TERRY McCALL v. COMMONWEALTH OF KENTUCKY
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RENDERED: May 7, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2003-CA-000253-MR
TERRY McCALL
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS J. KNOPF, JUDGE
ACTION NO. 01-CR-001144
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: BUCKINGHAM, MINTON, and TAYLOR, Judges.
MINTON, Judge:
Terry McCall appeals from a final judgment of
conviction entered by the Jefferson Circuit Court sentencing him
to ten years’ imprisonment.
McCall contends that the sentence
imposed by the Jefferson Circuit Court was in violation of his
sentencing agreement with the Commonwealth, which provided that
he would be sentenced to six years’ imprisonment if he reported
for
his
sentencing
sentencing
agreement
hearing.
by
not
Because
McCall
appearing
for
breached
his
the
scheduled
sentencing hearing, or within a reasonable time thereafter, we
affirm.
On May 9, 2001, McCall was indicted on one count of
first-degree
trafficking
in
a
controlled
substance
(KRS1 218A.1412); illegal possession of a controlled substance
(KRS 218A.1422); two counts of first-degree unlawful transaction
with a minor (KRS 530.064); and second-degree persistent felony
offender (KRS 532.080).
The
charges
resulted
from
events
which
occurred
on
March 20, 2001, at a Holiday Inn located on Dixie Highway in
Shively, Kentucky.
Police responded to a call that two juvenile
females were unlawfully in the room with adults at the motel.
Upon the officers’ arrival and entry to room 316, marijuana was
discovered on a desk in plain view along with a razor and cigar
shavings.
the
After assuring the officers’ safety and making sure
juveniles
executed.
were
After
safe,
a
a
search
complete
warrant
search
of
was
the
obtained
room,
and
police
discovered eight bindles2 of cocaine, a marijuana scale, razor
blades,
and
$586.00
in
cash.
These
items
were
seized
as
evidence.
1
Kentucky Revised Statutes.
2
A “[s]mall packet of drug powder;” Office of National Drug Control
Policy, Http://www.whitehousedrugpolicy.gov/streetterms (last visited
04/19/04).
2
Room
316
was
registered
to
co-defendant
Antonio
Carney, and McCall was present in the room with the juveniles
when the officers arrived.
The eight bindles of cocaine were
found
accompanied
in
a
pair
of
pants
with
McCall’s
wallet
containing his personal identification and the cash seized.
On
February
20,
2002,
agreement with the Commonwealth.
McCall
entered
into
a
plea
Pursuant to the plea agreement
McCall pled guilty to the amended charge of possession of a
controlled
substance;
to
the
amended
charge
of
second-degree
unlawful transaction with a minor; to possession of marijuana;
and to second-degree persistent felony offender.
Pursuant to
the agreement, McCall was to receive a total enhanced sentence
of six years’ imprisonment.
Under
the
agreement,
the
Commonwealth
objected
to
probation but agreed to McCall’s release on his own recognizance
pending
sentencing.
However,
the
agreement
provided
that
“[d]efendant agrees to serve ten years if he fails to appear for
sentencing.”
Sentencing was set for April 24, 2002.
McCall did not
appear at sentencing, and the case was passed for one day to
give McCall a chance to appear.
McCall failed to appear on
April 25, 2002, and a bench warrant was issued for his arrest.
On
September
21,
2002,
McCall
pursuant to the bench warrant.
3
was
arrested
in
Louisville
On December 17, 2002, McCall’s sentencing hearing was
finally held.
regarding
his
At the December hearing, McCall was questioned
failure
to
appear
for
sentencing
on
April
24.
McCall argued that he should be sentenced to six years rather
than ten years because he was unable to come to court on his
original sentencing date.
McCall presented medical records to
establish that he went to Caritas Medical Center on the morning
before his scheduled sentencing complaining of injuries received
during an altercation.
According to the records, McCall was
registered into the facility on April 24 at 3:17 a.m. and was
released on the same date at 6:12 a.m.
The records disclosed
that McCall had suffered multiple lacerations to the head and
forehead.
McCall stated that he called his attorney on April 25,
and
decided
that
his
situation
“didn’t
sound
good.”
McCall
claimed that following the April 24 altercation, he felt his
life and the life of his girlfriend were in danger and that they
fled to North Carolina.
McCall acknowledged that from April
until the time of his arrest in September he made no effort to
contact the court or to turn himself in.
In response, the trial court indicated that it would
not have held McCall’s failure to attend the sentencing hearing
against him if he had turned himself in rather than waiting to
be arrested.
The trial court determined that although McCall
4
was incapacitated and unable to appear in court on his scheduled
sentencing date, he thereafter made no effort to turn himself in
or to schedule a new sentencing date.
As a result, the trial
court sentenced McCall to ten years’ imprisonment pursuant to
the agreed-upon terms if he failed to appear for sentencing.
This appeal followed.
McCall
argues
that
the
imposition
of
the
ten
year
sentence against him was in violation of his agreement with the
Commonwealth and that he is entitled to the imposition of the
original sentence of six years to serve.
