RAYMOND MCCLANAHAN V. COMMONWEALTH OF KENTUCKY
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RENDERED : APRIL 22, 2010
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2008-SC-000033-MR
RAYMOND MCCLANAHAN
OAT
APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
NOS . 06-CR-001910-002, 06-CR-002479-001
AND 06-CR-003335-002
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE VENTERS
REVERSING AND REMANDING
Appellant, Raymond McClanahan, stands convicted of one count of
second-degree robbery, four counts of third-degree burglary, and one count of
theft (over $300) . He was sentenced to a term of imprisonment of thirty-five
years after pleading pursuant to an unusual plea agreement. It is to that plea
agreement and the manner in which the sentence was imposed that the
attention of this Court has been directed. Because the sentence exceeds
twenty years, the appeal is to this Court as a matter of right . Ky. Const . §
110(2)(b) .
Because we conclude that Appellant's sentence exceeds the maximum
legal punishment allowable under the circumstances of this case, and we agree
that the statutes and rules governing the imposition of the sentence were not
properly observed, we reverse and remand this matter for further proceedings
consistent with this opinion .
I . BACKGROUND
Appellant appeared before the Jefferson Circuit Court, along with several
co-defendants, charged under three indictments . Indictment 06-CR-1910
charged Appellant with one count of criminal syndication, two counts of third
degree burglary, and two counts of theft by unlawful taking over $300 .
Indictment 06-CR-2479 charged him with one count of third-degree burglary.'
Indictment 06-CR-3335 charged him with one count of second-degree robbery.
The facts underlying the crimes for which Appellant was convicted are not
germane to this appeal and have not been discussed in the briefs.
Appellant entered into a set of plea agreements with the Commonwealth
to resolve all three indictments . Under Indictment 06-CR-1910, he agreed to
plead guilty to two counts of third-degree burglary and one count of theft by
unlawful taking (over $300) . Under Indictment 06-CR-2479, he agreed to plead
guilty to one count of third-degree burglary. He also agreed to plead guilty to
second-degree robbery as charged in Indictment 06-CR-3335 . In return, the
Commonwealth agreed to recommend a total sentence of ten years in prison for
all the charges, and would object to probation .
1 We find nothing in the record to explain how the final judgments reflected four
burglary convictions despite the fact that Appellant was indicted for, and pled guilty
to, only three burglaries .
Because Appellant wanted to be released from jail pending sentencing so
that he could tend to his family's needs but was unable to post the required
bail, the Commonwealth agreed that Appellant could be released on his own
recognizance, provided that he agreed to what the trial court and the parties in
this case referred to as a "hammer clause." A "hammer clause" is a provision of
a plea agreement, apparently used in some locales, that allows a defendant to
be released on his own recognizance pending sentencing . Ordinarily, the
likelihood of an additional prison sentence for a bailjumping charge provides
adequate incentive to assure that one released from custody without financial
conditions will return to court when scheduled . A plea with a "hammer clause"
differs by providing that, if a defendant fails to return to court for sentencing
(or violates some other agreed-upon condition of release), the Commonwealth
withdraws its original sentencing recommendation and the defendant agrees to
serve a more severe sentence instead .
Each of Appellant's plea agreements included a "hammer clause." Thus,
the Commonwealth would recommend a combination of consecutive and
concurrent sentences that would result in a ten-year prison sentence as long
as Appellant complied with the conditions of his release. However, if Appellant
failed to appear for his sentencing hearing, failed to keep his appointment with
the probation office for the production of his pre-sentence investigation (PSI), or
was charged with any offense, Class B misdemeanor or greater, then instead of
the ten-year sentence, he "agree[d] to serve a 40-year sentence" and to forfeit
his right to seek probation or shock probation . 2 The plea agreements did not
specify how the individual sentences would be structured to achieve the fortyyear term .
On August 24, 2007, Appellant appeared before the trial judge, who
conducted the Boykin colloquy3 before accepting Appellant's guilty pleas .
Appellant was clearly aware of all the terms of his plea agreement . Other
details of that hearing are provided below. The case was assigned for final
sentencing in October 2007 and Appellant was released on his own
recognizance . He failed to appear for sentencing, and a bench warrant for his
arrest was issued .
