NORMAN GLENN ELMORE v. COMMONWEALTH OF KENTUCKY
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RENDERED: SEPTEMBER 21, 2007; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-001455-MR
NORMAN GLENN ELMORE
v.
APPELLANT
APPEAL FROM SHELBY CIRCUIT COURT
HONORABLE REBECCA OVERSTREET, SPECIAL JUDGE
ACTION NO. 03-CR-00117
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
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BEFORE: COMBS, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.
COMBS, CHIEF JUDGE: Norman Glenn Elmore appeals from a judgment and order of
probation of the Shelby Circuit Court that sentenced him to a five-year probated sentence
and ordered him to be “confined to home under Adult Supervision 24 hours a day – 7
days [a] week.” After our review, we vacate and remand for further proceedings.
On August 25, 2003, the Shelby County Grand Jury indicted Elmore on one
count of first-degree sexual abuse pursuant to Kentucky Revised Statutes (KRS) 510.110
for subjecting a minor to sexual contact through the use of forcible compulsion. Elmore
appeared in open court with counsel on September 29, 2003, and entered a plea of not
guilty to the charge.
On June 10, 2004, the Commonwealth made a plea offer to Elmore in
which the Commonwealth agreed to recommend that he serve a sentence of five-years’
imprisonment in exchange for a plea of guilty to the sexual abuse charge. The offer also
provided that the Commonwealth would recommend that the sentence run concurrently
with a ten-year sentence entered against him in the Jefferson Circuit Court on related
charges and that “[i]f probated by Jefferson County the sentence in Shelby County would
likewise be probated.” (Emphasis added.) Elmore accepted the Commonwealth’s offer
and filed a motion to enter a guilty plea pursuant to North Carolina v. Alford, 400 U.S.
25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), on the same day. A hearing on the motion was
also held on the same day before Judge William Stewart. Judge Stewart accepted
Elmore’s plea; however, final sentencing was deferred until the Jefferson County action
had concluded.
The action against Elmore in the Jefferson Circuit Court was later resolved,
Senior Judge Rebecca Overstreet now sitting by designation, and Elmore received a tenyear probated sentence. On June 27, 2006, the Shelby Circuit Court followed suit and
entered a judgment that gave Elmore a probated sentence of five-years’ imprisonment.
However, Judge Overstreet ordered imposition of an additional term as part of her order
of probation: that Elmore be “confined to home under Adult Supervision 24 hours a day
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– 7 days [a] week.” This provision was not part of the order of probation entered by the
Jefferson Circuit Court in its case involving Elmore.
In appealing this portion of the order of the Shelby Circuit Court, Elmore
claims that the home-confinement provision of the order of probation was not part of the
parties’ plea agreement. Consequently, he contends that he should have been given the
opportunity to withdraw his guilty plea pursuant to Kentucky Rules of Criminal
Procedure (RCr) 8.10. According to Elmore, his agreement with the Commonwealth was
that the trial court -- upon accepting his guilty plea and the plea agreement -- would adopt
and enter the identical terms of the order of probation to be entered in the Jefferson
Circuit Court. The Commonwealth contends that this issue is not properly before us
because Elmore failed to present it first to the trial court. The Commonwealth also
argues that Elmore’s appeal should be dismissed outright because he waived his right to
an appeal when he knowingly and voluntarily entered into a guilty plea.
As a general rule, a voluntary guilty plea waives all defenses other than that
the indictment charges no offense. Toppass v. Commonwealth, 80 S.W.3d 795, 798
(Ky.App. 2002); Centers v. Commonwealth, 799 S.W.2d 51, 55 (Ky.App. 1990). Thus,
there generally is no right to a direct appeal from a plea of guilty. Greer v.
Commonwealth, 713 S.W.2d 256, 257 (Ky.App. 1986). However, a defendant may by
direct appeal challenge the legality of a sentence imposed pursuant to a guilty plea
because sentencing issues are considered "jurisdictional" and cannot be waived. See
Gaither v. Commonwealth, 963 S.W.2d 621, 622 (Ky. 1997); Hughes v. Commonwealth,
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875 S.W.2d 99, 100 (Ky. 1994); Ware v. Commonwealth, 34 S.W.3d 383, 385 (Ky.App.
2000); Sanders v. Commonwealth, 663 S.W.2d 216, 218 (Ky.App. 1983). Therefore,
despite the fact that Elmore did not raise this issue before the trial court, it is a legitimate
subject for our review.
The Commonwealth disputes Elmore’s claim that the plea agreement called
for the trial court to adopt and to enter the exact conditions of the Jefferson Circuit
Court’s order of probation. According to the Commonwealth, the court was only
obligated by the plea agreement to probate Elmore’s sentence, impliedly retaining the
discretion to impose whatever other conditions of probation that it might deem
appropriate. Our inquiry must necessarily focus on the substance of the agreement
between the parties.
