JONES (WILLIAM) VS. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: JULY 16, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000710-MR
WILLIAM JONES
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE A.C. MCCAY CHAUVIN, JUDGE
ACTION NO. 06-CR-002463
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART,
VACATING IN PART AND REMANDING
** ** ** ** **
BEFORE: CAPERTON AND MOORE, JUDGES; BUCKINGHAM,1 SENIOR
JUDGE.
BUCKINGHAM, SENIOR JUDGE: William Jones appeals from an order of the
Jefferson Circuit Court convicting him of various crimes and of being a persistent
felony offender (“PFO”) in the first degree and sentencing him to twelve years’
1
Senior Judge David C. Buckingham 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.
imprisonment. We vacate Jones’s PFO conviction and remand to the trial court for
further proceedings, but we affirm Jones’s convictions and sentences on the
remaining counts.
Jones was arrested and charged with one count of second-degree
robbery, one count of first-degree wanton endangerment, three counts of thirddegree terroristic threatening, and one count of fourth-degree assault in connection
with an altercation with his then-girlfriend. Jones was later charged with being a
PFO in the first degree, and this charge was consolidated with his other charges.
The Commonwealth subsequently made a written offer to Jones upon
a plea of guilty, which he accepted. The Commonwealth recommended a five-year
sentence, with Jones being ineligible for probation. The Commonwealth did not
oppose Jones being released on the home incarceration program (“HIP”) pending
final sentencing. If Jones violated the terms of the HIP, picked up any new arrests,
contacted the victim, failed to complete the pre-sentence investigation report, or
failed to appear for sentencing, the offer stated that Jones agreed “to amend [the]
guilty plea to include a plea on [the] PFO I [charge],” which would enhance his
prison term to fifteen years. On the plea offer document, the Commonwealth had
written “dismissed” next to the PFO I charge. Jones also reserved the right to
appeal under the plea offer.
Jones thereafter appeared in court on the motion to enter a guilty plea.
The court asked Jones how he pled to the charge of one count of second-degree
robbery, one count of first-degree wanton endangerment, three counts of third-2-
degree terroristic threatening, and one count of fourth-degree assault. Jones
responded that he was guilty.
The court next questioned Jones concerning the PFO charge, asking
Jones the following:
Mr. Jones, do you acknowledge that you . . . do qualify to
be prosecuted as a persistent felony offender in the first
degree, as set out in the indictment.
(Emphasis added). Jones responded in the affirmative. The court stated in its
discussion with Jones that Jones was “technically” pleading guilty on that day to
“everything” and that, at the time of sentencing, the Commonwealth “would move
to dismiss the PFO I [charge] at that point,” so long as Jones complied with the
conditions of his release and the terms of the plea agreement. Jones agreed that
this was the deal that he had made with the Commonwealth.
The court found that Jones was making the guilty plea voluntarily, and
it accepted his pleas. Thereafter, the court entered a written judgment on the guilty
pleas stating that Jones had entered pleas of guilty and was adjudged guilty of one
count of second-degree robbery, one count of first-degree wanton endangerment,
three counts of third-degree terroristic threatening, and one count of fourth-degree
assault. The judgment also stated, however, that the PFO charge had been
dismissed.2 Entry of the judgment imposing Jones’s sentence was postponed
pending the final sentencing hearing.
2
The order of commitment entered when Jones entered the guilty pleas also stated that the PFO
charge had been dismissed.
-3-
Jones subsequently failed to appear at the final sentencing hearing.
The court issued an arrest warrant, and Jones was thereafter arrested.3 When Jones
was brought to the courthouse for final sentencing, he was initially placed in a
holding cell. After conferring with his attorney, he refused to come into the
courtroom to be sentenced. The court then sentenced Jones in absentia to twelve
years’ imprisonment.4
The court later entered a judgment of conviction and sentence. In this
judgment, the court stated that Jones had pled guilty to the PFO charge, although in
both the Commonwealth’s offer on a plea of guilty and in the court’s written
judgment on the guilty plea, it was stated that the PFO charge had been dismissed.
