ERIC THOMAS TAYLOR v. COMMONWEALTH OF KENTUCKY
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RENDERED:
SEPTEMBER 2, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2004-CA-001339-MR
ERIC THOMAS TAYLOR
APPELLANT
APPEAL FROM CARTER CIRCUIT COURT
HONORABLE SAMUEL C. LONG, JUDGE
ACTION NO. 02-CR-00056
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; HENRY AND TACKETT, JUDGES.
TACKETT, JUDGE:
Eric Taylor appeals from the decision of the
Carter Circuit Court convicting him of one count of Sexual Abuse
in the First Degree.
The two issues before the court are
whether the trial court abused its discretion in not awarding
Taylor probation instead of incarceration and whether the trial
court abused its discretion by not making statutorily required
findings that imprisonment was necessary.
We affirm.
Appellant Eric Taylor was indicted on July 3, 2002 of
one count of Rape in the Second Degree for having sex with a
minor.
Following the appellant’s initial not guilty plea,
appellant and his counsel negotiated a plea agreement with the
Commonwealth.
Under the terms of the agreement, the appellant
would plead guilty to Sexual Abuse in the First Degree with the
Commonwealth recommending that the appellant be imprisoned for
five (5) years, pending the presentence investigation and sex
offender reports.
On March 16, 2004, appellant appeared before the trial
court and tendered his motion to plead guilty pursuant to North
Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162
(1970), which allowed him to plead guilty without admitting to
the elements of the offense.
During the sentencing hearing on
June 7, 2004, the defense, the Commonwealth, and the judge
discussed the conflict created by the Alford plea and the
requirement that a person convicted of a sex offense must admit
guilt before entering the Sexual Offender Treatment Program
(SOTP).
The discussion focused on appellant’s eligibility for
probation, as completion of the SOTP was a requirement for
completion of probation pursuant to Kentucky Revised Statute
(KRS) 532.045.
Due to his lack of an admission and his
inability to complete the SOTP, the trial judge told appellant
that he could not receive probation and offered him the chance
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to change his mind.
When the appellant did not do so, the trial
judge remanded appellant to the Department of Corrections on
June 8, 2004.
However, appellant’s attorney asked for a stay of
execution in the sentence pending an appeal based on the denial
of probation, and the judge allowed appellant to post bond
pending the outcome of the appeal before us now.
Appellant
seeks to either have his sentence reversed and to be granted
probation or to have the case remanded to the trial court for a
new sentencing hearing with instructions that he be granted
probation consistent with KRS 533.010.
Appellant’s first argument is that the trial court
abused its discretion when it denied appellant probation because
probation is the statutory preference over imprisonment.
To
support this the appellant breaks his argument into three parts,
with the first one being that KRS 533.010(2) says that a judge
shall consider probation before a sentence of imprisonment.
Next, appellant urges the court to rule that denying probation
in part because of the appellant’s failure to be able to
complete the SOTP due to his Alford plea is an abuse of
discretion in itself.
The third part of appellant’s argument is
that in the past Kentucky courts have usually given imprisonment
for more serious crimes than the one appellant committed.
Appellant points out that in the case of Razor v. Commonwealth,
Ky. App., 967 S.W.2d 472
(1997), the defendant was granted
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probation even though he had committed numerous offenses of a
supposed worse nature than those of the appellant here.
(Interestingly enough, the appellant chooses to downplay the
fact that Razor’s probation was revoked for not completing the
SOTP because he would not admit guilt to all of the charges
because of his Alford plea.)
All three parts of this argument
lack merit.
The decision to grant or deny probation is a
discretionary one given to the trial court, and is not
specifically mandated under KRS 533.010.
As the Commonwealth
correctly points out in its brief, whether probation is granted
is a matter of grace and not a right.
Aviles v. Commonwealth,
Ky. App., 17 S.W.3d 534 (2000); Turner v. Commonwealth, Ky., 914
S.W.2d 343 (1996).
In addition, as both the appellant and the
Commonwealth noted, a ruling on probation is generally upheld
unless there is a showing that the ruling was “arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.”
Commonwealth v. English, Ky., 993 S.W.2d 941, 945 (1999).
Appellant fails to establish that the trial court’s ruling met
these standards for a reversal.
The Commonwealth correctly points out that the present
case is better understood when compared to the holding in Bell
v. Commonwealth, Ky. App., 566 S.W.2d 785 (1978).
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In Bell, the
court described the mandate regarding probation from KRS 533.010
as follows:
. . .we do conclude that the trial judge
must comply with KRS 533.010 and give due
consideration to the possibility of
probation. . .the trial court must place in
the record a statement sufficient to show
that the necessary consideration has been
given.
In Bell, the court found that a simple statement regarding a
substantial risk that the defendant would commit another crime
while on probation was enough.
In the present case, the judge
made an amply considered probation by both his evaluation of the
presentence investigation and in allowing the appellant an
opportunity to mitigate his punishment with statements on his
behalf.
Also, the trial court noted that similar to Razor,
supra, the appellant was utilizing an Alford plea and with it
came the impossibility of appellant completing the SOTP, which
would lead to certain revocation of probation before it could be
successfully completed.
The trial court made it clear that this
was also affecting the consideration of probation, though
probation was in fact considered.
The court made the
implications of the Alford plea clear to the appellant, and the
appellant stuck with his Alford plea fully knowing the
implications of his actions. The appellant offers no evidence or
proof from the record that the trial court abused its discretion
in this regard.
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Along the same lines, the appellant also is incorrect
in stating that he should not have to admit his guilt to enter
the SOTP because it would in essence contradict his Alford plea.