Appellant was arrested on the warrant and was brought before the court
for sentencing in December 2007 . In the meantime, it was learned that four
2 The language of the "hammer clause" in each of Appellant's cases was substantially
similar, but there were minor variations between each . The clause in the agreement
dealing with indictment number 06-CR-1910 read:
If the 0 fails to appear at sentencing, fails to attend the production of his
PSI, or is charged w/ any offense, class B misdemeanor or greater
between the plea and sentencing dates, the 0 agrees to serve a 40 year
sentence w/ no motion for probation or shock probation.
The clause in the agreement for indictment number 06-CR-2479 read:
The C/W agrees to ROR the 0 pending sentencing, but if the 0 fails to
appear for his PSI, fails to appear for sentencing, or picks up any charges
class B misdemeanor or higher, the 0 agrees to serve a 40 year sentence
w/ no motion for probation or shock probation.
The clause in the agreement for indictment number 06-CR-3335 read:
C/W agrees to ROR the A pending sentencing, but if the 0 fails to appear
for his PSI, fails to appear at sentencing, or picks up any new charges
class B misdemeanor or higher, the A agrees to serve a 40 year sentence
w/ no motion for probation or shock probation.
3 Boykin v. Alabama, 395 U.S . 238 (1969) .
misdemeanor bad check charges had been placed against him since the entry
of his guilty plea. At the hearing, Appellant moved to withdraw his guilty pleas
and requested a continuance so that he could present evidence to show that
when he pled guilty his judgment was impaired by the prescription medications
he was taking for a psychiatric condition . He argued alternatively that the
"hammer clause" should not be invoked and requested an opportunity to
present evidence to explain his failure to appear and the intervening bad check
charges . The trial court denied his motions and proceeded forthwith to impose
the sentence, noting that Appellant's violations had activated the "hammer
clause" of the plea agreement. However, as the judge began to impose the
forty-year sentence, she discovered that the sentences for the individual
charges reflected in the guilty plea judgments added up to only thirty-five
years . She then fixed his sentence at a thirty-five year sentence,4 and entered
final judgments accordingly.
Appellant raised several issues on appeal. First, he argues that before
suffering the enhanced sentence of a "hammer clause," he was entitled to a
jury trial on the factual issues that triggered the enhancement. He relies upon
Apprendi v. New Jersey, 530 U.S . 466, 490 (2000), which holds that "any fact
4 The written judgments on Appellant's guilty pleas do not conform to the actual pleas
he entered, nor do they conform to the written plea agreements. He pled guilty to
four Class-D felonies and one Class-C felony, with maximum sentences adding up to
only 30 years . A footnote in Appellant's Brief implies that the trial court later
reduced the sentence from thirty-five years to thirty years, but we find nothing in the
record to indicate that such an order was entered. The final judgments from which
this appeal is taken reflect a thirty-five year sentence . Therefore, we shall refer to
Appellant's sentence as being thirty-five years . Whether it be thirty-five years or
thirty years is immaterial to our resolution of this appeal .
that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and be proved beyond a reasonable
doubt ." 5 Next, he claims that the trial court improperly interpreted the plea
agreement as imposing strict liability for any breach of the conditions of
release, and thus allowed him no opportunity to show justification for his lack
of compliance . Third, he argues that by prejudging the sentence that would
be imposed, the trial court failed to exercise independent discretion required by
the applicable statutes for the "meaningful" sentencing hearing. Finally, he
argues that the trial court abused its discretion when it denied his motion to
withdraw from the guilty plea and when it denied his motion for a continuance
to obtain evidence in support of his motion . We reverse Appellant's convictions
because the plea agreement with the "hammer clause" resulted in the
imposition of an unlawful sentence, and because we agree with Appellant's
argument that in the acceptance of the plea and imposition of the sentence, the
trial judge did not exercise the independent discretion required for compliance
with the requirements of KRS 533.010(1), 533 .010(2), KRS 532 .050(1), KRS
532 .1 10(l) and RCr 11 .02 . Accordingly, we decline to address the remaining
issues raised by Appellant.
II . ANALYSIS
5 Apprendi involves a legislatively-authorized enhancement of sentence under New
Jersey's hate crime statutes, and not as the quoted section might imply, a sentence
not authorized by statute.
