JONES (GREGORY ALLEN) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: OCTOBER 3, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
GREGORY ALLEN JONES
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH MCDONALD-BURKMAN, JUDGE
ACTION NO. 06-CR-003511
COMMONWEALTH OF KENTUCKY
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BEFORE: MOORE AND THOMPSON, JUDGES; HENRY,1 SENIOR JUDGE.
HENRY, SENIOR JUDGE: Gregory Allen Jones appeals from a final judgment
and sentence of the Jefferson Circuit Court adjudging him guilty of three counts of
obtaining or attempting to obtain a controlled substance by fraud or deceit and
sentencing him to 5 years on each count, to run consecutively, for a total of 15
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(b) of the Kentucky Constitution and KRS 21.580.
years to serve. Jones contends that the trial court failed to independently exercise
its discretion in enforcing the sentencing enhancement clause (commonly called a
“hammer clause”) contained in his plea agreement under which the sentences
would run concurrently if he complied with the terms of the clause, but would run
consecutively if he violated them. For the reasons stated below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On October 30, 2006, Jones was indicted upon three counts of
obtaining or attempting to obtain a controlled substance by fraud or deceit, a Class
D felony. Kentucky Revised Statutes (KRS) 218A.140. The charges resulted from
three episodes of “doctor shopping” whereby Jones obtained prescriptions for
Hydrocodone (2 occasions) and OxyCodone (1 occasion), Schedule II narcotics,
without informing the prescribing physicians about previous narcotic prescriptions
he had obtained.
On July 17, 2007, Jones entered into a plea agreement with the
Commonwealth. Pursuant to the agreement Jones would plead guilty to the three
charges, receive a five-year sentence for each charge, and the sentences would run
concurrently. The agreement also contained a sentencing enhancement clause
under which the Commonwealth agreed that Jones would be released prior to
sentencing. The agreement provided that the sentences would run concurrently
unless Jones violated certain provisions of the agreement, in which case the
sentences would run consecutively. The clause stated as follows:
The Comm would agree to the defendant[’s] release prior
to sentencing. If the defendant fails to appear, fails to
cooperate w/ the PSI, gets arrested, or generates any new
charges, the Def. will agree to serve the sentences
consecutive for 15 years.
The plea agreement was accepted by the trial court. It is clear from
the plea agreement hearing that the sentencing enhancement clause was thoroughly
explained to Jones and that he understood it. The trial court went to great lengths
to explain and emphasize the clause and the ramifications of failing to comply with
its terms. Jones does not allege that he did not understand the provision.
Nevertheless, Jones failed to appear for sentencing on August 29, 2007. The
Commonwealth also alleged that Jones failed to cooperate with the completion of
the presentencing investigation (PSI) by failing to appear for a PSI interview.
Upon Jones’s failure to appear for sentencing, a bench warrant was
issued. Jones was eventually apprehended and final sentencing was held on
October 29, 2007. At the hearing defense counsel argued in opposition to
application of the enhancement clause. He argued that Jones had missed his PSI
interview because he had been incarcerated in Scott County, and had missed the
original sentencing hearing because he had been unable to secure transportation
from his home in Jessamine County to Jefferson County.
After hearing arguments upon application of the clause, the trial court
indicated that it could not find any extenuating circumstances to prevent triggering
the clause, and sentenced Jones to 5 years on each of the three counts, to run
consecutively. The trial court additionally denied Jones’ request for probation.
This appeal followed.
Before us, Jones contends that “[t]he trial judge erred by imposing the
higher (15 year) sentence without an independent exercise of discretion. She was
not bound to choose between the two terms of years mentioned in the agreement.”
He additionally notes that KRS 532.110(1) provides that “[w]hen multiple
sentences of imprisonment are imposed on a defendant for more than one (1)
crime, including a crime for which a previous sentence of probation or conditional
discharge has been revoked, the multiple sentences shall run concurrently or
consecutively as the court shall determine at the time of sentence[.]” (Emphasis
As noted by the parties, Jones v. Commonwealth, 995 S.W.2d 363
(Ky. 1999) condones a sentencing enhancement clause, such as the one at issue, as
a component of a plea agreement. In that case,
Jones was indicted for six counts of fraud in violation of
the Charitable and Civic Solicitations Act, six counts of
theft by deception over $300 and two counts of violating
the registration and disclosure requirement of the
Charitable and Civic Solicitations Act. . . .
Jones entered into a plea agreement in which the
Commonwealth recommended a sentence of three years
on each count of fraud contained in counts one through
five of the indictment, with count six being reduced to
criminal facilitation to commit fraud, counts seven
through twelve were reduced to criminal facilitation to
commit theft by deception over $300, and counts thirteen
and fifteen were amended to criminal conspiracy to
violate the Charitable and Civic Solicitation Act. . . . In
addition, the Commonwealth recommended a twelvemonth sentence for each remaining count and also
recommended that all sentences, except those under
counts one and two, run concurrently, for a total of six
As part of the plea bargain, the Commonwealth agreed to
Jones’s release on an unsecured bond of $50,000, with
the understanding that the recommended 6-year sentence
was contingent upon three conditions: 1) that Jones give
a statement of his illegal activities; 2) that he meet with a
member of the Attorney General's office on a set date and
give a full and complete statement; and 3) that he
reappear in court for final sentencing. If Jones complied
with these provisions, the Commonwealth agreed not to
oppose parole in his case, and to advise the parole board
of his cooperation. If he did not comply with these
conditions, the Commonwealth would recommend a
maximum sentence of twenty years instead of six years.
After conducting a guilty plea colloquy, the circuit court
accepted Jones’s guilty plea and released him on the
unsecured $50,000 bond pending his date of sentencing.