The court adjudged Jones guilty of all charges, including the PFO charge, and
sentenced Jones to an enhanced term of twelve years. Jones thereafter filed this
appeal.
Jones first argues that the trial court’s judgment sentencing him on the
PFO charge violated state and federal due process because Jones never pled guilty
to, nor was he found guilty of, being a PFO. One’s ability to attack an
unauthorized sentence is never relinquished or forfeited by a failure to object at the
trial court level, and the imposition of an unauthorized sentence is an error
correctable by appeal. Myers v. Commonwealth, 42 S.W.3d 594, 596 (Ky. 2001),
3
Both the bench warrant as well as the arrest citation listed Jones’s charges, but failed to include
any mention of the PFO offense.
4
The plea agreement provided that the sentence would be enhanced to fifteen years, but the
court reduced it to twelve years.
-4-
overruled on other grounds by McClanahan v. Commonwealth, 308 S.W.3d 694
(Ky. 2010); Wellman v. Commonwealth, 694 S.W.2d 696, 698 (Ky. 1985).
Jones argues that his case is “nearly identical” to O’Neil v.
Commonwealth, 114 S.W.3d 860 (Ky. App. 2003). O’Neil was charged with
burglary in the second degree, possession of a handgun by a convicted felon, and
being a PFO in the second degree. He pled guilty to the first two charges and
agreed to assist authorities in retrieving the stolen property. In return, the
Commonwealth agreed to recommend dismissal of the PFO charge at the time of
sentencing. If O’Neil failed to cooperate or appear for sentencing, the
Commonwealth would object to probation and O’Neil would plead guilty to the
PFO charge. In effect, the PFO charge was held in abeyance pending O’Neil’s
sentencing. O’Neil failed to appear for sentencing, and when he was finally
brought before the court, he acknowledged that he had pled guilty to the two
charges but refused to plead guilty to the PFO charge, claiming that he thought the
charge had been dismissed.
A panel of this Court determined that although the trial court had
engaged in a Boykin colloquy concerning the two charges to which O’Neil initially
pled guilty, the trial court never engaged in a similar discussion concerning the
PFO charge. The Court, in particular, stated:
Upon appellant’s motion to plead guilty to burglary and
handgun possession, the trial court held a hearing where
it engaged in a thorough Boykin colloquy with appellant
concerning these two charges. However, the record
further reveals that at no time did the trial court ever
-5-
engage in a similar discussion concerning the PFO.
Instead, the court entered a guilty plea to this charge in
spite of appellant’s refusal to do so himself.
....
By entering a judgment summarily convicting and
sentencing appellant as a PFO, the trial court denied
appellant the right to exercise “the full panoply of the
relevant protections which due process guarantees in
state criminal proceedings.” Specht v. Patterson, 386
U.S. 605, 609, 87 S.Ct. 1209, 1212, 18 L.Ed.2d 326, 330
(1967) (citation omitted).
O’Neil, 114 S.W.3d at 863. Therefore, the Court vacated O’Neil’s PFO conviction
because O’Neil never pled guilty to that charge. Id.
Here, both the written and videotaped record are not entirely clear as
to whether Jones pled guilty to the PFO charge on the date of the plea hearing,
whether the PFO charge was dismissed on the date of the plea hearing, or whether
the PFO charge was to be held in abeyance until Jones’s sentencing hearing and
then dismissed at that time if Jones met all the conditions imposed by the court. At
one point during the videotape of the plea hearing, the trial court states that the
Commonwealth was moving to dismiss the PFO charge, while at another time the
trial court states that Jones was pleading guilty to “everything” that day and that
the PFO charge would be held in abeyance and dismissed at the final sentencing
hearing if Jones had met all the required conditions.
However, the latter statement is not what appears to have occurred.