A . THE IMPOSITION OF A SENTENCE IN EXCESS OF THE APPLICABLE
STATUTORY MAXIMUM PENALTY IS IMPERMISSIBLE
This case draws the attention of this Court to the plea agreement concept
referred to above as a "hammer clause." In Jones v. Commonwealth, 995
S.W .2d 363 (Ky. 1999), we upheld a similarly structured plea agreement.
While both parties acknowledge the Jones holding, and neither party
challenges the validity of the "hammer clause" concept, Appellant challenges
the procedure by which the "hammer" provision in this case was activated, and
the thirty-five year sentence that was imposed . The Commonwealth urges this
Court to uphold Appellant's sentence on the basis that, having agreed to serve
a forty-year prison sentence if he violated the conditions of his release,
Appellant simply "got what he bargained for," citing Myers v. Commonwealth,
42 S.W.3d 594, 597 (Ky . 2001) for the principle that a defendant in a criminal
action may waive the statutory maximum sentence and agree to a sentence
beyond the legal range of punishment . See also Johnson v. Commonwealth, 90
S .W .3d 39, 44 (Ky. 2002) . We reject the Commonwealth's argument, and in so
doing we conclude that our analysis in Myers was flawed, warranting its
reconsideration . Appellant's thirty-five year sentence exceeded the lawful range
of punishment established by the General Assembly, and whether agreed upon
or not, the trial court's imposition of such a sentence is a violation of the
separation of powers doctrine embodied in Sections 27 and 28 of the Kentuc
Constitution, and is an abuse of discretion .
First, we note that our decision in Jones, 995 S .W.2d 363, provides no
support for the "hammer clause" now before this Court. Jones was a case of
first impression in which we upheld a plea agreement which called for a
sentence of six years' imprisonment with the proviso that if the defendant
(Jones) failed to appear in court for sentencing, the Commonwealth would
instead recommend a twenty-year sentence. Jones failed to appear for
sentencing, and when he was eventually brought before the court for
sentencing, the court imposed the twenty-year sentence as recommended by
the Commonwealth . Guided by the decisions of federal courts in 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. Garcia-Velilla, 122 F.3d 1 (1st Cir. 1997), 6
we upheld the twenty-year sentence in Jones. Critical to that decision was our
recognition of the fact that the sentence of twenty years was within the range
established by the legislature for Jones's crimes . See Jones, 995 S.W.2d at 366
(stating "[B]oth the six-year and twenty-year sentences were within the
statutorily prescribed range and there was no impermissible reduction of
charges or sentence offered .") . The same cannot be said for Appellant's
sentence in this case .
6 The federal cases cited above and in Jones are based upon the federal system of
determinate sentencing guidelines . In each case, the federal prosecutor offered the
defendant a sentence reduction, authorized by the federal sentencing guidelines, in
return for a defendant's "substantial assistance ." When the defendant in each case
failed to comply with the agreed upon "substantial assistance," the prosecutor
declined to recommend the reduction, and the higher sentence was imposed.
Significantly, in each case, the sentencing alternatives all complied with the federal
sentencing guidelines and were within the range of penalties authorized by Congress.
The forty-year sentence contained in the plea agreements' "hammer
clause," as well as the thirty-five year sentence actually imposed, violate
Kentucky law. KRS 532 .110(1) (c) provides:
(1) When multiple sentences of imprisonment are imposed on a
defendant for more than one (1) crime . . . except that
(c) The aggregate of consecutive indeterminate terms shall not
exceed in maximum length the longest extended term which would
be authorized by KRS 532 .080 for the highest class of crime for
which any of the sentences is imposed. In no event shall the
aggregate of consecutive indeterminate terms exceed seventy (70)
years.
(emphasis added .)
KRS 532 .080 provides, in pertinent part:
(6) (b) If the offense for which he presently stands convicted is a
Class C felony or Class D felony, a persistent felony offender in the
first degree shall be sentenced to an indeterminate term of
imprisonment, the maximum of which shall not be less than ten
(10) years nor more than twenty (20) years.
(emphasis added .)
