COMMONWEALTH OF KENTUCKY VS. LOPEZ (LORENZO)
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RENDERED: APRIL 18, 2008; 10:00 A.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2006-CA-001500-MR
COMMONWEALTH OF KENTUCKY
APPELLANT
APPEAL FROM FLEMING CIRCUIT COURT
HONORABLE JOHN W. MCNEILL, III, JUDGE
ACTION NO. 03-CR-00016
v.
LORENZO LOPEZ
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; DIXON, JUDGE; KNOPF, 1 SENIOR JUDGE.
COMBS, CHIEF JUDGE: The Commonwealth of Kentucky appeals from a decision of
the Fleming Circuit Court allowing Lorenzo Lopez to withdraw his guilty plea after he
had been terminated from a pre-trial diversion program. We affirm.
On May 9, 2003, the Fleming County Grand Jury indicted Lopez on two
counts of first-degree sexual abuse, a Class D felony pursuant to Kentucky Revised
Statutes (KRS) 510.110. The indictment charged that between December 2002 and
February 2003, Lopez sexually molested his stepchildren, who were both under the age
of 12.
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Senior Judge William L. Knopf sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
On April 14, 2004, Lopez filed a motion to enter a guilty plea as to the
indictment along with a motion for pre-trial diversion pursuant to the statutory “Pretrial
Diversion Program” set forth in KRS 533.250 – 533.262. In exchange for Lopez’s guilty
plea, the Commonwealth agreed to recommend sentences of two-years’ imprisonment
on each charge – with those sentences running concurrently. It also agreed that his
case should be diverted for a period of five years. During this period of diversion, Lopez
would be required to attend and to complete the Kentucky Sex Offender Treatment
Program (SOTP). On July 19, 2004, the trial court entered an order that granted
Lopez’s motions and sentenced him in accordance with the Commonwealth’s
recommendations.
Lopez was terminated from the SOTP on December 29, 2005. In its
“Special Supervision Report,” the Division of Probation and Parole noted that the
reasons for Lopez’s termination were that he failed to admit to his involvement in the
offenses for which he had been indicted and that he failed to successfully complete a
“therapy task” within the allotted ninety-day period. The report recommended that a
warrant be issued for Lopez’s arrest for violation of his pretrial diversion agreement
since he had failed to complete the SOTP. It further recommended that Lopez appear
before the trial court for a hearing to declare his diversion void. On February 3, 2006,
the court issued a bench warrant for his arrest.
Lopez appeared in court on March 3, 2006, for a hearing regarding his
termination from the SOTP. Pursuant to the arguments presented at the hearing and
comments made by the Commonwealth, the court elected not to void Lopez’s diversion
agreement and decided to give him a second chance to complete his treatment. It
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entered an order to that effect on March 13, 2006. At the hearing, the court focused
upon an argument made by Lopez’s counsel that the SOTP counselor wanted Lopez to
admit to allegations that had been part of a separate petition alleging dependency,
neglect, and abuse previously filed against Lopez in Fleming District Court. The district
court judge apparently had concluded that the petition lacked merit and had dismissed
the action. Unfortunately, the record from this earlier proceeding is not before us.
However, in the record of the circuit court case that is before us, the judge indicated that
he did not think that it was appropriate for Lopez be forced to admit to something that he
claimed he had not done in connection with an action that had been dismissed.
Two months later, on May 5, 2006, the Division of Probation and Parole
filed another Special Supervision Report indicating that Lopez would not be re-admitted
to the SOTP because he persisted in denying the conduct for which he had been
indicted; if he wished to continue treatment, he would be obliged to resort to a private
provider. The report also recommended that Lopez’s diversion be revoked. The trial
court held a hearing on this same day concerning the report.
Brenda Hatton, Lopez’s counselor in the SOTP, testified that he was
terminated for “lack of ownership” and for not progressing in treatment. She advised the
court that the program had nothing more to offer him as a result of his refusal to
cooperate. Lopez’s counsel again expressed a concern that Lopez had been asked to
admit to allegations that went beyond the scope of his guilty plea. Hatton
acknowledged that the program wanted Lopez to admit to behavior that his stepchildren
had talked about in reports filed in the dependency, abuse, and neglect proceeding –
the proceeding that had been dismissed by the district court. She concluded: “Children
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lie all the time, sir. Rarely do they lie about sex abuse.” The record is unclear as to
what reports were being referenced with respect to the district court action. They were
not presented at this hearing, and it could not be determined whether or in what degree
they differed from those made part of the circuit court record (e.g., Lopez’s pre-sentence
investigation report).
