KYCOA - Sturgill - Withdrawal of Plea

Jimmie Sturgill v. Commonwealth (two consolidated cases), Kentucky Court of Appeals, to be published (9/15/17):  

Jimmie Sturgill accepted the Commonwealth’s guilty plea offer on two separate but related cases.  At the sentencing hearing for the two cases, defense counsel told the court Sturgill had contacted him a few weeks before and said he wanted to withdraw his pleas.  Defense counsel told the court the motion to withdraw was “absolutely” against his advice.  Defense counsel also told the court that if it granted the motion to withdraw the pleas, he wanted to be removed from Sturgill’s cases.

The court placed Sturgill under oath and asked him a series of questions about why he wanted to withdraw the pleas.  Defense counsel and the Commonwealth then did the same.  During questioning from the Commonwealth, Sturgill said the plea was “against my will” and he had not wanted to do it.  Neither defense counsel nor the court followed up with any questions about that statement.  The court found Sturgill’s testimony to be “incredible” and said Sturgill simply changing his mind or having regrets was not sufficient reason to withdraw the plea.  The court sentenced Sturgill to the agreed-upon sentence.

On appeal, the Court of Appeals vacated and remanded the convictions.  It found Sturgill was denied effective representation at the withdrawal hearing because defense counsel adamantly opposed Sturgill’s attempt to withdraw his pleas.  It said it was troubling that defense counsel did not specifically ask why Sturgill felt he made the pleas against his will.  On remand, Sturgill will be returned to the point in time between when he accepted the guilty plea and before he sought to withdraw it.  Steven Buck represented Mr. Sturgill on appeal.

KYCOA - Bentley - Insurance company is not a victim for restitution purposes

Jonathan Bentley v. Commonwealth, 

Kentucky Court of Appeals, to be published (7/29/16).  

Bentley entered a conditional guilty plea to receiving stolen property.  He was ordered to pay restitution of $1,000 to the victims of the theft and $11,000 to the victims’ insurance provider.  The insurance company had paid the victims $12,000 under a homeowner’s policy, with $1,000 amounting to the victims’ deductible under the policy.  The Court of Appeals reversed the portion of the final judgment ordering restitution to the insurance provider because the insurance company was not a victim in this case as defined by KRS 533.030(3).  

The Court distinguished Bentley’s case from Commonwealth v. Morseman because, while the Morseman Court found it was proper for that defendant to pay restitution to an insurance company, it was only because that insurance company was the victim of the crime for which Morseman was convicted, insurance fraud.  The Court affirmed the portion of the judgment ordering Bentley to pay restitution of $1,000 to the victims because the victims had paid that amount out-of-pocket to cover their deductible.  

Matt Michalovic represented Mr. Bentley in Letcher Circuit Court.  

Steven Buck represented Mr. Bentley on appeal.

KYSC - Gamble - 2nd Degree Trafficking Enhancement

Commonwealth v. Gamble, 2013-SC-000141, rendered 2/19/15, to be published, reversing.

A defendant can have his sentence enhanced as a persistent felony offender (PFO) when his underlying felony is second-degree trafficking in a controlled substance.

The second-degree trafficking statue states that, for anyone who traffics in any quantity of a controlled substance specified in the statute in an amount less than the amounts specified in the statute, “except that KRS Chapter 532 to the contrary notwithstanding, the maximum sentence shall be no greater than three (3) years.”  (See KRS 218A.1413(2)(b)(1).)  The Court found that “except that KRS Chapter 532 to the contrary notwithstanding” refers expressly to the Class D felony categorization and penalty range espoused in KRS 532.060, not to the portion of Chapter 532 that deals with PFO enhancement.  The Court also said that, because the PFO statute expressly prohibits the enhancement of a first-degree possession of a controlled substance sentence (see KRS 532.080(8)) but is silent on second-degree trafficking, the General Assembly demonstrated that second-degree trafficking is eligible for PFO enhancement.

The Court concluded by stating that in the event the General Assembly intended on preventing a second-degree trafficking in a controlled substance conviction from being enhanced by the PFO statute, it can expressly amend the statute to better reflect its intent in the future.

Contributed by Stephen Buck 

KY COA - Reilly - Deferred Prosecution

Reilly v. Commonwealth, 2011-CA-001608 (To Be Published) 

The Court of Appeals held that KRS 218A.14151(2) does not require a prosecutor to state substantial and compelling reasons for denying deferred prosecution to an eligible person.  Rather, according to the Court, that statute requires the prosecutor to state an opinion on whether the defendant should receive presumptive probation when deferred prosecution has already been denied.  

The Court of Appeals also holds that a judge cannot grant presumptive probation to a defendant without the prosecutor’s agreement, “[T]he court is without authority to question the prosecutor’s motives when it rejects a request to defer prosecution or to order probation without the prosecutor’s agreement.”  

The Court held that the defendant’s interpretation of the statute, allowing a trial court to decide whether a prosecutor had stated substantial and compelling reasons for denying deferred prosecution, would violate the separation of powers doctrine, citing Flynt v. Commonwealth, 105 S.W.3d 415 (Ky. 2003).  [Petition for rehearing/motion for discretionary likely to be filed.]

Contributed by Stephen Buck 

KYCOA - Lewis - Sufficiency of Evidence for Robbery

Lewis v. Commonwealth, 2012-CA-000244 (To Be Published)

The Court of Appeals held that sufficient evidence of Second-degree Robbery exists when the defendant kept his hands in his pockets and propped one arm upon the counter as he demanded money from a convenience store clerk.  It is reasonable for a victim to assume one making such demand for money might be armed and have a weapon in his pocket in light of the robber’s act of keeping his hands in his pockets and placing one arm on the counter during the crime.

Contributed by Stephen Buck