Inexplicably, he did not appear on the scheduled date for
sentencing and a bench warrant was issued for his arrest.
Following his arrest several months later, Jones was
sentenced to twenty years in prison in accordance with
the plea agreement.
Id. at 365.
On appeal, Jones argued that the imposition of the twenty year
sentence was improper. Citing United States v. David, 58 F.3d 113 (4th Cir.1995);
United States v. Rivera, 954 F.2d 122 (2nd Cir.1992); and United States v. GarciaVelilla, 122 F.3d 1 (1st Cir.1997), the Supreme Court stated as follows:
The circuit court correctly imposed sentence according to
the Commonwealth's recommendation under the plea
agreement. Jones pled guilty and agreed to abide by the
terms of the plea bargain including the requirement that
he appear in court on the date assigned for sentencing. He
acknowledged his understanding of the possible
sentencing consequences should he fail to appear.
Therefore, because Jones failed to appear for sentencing
the recommended sentence was correctly imposed under
the terms of the plea agreement.
Thus it is clear that a sentence enhancement clause such as the one at
issue herein is a proper term for inclusion in a plea agreement. While the case does
address the issue of the trial court’s discretion in enforcement of such a term,
in Commonwealth v. Reyes, 764 S.W.2d 62, 64 (Ky. 1989), the Supreme Court
recognized that plea agreements are “constitutional contracts” which are binding
and enforceable once an accused enters his plea or takes action to his detriment in
reliance upon the offer. Accordingly, plea agreements are interpreted according to
ordinary contract principles. Elmore v. Commonwealth, 236 S.W.3d 623, 626
(Ky.App. 2007) (citing O'Neil v. Commonwealth, 114 S.W.3d 860, 863 (Ky.App.
2003)). Thus, Jones, like the Commonwealth, was contractually bound by the
terms of the plea agreement, including the sentencing enhancement clause.
Because of the contractual nature of the sentencing enhancement
clause, we disagree with Jones’s argument that the trial court had essentially
unfettered discretion in whether to enforce the provision. The Commonwealth,
too, was entitled to the benefit of its bargain under the plea agreement. Rather,
assuming that the provision was knowingly, willingly, and voluntarily entered into
(as here), we believe that avoidance must be grounded within the normal defenses
for avoidance of a contract, which in an agreement of this type will usually involve
unconscionability or impossibility of performance.
In the usual case of failing to appear for a sentencing hearing
avoidance will involve such situations as illness of the defendant, illness of an
immediate family member, or unavoidable detainment which would excuse
compliance with the terms of the sentencing enhancement clause. In such cases it
is the trial court’s obligation to weigh the merits of the excuse and exercise its
discretion in determining whether to enforce the clause. On the other hand, absent
any excuse, or a patently unreasonable excuse, it would be incumbent upon the
court to enforce the clause; unfettered discretion under such circumstances would
undermine the principle that plea agreements are to be enforced pursuant to
ordinary contract principles.2
In opposition to enforcement of the clause, Jones essentially argued
impossibility of performance. He contended that it was impossible for him to
cooperate with the PSI investigation because he was incarcerated in Scott County
during the relevant time, and that it was impossible for him to attend the original
sentencing hearing because he could not secure transportation from Jessamine
County to Jefferson County.
Similarly, a zone of discretion (but not unfettered) would apply in the case of a “to commit no
other offenses” term. Under normal circumstances the commission of a felony would require the
application of the clause. Broad discretion would remain, however, in the case of violations and
misdemeanors. Enhancement could be unconscionable in the case of, for instance, a minor
traffic violation, whereas the commission of a serious misdemeanor such as fourth degree-assault
would usually require enforcement of the clause.
As previously noted, the trial court heard Jones’s arguments
concerning why he was unable to comply with the terms of the sentencing
enhancement clause. Ultimately, it determined that it could not find any
extenuating circumstances to prevent the triggering of the clause. Further, the trial
court indicated that if the reason for failure to comply “was not of [Jones’s] doing”
then the outcome might be different. Implicit in the trial court’s statements was
that it considered Jones’s arguments for avoidance, and found them to be lacking.
This is indicative of the exercise of independent discretion. Thus, contrary to
Jones’s contention, the record discloses that the trial court did consider the
possibility of avoidance of the provision and did exercise independent judgment in
so doing, but found the grounds proffered by Jones to be insufficient.
Moreover, the trial court’s decision to enforce the clause was a
reasonable exercise of its discretion. There is no evidence or claim that upon
missing (or prior to missing) the original sentencing hearing that Jones sought to
contact the court to inform it of his circumstances.3 To the contrary, following the
missed hearing, he apparently took no action until arrested on the failure to appear
warrant. Similarly, though he may have been incarcerated in Scott County for a
portion of the relevant period, there is no indication in the record that Jones sought
to notify the PSI officer to reschedule his interview, or took any other action to
comply with his duty to cooperate with the preparation of the PSI report.
Moreover, Jones stated that he was released 10 days prior to the originally
It appears that Jones did notify trial counsel the day before the originally scheduled August 29,
2007, sentencing hearing and trial counsel notified the trial court of the circumstances.
scheduled sentencing hearing, and so the excuse would not even be applicable to
In summary, the record reflects that the trial court did weigh the
merits of Jones’s proffered excuses for failing to comply with his obligations under
the sentencing enhancement clause, and found them lacking. This determination is
supported by the record. As such, we are constrained to conclude that the trial
court did not abuse its discretion in enforcing the clause.
For the foregoing reasons the judgment of the Jefferson Circuit Court
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
J. David Niehaus
Deputy Appellate Defender
Office of the Jefferson District Public
Attorney General of Kentucky
Jason B. Moore
Assistant Attorney General