Lopez’s counsel subsequently requested that the court remove the
completion-of-treatment provision from the terms of Lopez’s diversion agreement while
keeping all other provisions in place. The Commonwealth responded that because
Lopez had failed to meet the requirements of the SOTP, the court’s only option was to
void his pre-trial diversion in its entirety and to proceed to sentence him on his guilty
plea. Lopez’s counsel then indicated that if the court decided to void Lopez’s diversion
agreement, Lopez wished to withdraw his guilty plea and have the case set for trial.
The Commonwealth objected. The court declined to rule at that point and set the matter
for another hearing on June 2, 2006.
At this June 2 hearing, the parties repeated their earlier arguments. The
Commonwealth again argued that allowing Lopez to withdraw his plea and proceed to
trial was not an option if the court decided to void his diversion agreement. Lopez’s
counsel argued that Lopez should not be punished for refusing to admit to conduct of
which he claimed to be innocent. He requested that his guilty plea be invalidated and
that his case be set for trial. The court orally granted Lopez’s motion to withdraw his
guilty plea and ordered that his case be set for trial.
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On July 7, 2006, the court memorialized its oral ruling with a written order
that terminated Lopez’s diversion and vacated his guilty plea. The order provides, in its
entirely, as follows:
Upon motion of the Defendant to withdraw his plea and
terminate his diversion agreement, and the court considering
arguments of counsel and being sufficiently advised;
The Court hereby makes the following finding of facts and
conclusion of law:
1. The defendant entered into a Probation/Pretrial Diversion
Agreement on the 14th day of July, 2004 pursuant to RCr
8.04.
2. One condition was that the Defendant complete Sex
Offender Treatment Program. (SOTP)
3. On February 3, 2006 the Commonwealth moved to revoke
the pretrial diversion program for failure to complete the
SOTP.
4. On March 3, 2006 the Court found that the Defendant had
not materially violated the diversion agreement, and ordered
him to continue SOTP.
5. Upon being informed that the SOTP refused further
treatment for Mr. Lopez the case returned to Court on May 5,
2006.
6. A hearing was held on May 5, 2006 and the
Commonwealth presented evidence that the SOTP would no
longer accept Mr. Lopez. In response defense counsel
moved to withdraw Mr. Lopez’s plea of guilty and terminate
the diversion agreement.
7. After listening to testimony and witnesses and arguments
of counsel, the court took the motion under advisement.
CONCLUSIONS OF LAW
A. The Defendant has not materially violated the conditions
of his diversion agreement.
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B. It is not possible for the Defendant to comply with the
terms of the diversion as originally drafted.
C. A guilty plea must be a knowing, intelligent, and voluntary
waiver of the right to a jury trial.
D. The Defendant lacked an understanding of the terms of
the diversion agreement and guilty plea. Therefore, his
guilty plea was not knowing, intelligent, and voluntary.
ORDER
IT IS HEREBY ORDERED AND ADJUDGED that the
Defendant, Lorenzo Lopez’s diversion agreement is
terminated and [his] guilty plea is vacated. The case is reset
on the Fleming Circuit Court Docket for [August 4,] 2006 to
determine a trial date.
The Commonwealth objected and filed this appeal.
The Commonwealth argues that the trial court erred by allowing Lopez to
withdraw his guilty plea. It contends that Lopez’s guilty plea was entered knowingly,
voluntarily, and intelligently. Because he failed to comply with the terms of his diversion
agreement, the court was required by KRS 533.256 to sentence him in accordance with
his guilty plea. KRS 533.256, which is entitled “Failure to complete provisions of pretrial
diversion agreement,” provides as follows:
(1) If the defendant fails to complete the provisions of the
pretrial diversion agreement within the time specified, or is
not making satisfactory progress toward the completion of
the provisions of the agreement, the Division of Probation
and Parole, the victim, or a peace officer may inform the
attorney for the Commonwealth of the alleged violation or
noncompliance, and the attorney for the Commonwealth
may apply to the court for a hearing to determine whether or
not the pretrial diversion agreement should be voided and
the court should proceed on the defendant’s plea of guilty in
accordance with the law.
(2) In making a determination as to whether or not a pretrial
diversion agreement should be voided, the court shall use
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the same criteria as for the revocation of probation, and the
defendant shall have the same rights as he or she would if
probation revocation was sought.
(3) Making application for a pretrial diversion agreement tolls
any statute of limitations relative to the criminal offenses for
which the application is made for the period until the
application is granted or denied. Approval of the application
for pretrial diversion by the court tolls any statute of
limitations relative to criminal offenses diverted for the period
of the diversion agreement.
(4) If the court voids the pretrial diversion agreement, the
court shall notify the applicable prosecutor in writing that the
pretrial diversion agreement has been voided and the
reasons for the action. The prosecutor shall decide whether
or not to proceed on the plea of guilty in accordance with the
law.