“Courts have recognized that accepted plea bargains are binding contracts
between the government and defendants.” Hensley v. Commonwealth, 217 S.W.3d 885,
887 (Ky.App. 2007). Once a plea agreement is accepted by a defendant, the agreement is
binding upon the Commonwealth -- subject to approval by the trial court -- and the
accused is entitled to the benefit of his bargain. Id. at 887; see also Putty v.
Commonwealth, 30 S.W.3d 156, 159 (Ky. 2000). Accordingly, plea agreements are
interpreted according to ordinary contract principles. O'Neil v. Commonwealth, 114
S.W.3d 860, 863 (Ky.App. 2003). The interpretation of a contract -- including a
determination of whether it is ambiguous -- is a question of law. Baker v. Coombs, 219
S.W.3d 204, 207 (Ky.App. 2007). However, because plea agreements concern a waiver
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of fundamental constitutional rights, (Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct.
1709, 1712, 23 L.Ed.2d 274 (1969)), due process principles play a role in interpreting a
plea agreement. See Spence v. Superintendent, Great Meadow Correctional Facility, 219
F.3d 162, 167-68 (2d Cir. 2000); cf. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct.
495, 499, 30 L.Ed.2d 427 (1971).
Both the plea offer and the subsequent agreement provided that “if
[Elmore’s sentence is] probated by Jefferson County the sentence in Shelby County
would likewise be probated.” (Emphasis added.) At issue is the import of the word
likewise as used in the offer and agreement. As noted above, Elmore construes likewise
to mean that the Shelby Circuit Court was intended to enter an order of probation
identical to the one entered in the Jefferson Circuit Court. The Commonwealth, on the
other hand, argues that this reading by Elmore is too broad and that the terms of the plea
agreement were fully satisfied when the trial court entered a judgment and order that
simply probated his sentence, contending that perfect congruence with the Jefferson
County order was not implied in the term likewise.
Thus, we must determine the meaning of the plea agreement provision in
question since an ambiguity has arisen. In so doing, we recognize that “[a]n ambiguous
contract is one capable of more than one different, reasonable interpretation.” Central
Bank & Trust Co. v. Kincaid, 617 S.W.2d 32, 33 (Ky. 1981); see also Frear v. P.T.A.
Industries, Inc., 103 S.W.3d 99, 106 n.12 (Ky. 2003). To determine if an ambiguity truly
exists, we must evaluate whether the provision in question is susceptible of contradictory
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interpretations. Transport Ins. Co. v. Ford, 886 S.W.2d 901, 905 (Ky.App. 1994). If an
ambiguity exists:
“the court will gather, if possible, the intention of the parties
from the contract as a whole, and in doing so will consider the
subject matter of the contract, the situation of the parties and
the conditions under which the contract was written,” by
evaluating extrinsic evidence as to the parties' intentions.
Frear, 103 S.W.3d at 106, quoting Whitlow v. Whitlow, 267 S.W.2d 739, 740 (Ky. 1954).
If it is not ambiguous, a contract will be enforced strictly according to its terms. O'Bryan
v. Massey-Ferguson, Inc., 413 S.W.2d 891, 893 (Ky. 1966); Frear, 103 S.W.3d at 106.
A court will interpret those terms “by assigning language its ordinary meaning and
without resort to extrinsic evidence.” Id.
Elmore and the Commonwealth both offer equally plausible interpretations.
Merriam-Webster’s Collegiate Dictionary provides two arguably applicable definitions
for the word likewise: “in like manner: similarly” and “in addition.” Merriam-Webster’s
Collegiate Dictionary 673 (10th ed. 2002). The first definition supports Elmore’s view of
what likewise was intended to mean in the context of the plea agreement, but the second
definition comports with the Commonwealth’s interpretation. Consequently, while both
definitions are reasonable interpretations of the meaning of the word likewise, they are
also inconsistent with one another in the context of this case. Thus, this portion of the
plea agreement is indeed ambiguous.
Kentucky has no clear rule as to which party should benefit from an
ambiguity where a plea agreement is involved. However, our courts have long adhered to
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the rule contra proferentem in construing contracts; i.e., “when a contract is susceptible
of two meanings, it will be construed strongest against the party who drafted and
prepared it.” B. Perini & Sons v. Southern Ry. Co., 239 S.W.2d 964, 966 (Ky. 1951),
quoting Theatre Realty Co. v. P. H. Meyer Co., 243 Ky. 346, 48 S.W.2d 1, 2 (1932); see
also Perry v. Perry, 143 S.W.3d 632, 633 (Ky.App. 2004). We conclude that this rule
should also be applicable to plea agreements. The overwhelming sentiment among our
sister states is that any ambiguity in such an agreement should be resolved in favor of the
defendant and against the government. See, e.g., Humphrey v. State, 686 So.2d 560, 562
(Ala.Crim.App. 1996); Keller v. People, 29 P.3d 290, 297 (Colo. 2000); State v. Cazzetta,