Specifically, McCall
alleges
[McCall]
knew
of
his
court
date
for
sentencing and there is no indication that
he
would
have
breached
his
agreement
relative to his appearance had he been
capable of being present for the hearing.
He was not capable.
Instead, he had been
severely
beaten
and
hospitalized,
an
incident
the
court
acknowledged
was
excusable non-compliance on that date.
In
the end, he was present for sentencing, was
ready to serve a term of six years as posed
by the Commonwealth, in exchange for his
plea and waiver of the right to trial. That
was essentially the intent of the parties in
this agreement.
There is nothing in the plea agreement which
details how such a situation should be
handled given the time lapsing after the
sentencing was set, and the time [McCall]
was arrested a few months later.
Such is
the ambiguity in plea agreements written
with such “either/or” language as this one
contains.
Everyone’s
intent
was
for
[McCall] to show up for sentencing.
The
5
fact that this compliance became frustrated
by a physical assault against his person,
followed by fear for his life in the time
thereafter, should have been considered in
[the] court’s evaluation of whether he
complied with the plea agreement.
The
Commonwealth did not anticipate an “in
between” situation, and did not therefore
detail in the agreement what would occur in
that event.
As such, the ambiguity of the
situation should be construed in favor of
[McCall], and he should have received the
lesser sentence of six years, rather than
ten.
Though plea agreements must be construed in light of a
defendant’s
constitutional
rights,
nevertheless
the
law
of
commercial contracts is generally useful as an analogy or point
of departure in construing a plea agreement.3
In general, plea
agreements are contracts and are to be interpreted according to
ordinary contract principles.4
“[A] defendant who breaches a plea agreement forfeits
any right to its enforcement.”5
ment
must
government.6
be
resolved
Although
for
a
Any ambiguities in a plea agreethe
court
defendant
interpreting
and
a
against
plea
the
agreement
gives credence to the plain language of the document, it will
not construe the language so literally that the purpose of the
3
Commonwealth v. Reyes, Ky., 764 S.W.2d 62, 64 (1989).
4
United States v. Ramunno, 133 F.3d 476 484 (7th Cir. 1998).
5
United States v. Wells, 211 F.3d 988, 995 (6th Cir. 2000).
6
U.S. v. Rodgers, 101 F.3d 247, 252 (2nd Cir. 1996), cert. denied,
20 U.S. 1188, 117 S.Ct. 1472, 137 L.Ed.2d 685 (1997).
6
agreement is frustrated; accordingly, the court considers terms
implied
by
provided.7
the
plea
agreement,
as
well
as
those
expressly
A plea agreement includes an implied obligation of
good faith and fair dealing.8
A plea agreement providing for a longer sentence if
the defendant fails to appear at sentencing is an enforceable
agreement.9
When no time is fixed for the performance of a
contract or of any act or duty of either of the parties under
it, the law requires that the performance of the contract or the
act
or
duty
shall
be
within
a
reasonable
time
after
the
execution of the contract.10
The agreement explicitly provided that if McCall did
not report for his sentencing hearing, then his sentence would
be increased from six years to ten years.
that McCall did not appear.
It is uncontested
The trial court postponed his case
until the next day before issuing a bench warrant.
At the
December 2002 sentencing hearing, the trial court indicated that
McCall’s injuries incurred during the early morning of April 24
provided
a
valid
reason
not
to
have
appeared
7
day.
U.S. v. Jones, 58 F.3d 688, 692 (D.C. Cir. 1995).
9
that
U.S. v. Bunner, 134 F.3d 1000, 1003 (10th Cir. 1998).
8
on
Jones v. Commonwealth, Ky., 995 S.W.2d 363 (1999).
10
Carhartt Holding Co. v. Mitchell, 261 Ky. 297, 87 S.W.2d 360, 362
(1935).
7
Indeed, the trial court indicated that if McCall had at least
turned himself in at any time prior to his arrest, he would not
have
enforced
the
enhanced
sentencing
agreement
but,
rather,
his
medical
would have sentenced him to six years.
However,
condition,
upon
rather
the
than
improvement
pursuing
his
of
obligation
under
sentencing agreement, McCall absconded to North Carolina.
the
While
McCall alleges he feared for his and his girlfriend’s life, we
are not persuaded that this justified his failure to appear for
sentencing within a reasonable time after he was medically able
to do so.
Fear of his April 24, 2001, assailant was not a basis
for McCall to fail to comply with his obligation to report for
sentencing.
By
failing
to
appear
for
sentencing
within
a
reasonable time after he was medically able to do so, McCall,
not the Commonwealth, breached the agreement.
As McCall breached
the
timely
terms
of
sentencing,
the
the
agreement
trial
by
court
failing
properly
to
sentenced
report
him
to
for
the
enhanced sentence of ten years.
The
judgment
of
the
affirmed.
ALL CONCUR.
8
Jefferson
Circuit
Court
is
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kim Brooks
Covington, Kentucky
Albert B. Chandler III
ATTORNEY GENERAL OF KENTUCKY
James Havey
ASSISTANT ATTORNEY GENERAL
Frankfort, Kentucky
9
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