Lopez argues in response that the Commonwealth’s interpretation of KRS
533.256 violates the separation of powers clauses of the Kentucky Constitution (§§ 27
and 28) because it interferes with the authority of the judicial branch to determine if a
plea of guilty may be withdrawn pursuant to Kentucky Rules of Criminal Procedure
(RCr) 8.10. In effect, the Commonwealth is arguing that such a determination should be
transferred from the judicial to the executive branch. We have refrained from
addressing this constitutional argument because we have concluded that the trial court
did not err in granting Lopez’s motion to withdraw his guilty plea.
Lopez’s diversion agreement falls under the ambit of the statutory “Pretrial
Diversion Program,” KRS 533.250, et seq., and not under RCr 8.04 as indicated by the
trial court in its order. RCr 8.04 generally applies to district court proceedings. See
Flynt v. Commonwealth, 105 S.W.3d 415, 424 (Ky. 2003). It is RCr 8.10 that governs
the plea bargaining process at issue in this case.
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RCr 8.10 provides that “[a]t any time before judgment the court may permit
the plea of guilty or guilty but mentally ill, to be withdrawn and a plea of not guilty
substituted....” A motion to withdraw a guilty plea pursuant to RCr 8.10 is generally
addressed to the sound discretion of the trial court and is reviewed to determine only if
the court abused that discretion. Williams v. Commonwealth, 229 S.W.3d 49, 51 (Ky.
2007); Edmonds v. Commonwealth, 189 S.W.3d 558, 570 (Ky. 2006). “The test for
abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable,
unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993
S.W.2d 941, 945 (Ky. 1999). If a guilty plea is found to have been entered involuntarily,
the motion to withdraw it must be granted. If the plea is found to have been voluntary,
the court still may – within its discretion – either grant or deny the motion. Williams, 229
S.W.3d at 51; Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky.App. 2004).
A trial court exercises great discretion in allowing a party to withdraw his
guilty plea pursuant to RCr 8.10. KRS 533.256(1) reinforces that discretion for the court
“to determine whether or not the pretrial diversion agreement should be voided and the
court should proceed on the defendant’s plea of guilty in accordance with the law.”
Thus, a court retains the inherent authority to examine whether a defendant has or has
not complied with his diversion agreement.
Although our case law is sparse in construing KRS 533.256, our Supreme
Court has held that when a defendant fails to successfully complete pre-trial diversion,
“KRS 533.256 contemplates that the trial court will enter final judgment in accordance
with the defendant’s guilty plea.” Flynt, 105 S.W.3d at 418. While this proposition
generally governs, it is not universal in its application. We are persuaded that the trial
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court correctly determined that it should not apply in light of the unique facts of this
case.
The trial court was presented with evidence suggesting that Lopez’s
SOTP counselors sought to compel him to admit to conduct of which he claimed to be
innocent. The counselors made his admission a condition precedent to its
determination of his success in the treatment and to his completion of the program.
Although such evidence was not overwhelming, this possibility obviously concerned the
court enough to persuade it to void Lopez’s pretrial diversion agreement and to allow
him to withdraw his guilty plea. The result is unusual, admittedly; however, we cannot
say that the trial court lacked the discretion to act as it did.
RCr 8.10 allows a defendant to withdraw a guilty plea “[a]t any time before
judgment.” Our Supreme Court has interpreted judgment for purposes of RCr 8.10 as
meaning a “final judgment.” See Bronk v. Commonwealth, 58 S.W.3d 482, 486 (Ky.
2001). Pursuant to KRS 533.250, pre-trial diversion essentially delays the final
adjudication of a criminal complaint against a defendant. Our Supreme Court has
described pre-trial diversion as an “interruption of prosecution prior to final
disposition.” Flynt, 105 S.W.3d at 424. (Emphasis added.) Thus, withdrawal of a
guilty plea pursuant to RCr 8.10 remains a viable possibility in cases where pre-trial
diversion has been granted since by definition those cases have not been finally
adjudicated.
We are persuaded that the court scrupulously evaluated the attenuating
circumstances in this case before deciding to void the diversion agreement and to allow
Lopez to withdraw his plea. We have found nothing in the record to undermine its
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legitimate exercise of its discretion so as to render its decision “arbitrary, unreasonable,
unfair, or unsupported by sound legal principles.” English, 993 S.W.2d at 945. On the
contrary, the court performed its duty carefully and tailored its decision to the unique
facts of this case.
Accordingly, we affirm the judgment of the Fleming Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gregory D. Stumbo
Attorney General of Kentucky
Samuel N. Potter
Assistant Public Advocate
Frankfort, Kentucky
Matthew R. Krygiel
Assistant Attorney General
Frankfort, Kentucky
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