While the court asked Jones if he pled guilty to the underlying charges, the court
never asked him how he pled to the PFO charge, asking only if he acknowledged
-6-
that he qualified to be prosecuted as a first degree PFO as set out in the indictment.
As in O’Neil, nowhere in the colloquy did Jones state that he pled guilty to the
PFO charge. An acknowledgement that you can be prosecuted for an offense is not
a plea of guilt to that offense.
Additionally, almost every written record of the proceedings indicates
that the PFO charge was dismissed on the day that Jones pled guilty to the other
charges. Once Jones failed to appear at sentencing, the charge was somehow
reinstated, and Jones was found guilty of the charge without having pled guilty to
or having been convicted of the charge.
The Commonwealth argues that the discrepancies are the result of a
clerical error. As a general rule, an oral pronouncement is not a judgment until it is
reduced to writing. Commonwealth v. Hicks, 869 S.W.2d 35, 37 (Ky. 1994).
When there is a conflict between oral pronouncements and a written order, the
written order controls. Id. As already discussed, multiple writings state that the
PFO charge was dismissed, and the trial court never specifically asked Jones how
he pled with regard to that charge. Without more support from the record, this
Court cannot find with full certainty that any discrepancies between the trial
court’s discussions with Jones and its written judgments were due to clerical error.
Although Jones was incorrectly convicted by the trial court of being a
PFO, the fact remains that Jones violated the plea agreement by failing to appear
for his sentencing. Consequently, Jones is not entitled to enforce the plea
agreement. “[I]f a defendant materially breaches his plea agreement, the
-7-
prosecution is released from its obligations under that agreement and may bring a
new indictment on previously dismissed charges.” O’Neil, 114 S.W.3d at 863
(citing Hentz v. Hargett, 71 F.3d 1169, 1176 (5th Cir. 1996); see also United States
v. Wells, 211 F.3d 988, 995 (6th Cir. 2000) (“a defendant who breaches a plea
agreement forfeits any right to its enforcement”)). As stated in O’Neil:
[W]e conclude that when a defendant breaches a plea
agreement, the Commonwealth has the option of
withdrawing its offer and proceeding upon the charges in
the original indictment, or it may reindict if those charges
have already been dismissed in connection with the plea
agreement.
O’Neil, 114 S.W.3d at 864.
Jones further argues that all of his sentences should be vacated
because he was sentenced in absentia. Under Kentucky Rules of Criminal
Procedure (RCr) 8.28(1), upon a hearing and finding by the trial court that a
defendant intentionally refuses to appear for any proceeding, such refusal shall be
deemed a waiver of the defendant’s right to appear at that proceeding.
The trial court did not err when it found that Jones had voluntarily
absented himself from the sentencing hearing. Jones refused to appear in the
courtroom when directed to do so, was disruptive in the holdover room, and stated
that he had flushed the PSI down the toilet. Defense counsel talked to Jones more
than once on the morning of the sentencing to discuss the legal issues and to
encourage Jones to appear for sentencing. Moreover, the trial court directed
defense counsel to explain to Jones that it would be a good idea for Jones to be
-8-
present in the courtroom. Based on the totality of the circumstances, the trial court
made a finding that Jones voluntarily refused to appear; thus, Jones’s refusal to
appear is deemed a waiver of his right to appear.
Jones further argues that the right to be in attendance at all critical
proceedings cannot be knowingly, intelligently, and voluntarily waived by
someone who is incompetent at the time. However, although Jones was diagnosed
with bipolar disorder, nothing in the record suggests that Jones ever had difficulty
perceiving reality or that he had a mental illness which prevented him from
comprehending the nature of the charges against him, his particular legal situation,
and legal issues in general. In fact, a review of the record shows that Jones was
interested in his case moving forward as expeditiously as possible with a trial date.
Accordingly, we vacate Jones’s PFO conviction and remand to the
Jefferson Circuit Court for further proceedings. We affirm Jones’s convictions on
the remaining counts.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Brandon Neil Jewell
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Susan Roncarti Lenz
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.