See Gibbs v. Commonwealth, 208 S .W .3d 848, 855 (Ky. 2006) (reversing 105year sentence on grounds that under KRS 532 .080(6) (b) the longest sentence
one could receive for a combination of Class C and Class D felony convictions
was twenty years.)
Second-degree robbery, a Class C felony, was the highest class of crime
for which Appellant was convicted . KRS 515 .030. Therefore, the aggregate of
the sentences to be imposed upon Appellant could not lawfully exceed twenty
7 See footnote number 4 .
years.8 KRS 532 .110(1)(c) does not give a trial court leeway to impose a greater
sentence. To the contrary, it explicitly states, through its incorporation of KRS
532.080(6)(b),g that the sentence "shall not exceed" twenty years. Unlike the
sentence we upheld in Jones, Appellant's sentence is not "within the statutorily
prescribed range" of punishment . Jones, 995 S .W .2d at 366.
We return now to our reconsideration of Myers. The issue in Myers was
raised by way of RCr 11 .42, alleging the ineffective assistance of counsel who
had advised Myers to accept a plea agreement for a prison sentence, which on
its face, exceeded the limits authorized by KRS 532 .1 10 10(1)(c) By holding that
.
"a defendant may validly waive the maximum aggregate sentence limitation in
KRS 532 .1 10(1) (c) that otherwise would operate to his benefit," Myers, 42
S .W.3d at 597, the Myers Court viewed KRS 532 .110(1)(c) as simply an
enactment creating specific sentencing rights for individual defendants, who
may chose to forego them. We see the statute as an exercise of the General
Assembly's constitutional authority to establish a comprehensive and cohesive
8 There are several statutory exceptions to this general rule . See e.g., KRS 532 .110(3)
(If a person is convicted of an offense that is committed while he is imprisoned in a
penal or reformatory institution, during an escape from imprisonment, or while he
awaits imprisonment, the sentence imposed for that offense may be added to the
portion of the term which remained unserved at the time of the commission of the
offense. The sentence imposed upon any person convicted of an escape or attempted
escape offense shall run consecutively with any other sentence which the defendant
must serve) ; KRS 533 .060(3) (Sentence for crime committed while awaiting trial to
run consecutively with sentence for crime for which person was awaiting trial) . Our
review of Appellant's charges indicates that none of the foregoing exceptions apply to
him.
9 KRS 532 .080 is the persistent felony offender sentencing statute.
10
system of sentencing laws, including the range of punishments that are to be
imposed in the name of the Commonwealth of Kentucky .
In Hoskins v. Maricle, 150 S.W .3d 1, 11-12 (Ky. 2004), we recognized the
extraordinarily strong separation of powers doctrine provided by Sections 27
and 28 of the Kentucky Constitution . 10 In Hoskins we stated, "The power to
define crimes and assign theirpenalties belongs to the legislative department . .
. ." 1d. at 11 (emphasis added) (citing United States v. Evans, 333 U.S . 483,
486 (1948) ("[D]efining crimes and fixing penalties are legislative, not judicial
functions .")) ; Cornelison v. Commonwealth, 52 S .W. 3d 570, 573 (Ky. 2001)
("discretion to define the level of harm and the appropriate punishment is
within purview of Legislature, not this Court")) . Recently, in Sanders v.
Commonwealth, 301 S .W.3d 497 (Ky. 2010), we reversed a persistent felony
offender conviction predicated upon a violation of KRS 218A.500 (Possession of
Drug Paraphernalia) because KRS 532 .080(8) expresses the clear and
unequivocal mandate of the General Assembly that a persistent felony offender
conviction shall not be based upon a violation of KRS 218A.500 . No less
deference is due to the General Assembly's constitutional authority, expressed
through KRS 532 .110(1)(c), for setting the maximum punishment to be
to "Perhaps no state forming a part of the national government of the United States
has a Constitution whose language more emphatically separates and perpetuates what
might be termed the American tripod form of government than does our Constitution .
. . . " Sibert v. Garrett, 197 Ky. 17, 246 S.W . 455, 457 (1922) .
imposed for specific criminal convictions and combinations thereof, which in
Appellant's case is twenty years.
We have otherwise consistently recognized that sentences falling outside
the permissible sentencing range cannot stand uncorrected . In Ratliff v.
