JAMES KOPP v. COMMONWEALTH OF KENTUCKY
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RENDERED: April 16, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2002-CA-001629-MR
JAMES KOPP
APPELLANT
APPEAL FROM MARSHALL CIRCUIT COURT
HONORABLE DENNIS R. FOUST, JUDGE
ACTION NO. 98-CR-00095
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
EMBERTON, CHIEF JUDGE; DYCHE AND TACKETT, JUDGES.
TACKETT, JUDGE:
James Kopp appeals from a judgment and sentence
on a plea of guilty whereby he was sentenced to two years’
imprisonment after allegedly failing to abide by the conditions
of a deferred sentencing agreement.
The Commonwealth moved to
impose sentence on Kopp due to his alleged commission of a new
alcohol related offense.
No hearing was held to establish
whether there was probable cause to believe Kopp had committed
another offense.
In light of the trial court’s failure to
comply with the provisions of Kentucky Revised Statute (KRS)
533.050, we vacate and remand this matter for a hearing to
determine whether, in fact, Kopp was in violation of his
deferred sentencing agreement.
Kopp, a resident of Illinois, was involved in a single
car accident on an exit ramp from the Purchase Parkway onto I-24
in Marshall County, on March 22, 1998.
Investigating officers
detected a strong smell of alcohol, and Kopp failed a series of
field sobriety tests.
In addition, Kopp falsely identified
himself to police officers as Ricky Kopp and he had a driver’s
license and a signed rental agreement for the car he was driving
in that name.
He was arrested and charged with criminal
possession of a forged instrument, first offense DUI, possession
of marijuana, refusal to take a blood alcohol test, presenting
another person’s license, giving officers a false name, and
driving under the influence on a suspended license.
An
additional count of first-degree bail jumping was added to these
charges at the time of indictment.
On December 12, 1998, Kopp entered guilty pleas on all
of the charges.
The trial court deferred accepting his plea for
a period of two years on the condition that Kopp fulfill a list
of several conditions.
Upon successful completion of the two-
year period, the charges against Kopp would be dismissed.
Less
than one year later, the Commonwealth filed a motion asking the
trial court to set aside the deferred sentencing agreement on
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the grounds that Kopp had allegedly been charged with DUI.
A
copy of the motion was sent, regular mail, to an invalid address
in Michigan, and Kopp claims he had no notice that the
Commonwealth was seeking to have him sentenced.
The trial court
revoked Kopp’s deferred sentence and issued a bench warrant for
Kopp on September 7, 1999, when he failed to appear at a hearing
regarding the allegation of a new criminal offense. Kopp was
eventually arrested and spent over fifty days in jail before his
first court appearance on April 15, 2002.
On May 28, 2002, the
trial court entered an order which stated its belief that KRS
533.050 did not apply and scheduled Kopp for final sentencing on
July 1, 2002.
Kopp was sentenced to two years’ imprisonment,
and this appeal followed.
Kopp first argues that the trial court had lost
jurisdiction, pursuant to KRS 533.020, to sentence him to
imprisonment.
The language of the statute specifically provides
that a defendant who completes his period of probation or
conditional discharge shall be discharged from the trial court’s
supervision “provided no warrant issued by the court is pending
against him.”
Kopp pled guilty in December 1998 and his
deferral period was two years.
The trial court issued a bench
warrant for his failure to appear at a hearing to determine
whether he had violated the terms of his deferred sentencing
agreement in September 1999.
Consequently, when Kopp’s deferred
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sentencing agreement expired in December 2000, there was already
a warrant for his arrest pending, and the trial court still had
jurisdiction to impose sentence on him.
Kopp next argued that the trial court improperly
issued a bench warrant for him without following the conditions
set forth in KRS 533.050 which states as follows:
(1)
At any time before the discharge of the
defendant or the termination of the
sentence of probation or conditional
discharge:
(a) The court may summon the defendant
to appear before it or may issue a
warrant for his arrest upon a
finding of probable cause to
believe that he has failed to
comply with a condition of the
sentence, or
(b) A probation officer or peace
officer acting at the direction of
the probation officer, who sees
the defendant violate the terms of
his probation or conditional
discharge may arrest the defendant
without a warrant. . . .
Kopp contends that the trial court had no notice of the
allegations against him and that testimony of a law enforcement
officer who witnessed him violating the conditions of his
deferred sentencing agreement was necessary prior to issuing a
bench warrant.
On August 19, 1999, the Commonwealth tendered a
motion alleging that Kopp had been arrested in Michigan and
charged with felony DUI.
