional
parole board, members of which need not be judicial
officers or lawyers; and (f) a written statement by the
factfinders as to the evidence relied on and reasons for
revoking [probation].
Robinson v. Commonwealth, 86 S.W.3d 54, 56 (Ky. App. 2002) (quoting
Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)).
Davis’s argument is unpreserved for appeal because she did not
request additional written findings under Kentucky Rules of Civil Procedure (CR)
52.04. See Kentucky Rules of Criminal Procedure (RCr) 13.04. She nonetheless
argues that under Murphy v. Commonwealth, 551 S.W.2d 838, 841 (Ky. App.
1977), an objection was not necessary to preserve the alleged error. Murphy is
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distinguishable, however, because the defendant in that case received no notice
whatsoever of the revocation proceeding against him. By contrast, Davis was
present to hear the Commonwealth’s evidence, and the comments of the trial
judge, and she acknowledges that the trial court made an oral finding on the record
that the only condition of diversion violated by Davis was her refusal to testify.
Under these circumstances, we conclude that Davis’s due process rights were not
violated. See United States v. Copley, 978 F.2d 829, 831-32 (4th Cir.1992) (“a
transcribed oral finding can serve as a ‘written statement’ for due process purposes
when the transcript and record compiled before the trial judge enable the reviewing
court to determine the basis of the trial court’s decision.”); United States v. Gilbert,
990 F.2d 916, 917 (6th Cir.1993); United States v. Copeland, 20 F.3d 412, 414-15
(11th Cir.1994).
Finally, Davis argues that the trial court abused its discretion in
refusing to allow her to withdraw her guilty plea. She claims that the plea
agreement was ambiguous because it did not specify the substance of the testimony
she was to provide, and that she and the Commonwealth disagreed on the content
of the testimony when they met in December 2007, two years after entry of the
plea and diversion agreement. She contends that ambiguity in a contract should
always be construed against the drafter, in this case, the Commonwealth.
It was abundantly clear at the hearing, however, that the content of
Davis’s testimony was not at issue. The Commonwealth Attorney stated that he
was satisfied if Davis was willing to take the stand, because she could be
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impeached if she didn’t testify truthfully as she had agreed. The problem, from the
Commonwealth’s viewpoint, was that Davis refused to testify at all. “[T]he
permission to withdraw a guilty plea and substitute a plea of not guilty is a matter
within the sound discretion of the trial court.” Anderson v. Commonwealth, 507
S.W.2d 187, 188 (Ky. 1974). As there was no ambiguity regarding Davis’s
obligation under the agreement, the trial court did not abuse its discretion in ruling
that she had violated the plea agreement and was therefore not entitled to withdraw
her plea.
The Jefferson Circuit Court order rescinding diversion and the final
judgment imposing a three-year probated sentence are affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ramon McGee
Louisville, Kentucky
Jack Conway
Attorney General of Kentucky
David B. Abner
Assistant Attorney General
Frankfort, Kentucky
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