MICHAEL TODD DIXON ON REMAND OF KENTUCKY v. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 30, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-000014-MR
MICHAEL TODD DIXON
APPELLANT
ON REMAND FROM SUPREME COURT OF KENTUCKY
NO. 2002-SC-001061-DG
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
INDICTMENT NO. 01-CR-00144
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE and MINTON, Judges; EMBERTON, Senior Judge.1
MINTON, Judge:
Circuit
Court
controlled
1
Michael Todd Dixon pled guilty in the McCracken
to
two
substance
counts
and
of
one
first-degree
count
of
possession
possession
of
of
a
drug
Senior Judge Thomas D. Emberton sitting as Special Judge by
assignment of the Chief Justice pursuant to Section 110(5)(b) of the
Kentucky Constitution and KRS 21.580.
paraphernalia.
The circuit court sentenced him in accordance
with a plea bargain agreement to a maximum sentence of five
years,
Dixon
which
to
the
court
forfeit
the
probated
cocaine,
seized when he was arrested.
denial
of
a
McCracken
motion
for
for
drug
years
and
paraphernalia,
ordered
and
cash
Dixon appeals the circuit court’s
pretrial
Commonwealth’s
three
diversion,
Attorney
refused
arguing
to
give
that
the
Dixon’s
pretrial diversion motion good faith consideration as required
by law.
A
panel
of
this
court
in
an
opinion
rendered
November 15, 2002, vacated the judgment, concluding that “[t]he
McCracken Commonwealth’s Attorney failed to fulfill the duties
required of his office by KRS 533.250(2) and KRS 533.252,” and
that he did so by “refusing to submit recommendations concerning
Dixon’s
pretrial
diversion
application.”
This
court’s
prior
opinion further directed that on remand the circuit court give
no
credence
pretrial
to
the
diversion
section
protocol
of
the
that
Second
required
Judicial
the
consent for the grant of pretrial diversion.
Circuit’s
Commonwealth’s
The Supreme Court
of Kentucky, in an order entered December 11, 2003, vacated this
Court’s
previous
opinion
and
directed
us
to
reconsider
this
appeal in the light of its decision in Flynt v. Commonwealth.2
2
Ky., 105 S.W.3d 415 (2003).
-2-
Dixon was indicted by the McCracken County Grand Jury
on June 9, 2001, on the charges of first-degree trafficking in a
controlled substance,3 first-degree possession of a controlled
substance,4
and
possession
of
paraphernalia.5
drug
The
Commonwealth alleged that Dixon sold cocaine on March 22, 2001,
to
a
confidential
Police Department.
informant
who
was
working
for
the
Paducah
Dixon pled not guilty to these charges at
arraignment on June 11, 2001.
On August 17, 2001, Dixon filed a motion for pretrial
diversion
and
a
separate
motion
to
enter
a
plea
of
guilty,
having reached a plea bargain agreement with the Commonwealth.
The plea agreement states that the Commonwealth agreed to amend
the trafficking charge to a lesser charge of possession.
plea
of
guilty
to
all
charges,
as
amended,
the
On a
Commonwealth
agreed further to recommend a maximum sentence of five years on
the cocaine possession charges, to be served concurrently, and
12 months on the paraphernalia charge, also to run concurrently.
The Commonwealth further insisted on forfeiture of all items
seized
at
arrest.
pretrial diversion.
3
4
5
The
plea
agreement
makes
no
mention
of
Dixon pled guilty on August 17, 2001; and
Kentucky Revised Statute (KRS) 218A.1412.
KRS 218A.1415.
KRS 218A.500(2).
-3-
the Court’s order accepting the guilty plea makes no mention of
pretrial diversion.6
When the case was called for sentencing on December 3,
2001, Dixon’s counsel mentioned the pending pretrial diversion
motion.
Dixon’s counsel observed, “It is my understanding that
the Commonwealth will never recommend or participate in pretrial
diversion.”
Without
response
to
that
statement
from
the
Commonwealth’s Attorney or further comment from the sentencing
judge,
the
circuit
immediately
to
court
sentence
denied
Dixon
in
the
motion
accordance
and
with
proceeded
the
plea
agreement.
On
appeal,
Dixon
argued
that
the
Commonwealth’s
consent to a pretrial diversion is not necessary and that the
Commonwealth
had
a
blanket
policy
of
refusing
to
pretrial diversion in certain categories of cases.
consider
After our
Supreme Court’s ruling in Flynt established that “KRS 533.250(2)
authorizes
diversion
circuit
only
courts
with
the
to
grant
applications
Commonwealth’s
for
agreement,”7
pretrial
and
the
remand to this Court, we ordered supplemental briefs confined to
the issue of “whether the McCracken Commonwealth’s Attorney’s
policy
of
refusing
to
participate
in
any
pretrial
diversion
program is a failure to perform the duties of office required by
6
The record on appeal does not contain a videotape of the guilty
plea colloquy.
7
105 S.W.3d at 424.
-4-
KRS 533.250(2) and KRS 533.252 with respect to Dixon’s pending
criminal case.”
The Commonwealth has consistently argued, both
in its original brief and on supplemental brief, that neither
the existence of this alleged blanket policy of nonparticipation
in pretrial diversion nor the alleged failure of the McCracken
Commonwealth’s Attorney to respond to Dixon’s pretrial diversion
motion was raised in the circuit court.
The Commonwealth posits
that Dixon presented these arguments for the first time in his
brief.
Hence, the issue is not properly preserved for appeal.
From our review of this record, the Commonwealth is correct.
“Ordinarily, a trial court cannot be held in error for
having failed to do something it was not asked to do.”8
of
the
record
participation
confirms
in
Dixon’s
that
the
pretrial
Commonwealth’s
diversion
never mentioned to the trial court.
v.
Commonwealth,9
"The
policy
Attorney’s
application
was
There was nothing said
about the existence of a blanket policy either.
Turner
A review
of
As stated in
[Kentucky
Rule
of
Criminal Procedure] 9.22 and 10.12 is to require a defendant in
a criminal case to present to the trial court those questions of
law
which
may
become
issues
on
appeal.
The
appellate
court
reviews for errors, and a nonruling is not reviewable when the
issue has not been presented to the trial court for decision."
8
9
Arnold v. Commonwealth, Ky., 421 S.W. 2d 366, 367 (1967).
460 S.W.2d 345, 346 (1970).
-5-
Therefore, we hold that Dixon has failed to preserve this issue
for review.
The
Commonwealth
has
also
argued
persuasively
that
Dixon’s unconditional guilty plea to a valid criminal charge
constitutes not only an admission of guilt but also a waiver of
any defenses to the resulting conviction, such as a claim to
entitlement to a pretrial diversion.
Because we have affirmed
on other grounds, it is not necessary for us to pursue this
argument further.
For
the
reasons
stated
above,
the
judgment
McCracken Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Mark Lane Ashburn
Paducah, Kentucky
Albert B. Chandler, III
ATTORNEY GENERAL
Matthew D. Nelson
ASSISTANT ATTORNEY GENERAL
Frankfort, Kentucky
-6-
of
the
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