KYCOA - Johnson - Pretrial Diversion

Johnson v. Commonwealth, COA, 1/10/14, not to be published

 The trial court granted pretrial diversion for a period of three years with the condition that Defendant would not commit another offense during the period of pretrial diversion. The pretrial diversion ended in Oct of 2009.  In 2010, the defendant was convicted of two drug offenses.  The trial court refused to list the initial charges as “dismissed-diverted” because the defendant committed offenses after the pretrial diversion period ended. The Court of Appeals reversed because the defendant did not commit any offense during the period of diversion.  

Johnson was represented on appeal by Shannon Dupree Smith, and at trial by Michael McIntire.

Contributed by Emily Rhorer

KYSC - Smith - Diversion Revocation

Michelle Smith v. Commonwealth,  2012-SC-000034-DG, (6/20/13)

In September, 2009, Ms. Smith entered into a diversion agreement after pleading guilty to possession of drug paraphernalia, second or subsequent offense.  At the time, the crime was a Class D felony.  In April, 2010, the crime became a Class A misdemeanor.  In October, 2010, a diversion revocation hearing was held, and Ms. Smith requested that the new law be applied to her.  The trial court refused to do so, and sentenced Ms. Smith to felony time under the old law.  The Court of Appeals affirmed.  The Supreme Court reversed and remanded, holding that since no final judgment had been entered when Ms. Smith violated the terms of her diversion agreement, any law that had gone into effect that would mitigate her sentence should have been applied at her diversion revocation hearing.  Paul Sysol preserved the issue below.

Contributed by Jason Apollo Hart 

KY COA - Kuntz - Pretrial Diversion Revocation

Kuntz, Andrew  -- Court of Appeals, 3/1/13, not to be published. 

Opinion reversing. The Court of Appeals found the trial court did not make sufficient written or oral findings when it revoked his pretrial diversion.  The trial court needed to make these findings regarding Mr. Kuntz’s bona fide efforts to pay child support, or to consider alternative sanctions.  Karen Maurer represented Mr. Kuntz on direct appeal, and Mark Solomon preserved the issue in the circuit court.

Contributed by Julia K. Pearson