PEELER (GLEN ALAN) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: DECEMBER 12, 2008; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
GLEN ALAN PEELER, JR.
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE JANET P. COLEMAN, JUDGE
ACTION NO. 06-CR-00447
COMMONWEALTH OF KENTUCKY
VACATING AND REMANDING
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BEFORE: KELLER AND WINE, JUDGES; LAMBERT,1 SENIOR JUDGE.
LAMBERT, SENIOR JUDGE: The issue presented for review is whether it was
reversible error for Glenn Peeler to be sentenced to prison following his removal
from the Hardin Circuit Court pretrial diversion program without a separate
sentencing hearing and a new pre-sentence investigation report.
Senior Judge Joseph E. Lambert 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 March 13, 2007, Peeler pled guilty to an amended charge of firstdegree wanton endangerment in exchange for the Commonwealth’s offer of pretrial diversion. The agreement provided that Peeler must forfeit any and all items
seized during his arrest, complete thirty-two hours per week of employment,
community service, or a combination of both, and have no contact with the victim.
The order granting pretrial diversion also provided that
If the Court finds the Defendant fails to successfully
complete Pretrial Diversion and voids the agreement, the
Court may impose a sentence equal or less than the
penalty recommended by the prosecutor. The Court may
not enter a sentence which exceeds the Commonwealth’s
On July 3, 2007, the Hardin Circuit Court held a hearing to determine
whether Peeler had violated the terms and conditions of pre-trial diversion. During
the hearing, Peeler was represented by counsel who argued that Peeler should not
be removed from the diversion program or, in the alternative, that he should not be
sent to prison. After considering the defendant’s arguments, in an order dated July
16, 2007, the Hardin Circuit Court found Peeler in violation of the conditions of
the pre-trial diversion agreement and sentenced him to serve five years in prison.
This appeal followed.
Peeler claims that the Hardin Circuit Court erred by sentencing him to
prison without a separate sentencing hearing following the court’s determination
that he had violated the conditions of pre-trial diversion, and also by sentencing
him without an updated PSI. We agree and reverse the trial court on the view that
the essence of diversion is postponed sentencing. Upon the failure of pretrial
diversion, a subsequent sentencing proceeding is required as provided by law.
The Kentucky General Assembly established the Pre-trial Diversion
Program in 1998, thereby enabling qualifying defendants to obtain deferred
sentencing for a specified period of time. Flynt v. Commonwealth, 105 S.W.3d
415, 417 (Ky. 2003). When the specified time has elapsed and provided the
defendant has maintained the conditions of the diversion agreement, the charges
against the defendant are dismissed. Hyatt v. Commonwealth, 17 S.W.3d 121, 123
(Ky. App. 2000); Kentucky Revised Statutes (KRS) 533.258(1).
However, if the defendant fails to abide by the agreement and violates
the conditions of pre-trial diversion, “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.” KRS 533.256(1). If the court determines that the
defendant has violated the terms and conditions of his pre-trial diversion agreement
with the Commonwealth, the court must decide whether or not to void the
agreement. KRS 533.256(2). If the court voids the agreement, it must notify the
prosecutor and “the prosecutor shall decide whether or not to proceed on the plea
of guilty in accordance with the law.” KRS 533.256(4). From these provisions,
when the court decides that a defendant has violated the conditions of diversion
and voided the defendant’s agreement with the Commonwealth, the prosecutor has
discretion to seek imposition of sentence pursuant to the guilty plea. The
defendant has the same right to a sentencing hearing as if he or she had pled guilty
without the diversion agreement. U.S. v. Behrens, 375 U.S. 162, 165, 84 S.Ct. 295,
297, 11 L.Ed.2d 224 (1963); RCr 11.02.2 Prior to sentencing the defendant also
has the right to a pre-sentence investigation or an updated pre-sentence
investigation. Fields v. Commonwealth, 123 S.W.3d 914, 917 (Ky. App. 2003);
KRS 532.050; RCr 11.02. See also, Cummings v. Commonwealth, 226 S.W.3d 62
From the architecture of KRS 533.256(1) and (4), it is clear that
separate proceedings are contemplated. There must be a hearing to determine
whether the diversion agreement should be voided, and a subsequent hearing to
determine what action shall be taken thereafter. The Act does not suggest that a
maximum sentence shall be automatically and immediately imposed, as it was in
this case. Moreover, the language of the agreement of the parties, i.e. “the court
may impose a sentence equal or less than the penalty recommended by the
prosecutor,” belies the idea of an automatic maximum sentence. From this
language it is clear that on the defendant’s failure to successfully complete
diversion, the court must determine the appropriate penalty to be imposed, not
exceeding the Commonwealth’s original recommendation.
RCr 11.02(1) provides in part, “The court shall consider the possibility of probation or
conditional discharge and shall afford the defendant and the defendant’s counsel an opportunity
to make a statement or statements in the defendant’s behalf and to present any information in
mitigation of punishment.”
The Supreme Court of Kentucky considered the relationship of the
trial court and the prosecutor in the pretrial diversion process in Flynt v.
Commonwealth, supra, where the Court recognized that diversion under KRS
533.250 is not a sentencing alternative akin to a sentence of probation or
conditional discharge. “The most significant distinguishing feature is that, unlike a
sentence of imprisonment, probation, or conditional discharge, admission into a
diversion program permits a defendant who successfully completes diversion to
avoid a felony conviction entirely. And, we conclude that this interruption of
prosecution prior to final disposition requires the Commonwealth’s agreement.”
Flynt, 105 S.W.3d at 424. In Commonwealth v. Lopez, ___ S.W.3d ___ (Ky. App.
2008), this Court relied on the “interruption of prosecution” view expressed in
Flynt to decide whether the trial court had discretion to permit withdrawal of a
guilty plea after a failed diversion. Answering in the affirmative, we said,
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. 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.
Lopez, ___ S.W.3d at ___. It follows that if the case has not been finally
adjudicated at the diversion stage, there must be a proceeding to achieve finality.
Although Peeler’s defense counsel failed to object to final sentencing
at the diversion revocation hearing, we are not convinced that Peeler had sufficient
notice that final sentencing was about to take place to require an objection, let
alone sufficient time to prepare for an RCr 11.02 sentencing hearing. Edmonson v.
Commonwealth, 725 S.W.2d 595 (Ky. 1987). In any event, sentencing errors are
not held to exacting standards of preservation, and we note that Peeler’s counsel
argued against imprisonment at the revocation hearing. Cummings v.
Commonwealth, supra. We cannot say, therefore, that the result may not have
been different if Peeler had been given his panoply of rights at a separate
sentencing hearing. Commonwealth v. Jeffries, 95 S.W.3d 60 (Ky. 2002).
Accordingly, we vacate the judgment of imprisonment entered herein
and remand this cause to the Hardin Circuit Court for an updated pre-sentencing
investigation and a final sentencing hearing.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Attorney General of Kentucky
David W. Barr
Assistant Attorney General