Commonwealth, 194 S .W.3d 258, 277 (Ky. 2006), a trial judge failed to note in
the final judgment which of the several multiple sentences totaling 105 years
were to be served concurrently and which were to be served consecutively. We
held, "[i]f the omission was a clerical error and the trial judge intended to
impose a sentence in excess of seventy years, the sentence violates KRS
532 .110(1)(c) ." The judgment must be vacated . . . insofar as it imposes a
maximum aggregate sentence in excess of seventy years ." In the opposite
direction, Neace v. Commonwealth, 978 S .W.2d 319, 322 (Ky. 1998) holds that
the trial court properly corrected a jury verdict setting a lower sentence than
the minimum provided by the statutes. We recognized that "[a]ny other result
would permit juries to re-write penalty statutes and effectively nullify the
sentencing laws . . . [T]he jury's sentencing recommendation fell outside the
required statutory range, and the trial court properly corrected the sentence to
conform to the law."
Under Myers, the parties and the trial court may completely disregard
KRS 532 .110(l)(c) by accepting plea agreements to the contrary. Yet, we see
nothing in the language of the statute to suggest that the General Assembly
The convictions were for one class-A felony and seven class-C felonies, for which
KRS 532 .080 and KRS 533 .110(1) (c) prescribe a maximum penalty of seventy years .
11
12
intended to excuse plea agreements from the mandatory provisions contained
in the statute . Whether recommended by an errant jury or by the parties
through a plea agreement, a sentence that is outside the limits established by
the statutes is still an illegal sentence . We do not see how an illegal sentence
set by a jury (as in Neace) does any more to "nullify the sentencing laws" than
an illegal sentence imposed by a judge pursuant to a plea agreement. There is
no sound rationale by which we should condemn the one as we condone the
other. Under our Constitution, it is the legislative branch that by statute
establishes the ranges of punishments for criminal conduct. It is error for a
trial jury to disregard the sentencing limits established by the legislature, and
no less erroneous for a trial judge to do so by the acceptance of a plea
agreement that disregards those statutes .
Because it is the trial judge, and not the jury or the prosecutor or the
defendant, that actually imposes a sentence by signing his or her name to the
final judgment, it is to the judiciary that the legislative commandments of KRS
532 .080(6)(b) and KRS 532 .110(1)(c) are directed . A sentence that lies outside
the statutory limits is an illegal sentence, and the imposition of an illegal
sentence is inherently an abuse of discretion.
Our conviction in this regard is not swayed by the argument that
Appellant consented to the illegal punishment . As stated above, the statutory
limitations restrain only the authority of a judge to impose an unlawful
sentence ; they do not restrain a party's ability to agree to one . We would not
compel the executive branch to carry out a sentence of corporal punishment,
such as a public whipping, stoning, or dismemberment of the sort that is
lawful in some cultures, but not in our own, simply because the defendant
consented . Our courts must not be complicit in the violation of the public
policy embedded in our sentencing statutes by turning a blind eye to an
unlawful sentence, regardless of a defendant's consent . To the extent they hold
otherwise, Myers, 42 S .W.3d 594, and Johnson, 90 S .W .3d 39, are overruled,
along with any other decisions so holding.
Generally, plea agreements in criminal cases are contracts between the
accused and the Commonwealth, and are interpreted according to ordinary
contract principles. Covington v. Commonwealth, 295 S .W.3d 814, 816 (Ky.
2009) ; O'Neil v. Commonwealth, 114 S .W .3d 860, 863 (Ky. App. 2003) . A widely
recognized principle of contract law is that agreements that run contrary to
law, or are designed to avoid the effect of a statute, are illegal and will not be
enforced. J.L.S. v. T.L.S., 265 S.W .3d 804, 821 (Ky. App. 2008) ; and, 17A Am.
Jur.2d Contracts § 239 (1991) . Because the plea agreement involved here
contravenes KRS 532 .110(1) (c) and KRS 532 .080(6) (b), it is a contract which
our courts may not enforce .