903 A.2d 659, 663 (Conn.App.Ct. 2006); State v. Cole, 16 P.3d 945, 948 (Idaho Ct.App.
2000); State v. Wills, 765 P.2d 1114, 1120 (Kan. 1988); State v. Mares, 888 P.2d 930,
932 (N.M. 1994); Commonwealth v. Kroh, 654 A.2d 1168, 1172 (Pa.Super.Ct. 1995).1
In State ex rel. Forbes v. Kaufman, 404 S.E.2d 763 (W.Va. 1991), the
Supreme Court of Appeals of West Virginia faced a similar situation in which a plea
agreement between the defendant and the state was ambiguous in nature. The Court
concluded that:
the state bears the primary responsibility for insuring
precision and unambiguity in a plea agreement because of the
significant constitutional rights the defendant waives by
1
Federal courts of appeal have also held that ambiguities in plea agreements should be construed
against the government. See, e.g., United States v. Rodgers, 101 F.3d 247, 253 (2d Cir. 1996);
United States v. Baird, 218 F.3d 221, 229 (3d Cir. 2000); United States v. Randolph, 230 F.3d
243, 248 (6th Cir. 2000); United States v. Coleman, 895 F.2d 501, 505 (8th Cir. 1990); United
States v. Camarillo-Tello, 236 F.3d 1024, 1026-27 (9th Cir. 2001); United States v. Peterson, 225
F.3d 1167, 1171 (10th Cir. 2000); United States v. Nyhuis, 8 F.3d 731, 741-42 (11th Cir. 1993);
White v. United States, 425 A.2d 616, 618 (D.C. 1980).
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entering a guilty plea. If a plea agreement is imprecise or
ambiguous, such imprecision or ambiguity will be construed
in favor of the defendant.
Id. at 768. In reaching its decision, the West Virginia court cited to the opinion of the
Fourth Circuit Court of Appeals in United States v. Harvey, supra, in which that Court
held that “both constitutional and supervisory concerns require holding the Government
to a greater degree of responsibility than the defendant . . . for imprecisions or
ambiguities in plea agreements” -- particularly where the government has proffered the
plea terms or prepared the agreement. Kaufman, 404 S.E.2d at 768, quoting Harvey, 791
F.2d at 300-01. The West Virginia Court noted that such concerns included the fact that
a defendant waives a number of “significant constitutional rights” by entering into a plea
agreement, including the right to examine and to confront witnesses who would testify
against the defendant, the privilege against compulsory self-incrimination, the
presumption of innocence, and the right to a speedy trial. Id.
As we are persuaded that the reasoning of the West Virginia court is sound,
we adopt it as our own and accordingly conclude that the ambiguity in the plea agreement
now before us should be resolved against the Commonwealth. Thus, we construe the
meaning of likewise as used in the plea agreement to equate with the interpretation
offered by Elmore.
We have reviewed the plea colloquy that took place on June 10, 2004,
during the hearing on Elmore’s motion to enter a guilty plea in which the trial judge
questioned the parties about the plea agreement. That exchange reflects and reinforces
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the interpretation that the agreement between the parties supported Elmore’s perspective.
Of particular relevance here, Judge Stewart ultimately summarized the agreement
between the parties as follows:
… but the agreement between the defense and the
Commonwealth is that if the sentencing judge in Jefferson
County grants probation, then it would automatically be that
I enter, by agreement, that order of probation.
(Emphasis added). He later added:
I’m going to, in essence, defer to the disposition in
Jefferson County, and even if that disposition is not
satisfactory, then I would be, by agreement, bound to go
along with that Jefferson Circuit judge.
(Emphasis added). The record of the hearing reflects that the Commonwealth agreed
with this characterization of the plea agreement by Judge Stewart. In light of these
statements by the judge, his acceptance of the plea agreement, the Commonwealth’s
acquiescence to his characterization of the agreement, and our decision to construe
ambiguities in a plea agreement against the Commonwealth, we conclude that the
agreement should be construed to require the trial court to enter the exact order of
probation as that which was entered in the Jefferson Circuit Court.
We hold that the Shelby Circuit Court’s later inclusion of an additional
condition in its order of probation was erroneous, and this matter must be remanded.
Upon remand, Elmore shall be entitled to specific performance of the plea agreement at
his re-sentencing or to the withdrawal of his original guilty plea pursuant to RCr 8.10.
See Santobello, 404 U.S. at 262-63, 92 S.Ct. at 499. If he elects specific performance, the
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court shall re-sentence Elmore according to the terms of the plea agreement as resolved in
this opinion.
The judgment and order of probation of the Shelby Circuit Court are
vacated, and this matter is remanded for proceedings consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
James A. Earhart
Louisville, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Clint E. Watson
Assistant Attorney General
Frankfort, Kentucky
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