Other courts have rejected a similar argument involving the
ability of the court to revoke probation for an offender's
refusal to acknowledge the commission of the offense as part of
his sexual-offender treatment program in the past.
State v.
Faraday, Conn., 842 A.2d 567 (2004). "The entry of a guilty plea
under the Alford doctrine carries the same consequences as a
standard plea of guilty.
By entering such a plea, a defendant
may be able to avoid formally admitting guilt at the time of
sentencing, but he nonetheless consents to being treated as if
he were guilty with no assurances to the contrary."
Id at 588.
We agree with the reasoning of Faraday and reject
appellant’s argument that forcing him to comply with the SOTP,
and thus admitting guilt in so far as required to complete the
SOTP, in order to be eligible for probation is an abuse of
discretion.
As seems to be the trend in the nation’s courts, we
feel “there is nothing inherent in the nature of an Alford plea
that gives a defendant any rights, or promises any limitations,
with respect to the punishment imposed after the conviction.”
State ex rel. Warren v. Schwarz, Wis. App., 566 N.W.2d 173, 177
(1997).
See also People v. Birdsong, Colo., 958 P.2d 1124
(1998); State v. Jones, Idaho App., 926 P.2d 1318 (1996).
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While
the Alford plea allows the appellant to not admit his guilt for
the conviction phase of the proceedings, it does not override
the requirements of the SOTP.
Finally, the appellant’s last part of his first
argument also fails.
While it may be true that punishments are
not uniform in the Commonwealth, this is not sufficient reason
for overturning the decisions of the trial court.
Appellant
does not cite any support for this claim and just says that it
must be an abuse of discretion.
This is not so.
Absent some
arbitrary or grossly unfair ruling or abuse of the discretion
that the trial court is granted, the decision of that court will
be left undisturbed.
S.W.3d 534 (2000).
Aviles v. Commonwealth, Ky. App., 17
Appellant simply disagreeing with this
determination and finding one case where the outcome was
different does not suffice.
With all of the appellant’s first argument failing to
have any merit, we now turn to his second argument.
Somewhat
similar to his earlier arguments, appellant argues that the
trial court abused its discretion by denying appellant probation
without making the statutorily required findings that
imprisonment was necessary.
Though this issue is not properly
preserved for this court, appellant asks that we review the
argument under Kentucky Rule of Criminal Procedure (RCr) 10.26
for palpable error.
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In order for a claim to be successful under the
palpable error rule, appellant must show that an error has
occurred that resulted in a “manifest injustice” and that the
“error must seriously affect the fairness, integrity or public
reputation of judicial proceedings.”
Ky., 947 S.W.2d 24 (1997).
Brock v. Commonwealth,
There must be more than just a
simple error in the proceedings by the trial court in order for
it to be overturned.
The appellant argues that failure to
comply with KRS 533.010 is just such an error.
As the appellant points out, under KRS 533.010(2), in
order for the appellant to be denied probation the trial judge
must find one of the following:
(a)
(b)
(c)
There is substantial risk that
during a period of probation or
conditional discharge the defendant
will commit another crime;
The defendant is in need of
correctional treatment that can be
provided most effectively by his
commitment to a correctional
institution; or
A disposition under this chapter will
unduly depreciate the seriousness of
the defendant’s crime.
During the sentencing hearing of June 7, 2004, none of these
factors appears to have been mentioned by the trial judge, nor
was one marked on the document entitled “Judgment and Sentence
on Plea of Guilty.”
However, this statute does not seem to be quite as
“mandatory” as the appellant wishes for it to be.
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Previous
cases have shown us that the courts will uphold a sentence of
imprisonment even if the reasons provided under KRS 533.010 are
not given, so long as the record indicates that the trial court
at least considered the relevant factors and probation before
sentencing took place.
Turner, supra.
In the present case, it
seems that the trial court similarly considered the relevant
factors before determining the punishment.
The record shows
that the trial judge considered the serious nature of the
actions as well as the inability of the appellant to complete
the SOTP due to his refusal to admit his guilt.
While not
specifically stated, these two things shown in the record appear
to coincide with considerations consistent with KRS
533.010(2)(b-c).
Like Turner, this would support upholding the
ruling by the trial court and does not even rise to the level of
a minor error, let alone palpable error.
Additionally, as the Commonwealth points out, KRS
532.045, which deals with sex offenders, takes precedence over
KRS 533.010.
The three most important parts of KRS 532.045 to
this issue are:
(4)
If the court grants probation or
conditional discharge, the offender
shall be required, as a condition of
probation or conditional discharge, to
successfully complete a communitybased sexual offender treatment
program operated or approved by the
Department of Corrections or the Sex
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(6)
(9)
Offender Risk Assessment Advisory
Board. . .
Failure to successfully complete the
sexual offender treatment program
constitutes grounds for revocation of
probation or conditional discharge. . .
To the extent that this section
conflicts with KRS 533.010, this
section shall take precedence.
(emphasis added)
The trial court not only was aware of this statute and the
requirements of the SOTP, but took the extra precaution to make
sure that the appellant knew about the requirements before
sentencing him.
Appellant knowingly refused to comply with the
program and knowingly negated his ability to be granted
probation for his offense by refusing to admit his guilt, which
as mentioned earlier, is not part of the Alford plea.
Due to
his inability to complete the SOTP and considering that KRS
532.045(9) expressly takes precedence over KRS 533.010, reliance
on this statute to deny the appellant probation does not qualify
as palpable error, but is in fact completely correct.
Thus,
this argument must also fail.
Based on the evidence and the foregoing reasons, the
decision of the Carter Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Samuel N. Potter
Assistant Public Advocate
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Tami Allen Stetler
Assistant Attorney General
Frankfort, Kentucky
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