We neither endorse nor condemn the general use of the "hammer clause"
in a plea agreement. Except for Jones, 995 S .W.2d 363, we have had no
opportunity to examine the concept. The sentencing extremes, ten years
versus forty years, posited in this case may not be representative of a typical
"hammer clause." The making of a plea agreement is a matter between the
accused and the Commonwealth . Our disapproval of the specific plea
agreement involved here arises from the fact that its acceptance by the court
resulted in the imposition of an illegal sentence . A "hammer clause" which
remains within the legislatively authorized sentencing ranges remains an
appropriate plea bargaining tool subject to the trial court's review and exercise
of its independent discretion as described in the following section of this
opinion .
We conclude, for the reason set forth above, that the plea agreement
entered into in this case should have been rejected. The acceptance or
rejection of a guilty plea is covered by RCr 8 .10, which provides in pertinent
part:
If the court rejects the plea agreement, the court shall, on the
record, inform the parties of this fact, advise the defendant
personally in open court or, on a showing of good cause, in
camera, that the court is not bound by the plea agreement, afford
the defendant the opportunity to then withdraw the plea, and
advise the defendant that if the defendant persists in that guilty
plea the disposition of the case may be less favorable to the
defendant than that contemplated by the plea agreement.
Accordingly, we reverse and remand this matter to the trial court for
further proceedings permitting Appellant to withdraw his guilty pleas. As part
of its plea negotiation, the Commonwealth agreed to the dismissal of the
criminal syndicate charge and one of the theft charges under Indictment 2006CR-1910 . Reversing this matter and permitting Appellant to withdraw his
pleas allows for the reinstatement of those charges, should the Commonwealth
elect to do so .
B . THE TRIAL JUDGE FAILED TO FOLLOW THE REQUIREMENTS OF
APPLICABLE STATUTES GOVERNING THE IMPOSITION OF THE
APPELLANT'S SENTENCE
Appellant argues that the trial judge, by committing in advance of the
sentencing hearing to apply the forty-year "hammer clause" sentence if a
violation of the conditions occurred, failed to follow the requirements of
applicable sentencing statutes, and failed to exercise independent judicial
discretion at the sentencing hearing. We agree, and begin our discussion of
the issue with a review of the relevant statutes .
KRS 532 .050(1) states that "[n]o court shall impose a sentence for
conviction of a felony, other than a capital offense, without first ordering a
presentence investigation after conviction and giving due consideration to a
written report of the investigation." RCr 11 .02 requires "[b]efore imposing
sentence the court shall . . . examine and consider the (presentence) report . .
[ .]" KRS 533 .010(1) provides "[b]efore imposition of a sentence of
imprisonment, the court shall consider probation, probation with an
alternative sentencing plan, or conditional discharge." The trial court may
impose a sentence of imprisonment (with exceptions not applicable here) only
"after due consideration of the nature and circumstances of the crime and the
history, character and condition of the defendant." KRS 533.010(2) .
Appellant directs our attention to Edmonson v. Commonwealth, 725
S .W .2d 595, 596 (Ky. 1987), wherein we reversed a final judgment in a criminal
case because "the trial judge had either made up her mind as to the sentence
which would be imposed, or she had tentatively decided what sentence to
impose unless the defendant came forward with some compelling reason for
leniency." There, the judge's predisposition to a particular result was evident
because the judgment imposing the sentence had been prepared before the
sentencing hearing, and was simply handed to counsel when the hearing
concluded. We held:
KRS 532 .110(1) grants the trial court discretion to impose
concurrent or consecutive sentences. However, such discretion
must be exercised only after the defendant has had a fair
opportunity to present evidence at a meaningful hearing in favor of
having the sentences run concurrently or present other matters in
mitigation of punishment . The statutes and rule [RCr 11 .02] are
not mere procedural formalities, but are substantive and may not
be ignored.
Id. at 595 .
In the instant case, while it does not appear that the final judgments
were drafted in advance as in Edmonson, our review of the record of both the
guilty plea hearing and the sentencing hearing leaves no doubt that the
sentencing decision had been made prior to the sentencing hearing, and was
made before "due consideration" could have been given to the "nature and
circumstances of the crime and the history, character and condition of the
defendant." KRS 533 .010(2) .