This allegation, if true, would
support revocation of his deferred sentence and imposition of a
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sentence of imprisonment.
The motion was set for hearing on
September 7, 1999, and when Kopp failed to appear at the
hearing, a bench warrant was issued to compel his attendance
before the trial court. Contrary to Kopp’s assertion, the trial
court had notice of the allegation against him; namely, that he
had committed another DUI. Moreover, the statute does not
require testimony from a law enforcement officer prior to
issuing a bench warrant for an alleged violation.
Consequently,
the trial court acted properly to secure Kopp’s appearance in
order to address the allegation that he had violated his
deferred sentencing agreement.
Finally, Kopp argues that the trial court violated his
due process right by failing to inform him of the nature of the
allegation against him and failing to hold an evidentiary
hearing prior to sentencing him.
In order to satisfactorily
address this issue, we must first consider the nature of Kopp’s
sentence.
There is no provision in the felony sentencing
statute for a deferred sentence; thus, we must examine the trial
court’s December 1998 order to determine how it intended to
dispose of Kopp’s charges.
Kopp argues that he received a
conditionally discharged sentence.
KRS 533.050(2) specifically
states as follows:
The court may not revoke or modify the
conditions of a sentence of probation or
conditional discharge except after a hearing
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with defendant represented by counsel and
following a written notice of the grounds
for revocation or modification.
Consequently, if Kopp’s sentence was conditionally discharged,
the trial court was required to hold a hearing to prior to
imposing sentence on him.
The Commonwealth, on the other hand, refers to Kopp’s
sentence as a pretrial diversion.
KRS 533.250, which was
enacted on July 15, 1998, established the pretrial diversion
program.
Pretrial diversion was available to persons charged
with a Class D felony who would also qualify for probation or
conditional discharge.
In order to participate in pretrial
diversion, a defendant must enter a guilty plea or an Alford
plea to the offenses charged.
KRS 533.258(1) states that when a
defendant “successfully completes the provisions of a pretrial
diversion agreement, the charges against the defendant shall be
listed as ‘dismissed-diverted’ and shall not constitute a
criminal conviction.”
The order of deferred sentencing entered by the trial
court on December 9, 1998, states that the court rejects Kopp’s
plea of guilty to the charged offenses.
It then goes on to
provides a list of conditions which Kopp is required to comply
with for a period of two years.
This includes the requirement
that Kopp commit no new offenses.
If Kopp satisfactorily abides
by all of the conditions in the agreement during the two-year
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period, the charges against him will be dismissed. If he fails
to do so, then the trial court will accept his guilty pleas to
all charges and impose a sentence of imprisonment.
Although
Kopp, through his counsel, requested a hearing on the
Commonwealth’s motion to revoke his diversion agreement, the
trial court denied Kopp’s request.
In an order setting Kopp’s
case for final sentencing on July 1, 2002, the trial court
stated its belief that the revocation hearing provisions of KRS
533.050, which deals with probated and conditionally discharged
sentences, did not apply to Kopp’s case.
However, in the section of KRS 533 dealing with
diversion there is a provision, KRS 533.256, outlining the
procedure for sentencing defendants who fail to complete their
pretrial diversion agreements.
Subsection (1) allows the
Commonwealth to request a hearing in the trial court to
determine whether a defendant has failed to complete diversion
and to impose sentence if the court determines that such a
failure has occurred.
Subsection (2) states as follows:
In making a determination as to whether or
not a pretrial diversion agreement should be
voided, the court shall use the same
criteria as for the revocation of probation,
and the defendant shall have the same rights
he or she would if probation revocation was
sought.
Therefore, regardless of whether Kopp’s sentence should be
characterized as a conditional discharge or a pretrial
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diversion, Kopp was entitled to have the court follow the
procedures in KRS 533.050.
Subsection (2) specifically entitled
Kopp to a hearing prior to revocation of his deferred sentence.
Thus, the trial court’s belief that KRS 533.050 did not apply
was erroneous, and the trial court was required to hold a
hearing prior to revoking Kopp’s deferred sentence.
For the forgoing reasons, the judgment of the circuit
court accepting Kopp’s guilty plea and sentencing him to two
years’ imprisonment is vacated and this case is remanded for a
hearing, in accordance with KRS 533.050, to determine whether
Kopp failed to comply with the provisions of his diversion
agreement.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Lisa Bridges Clare
Dennis Stutsman
Assistant Public Advocates
Frankfort, Kentucky
Albert B. Chandler, III
Attorney General of Kentucky
Matthew D. Nelson
Assistant Attorney General
Frankfort, Kentucky
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