When Appellant entered his guilty pleas, the judge told him, "If you don't
follow through [with the conditions of release], it's forty [years] . . . and, I'm
telling you, it'll be forty [years] and I guess I'm still in shock over that!" At final
sentencing hearing, after denying Appellant's motion for a postponement, the
judge called attention to the plea agreement and said to Appellant's counsel, "If
he [violated a condition of release] he was going to serveforty years . . . . I will
entertain any comments you have, if you'd like to make comments, but I will
tell you that based on my review of the entire case, I will sentence in
accordance with the recommendation [of forty years] ." To Appellant, the judge
said, "Now you're asking the court not to follow the agreement when I told you I
would." The judge disclaimed the sentencing decision, telling Appellant, "I
didn't create the time [referring to the forty-year sentence] . . . Mr.
McClanahan, you made the choice and I'm giving you your choice ." The judge
then asked Appellant, rhetorically, "Is [the forty-year sentence] fair at this
point? Is it just? Yes, because it is in accordance with the law."12 As clearly
as the pre-drafted judgments in Edmondson, the judge's words demonstrated
that independent judgment or discretion, as required by the statutes, had not
been exercised in the imposition of Appellant's sentence.
The above-cited statutes and RCr 11 .02 allow a trial judge to impose a
sentence in a felony case only after due consideration of the presentence report
and all relevant factors . The judge told counsel at sentencing that his
As set forth above, the sentence of forty years, or thirty-five years, was not "in
accordance with the law."
12
comments would be "entertain[ed]" but that the decision to impose a forty-year
sentence had been made . The superficial reference to a "review of the entire
case" was no substitute for the "meaningful hearing" contemplated by our
decision in Edmonson, and required by our statutes . 1 3 The judge reminded
Appellant that she had warned him four months earlier (well before the
presentence investigation was done), what his sentence would be. That
predisposition is inconsistent with Edmonson and the statutes.
The teaching of Edmonson bears repetition : The statutes and RCr 11 .02
are not mere procedural formalities, but are substantive and may not be ignored.
The imposition of a sentence in a criminal case is one of a trial judge's most
solemn responsibilities . In felony cases, it is the circuit court judge who
shoulders the awesome weight of striking the balance between doing justice for
the accused and vindicating the peace and dignity of the Commonwealth . It is
the faithful adherence to the policies of justice embodied in our sentencing
statutes and rules that preserves the great respect and high regard most
citizens of this Commonwealth have for our trial court judges. We refer to the
sound advice offered by Justice Martin E . Johnstone, writing for this Court in
Matheny v. Commonwealth, 37 S .W .3d 756, 759 (Ky. 2001) :
For guidance to the bench and bar, we set forth the preferred
procedure a trial court should follow when accepting a guilty plea
that is made pursuant to a plea agreement. As stated by the Court
of Appeals in Misher v. Commonwealth, [576 S .W.2d 238
"Due consideration" and a "meaningful hearing" should have revealed the fact that
Appellant pled guilty to five offenses but was being sentenced on six, one of which
was not included in an indictment .
13
(Ky.App .1978)], "The sentencing court should merely accept the
plea, note the recommendation or agreement concerning sentence,
and set a day certain for sentencing. No sentencing at all should
be carried out until KRS 532 .050 has been complied with ." Id. at
241 .
By assuring Appellant upon acceptance of his guilty plea that should he
violate the terms of his release, the full force of the "hammer clause" would be
dropped upon him, the judge committed to the imposition of a specific
sentence in a way that precluded true compliance with KRS 532 .050(1), KRS
532 .110(1), KRS 533 .010(1) and (2), and RCr 11 .02 . Following Misher and
Matheny avoids that problem.
III . CONCLUSION
For the reasons set forth above, the final judgments entered against
Appellant are hereby reversed. This matter is remanded to the Jefferson
Circuit Court for further proceedings consistent herewith .
All sitting. All concur.
COUNSEL FOR APPELLANT:
Daniel T. Goyette
Louisville Metro Public Defender
Advocacy Plaza
717-719 West Jefferson Street
Louisville, Kentucky 40202
Bruce P. Hackett
Deputy Appellate Defender
Office of the Louisville Metro Public Defender
Advocacy Plaza
717-719 West Jefferson Street
Louisville, Kentucky 40202
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
Kenneth Wayne Riggs
Assistant Attorney General
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601
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