Alex Pointer v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: December 6, 2024
• Docket: 2023-CA-1076
• Status: Unpublished

Opinion

RENDERED: DECEMBER 6, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1076-MR

ALEX POINTER APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE SARAH E. CLAY, JUDGE ACTION NO. 20-CR-000679

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION REVERSING AND REMANDING

** ** ** ** **

BEFORE: ECKERLE, GOODWINE, AND MCNEILL, JUDGES.

ECKERLE, JUDGE: Pursuant to Kentucky Rule of Civil Procedure (“CR”)

60.02(e) and (f), Appellant, Alex Pointer (“Pointer”), seeks review of the August

14, 2023, Order of the Jefferson Circuit Court denying his motion for relief from

his sentence. While Pointer had reached a plea agreement with Appellee, the

Commonwealth (the “Commonwealth”), that called for either a shorter time of

incarceration or a longer period of probation, the Trial Court imposed a sentence of probation with an alternative condition of serving more than 12 months of

incarceration. After careful review, we reverse and remand the sentence which

was not agreed upon and not authorized under the sentencing statutes. Upon a plea

of guilty, the Trial Court may sentence a defendant in accordance with the

agreement, add certain – but not unlimited – alternative conditions, or reject the

plea entirely and send the case to trial before a jury to recommend a sentence. But

it cannot create its own hybrid form of sentencing that varies significantly from the

agreement and is not authorized by law.

Factual and Procedural Background

On March 12, 2020, the Jefferson County Grand Jury indicted Pointer,

charging him with attempted murder and first-degree assault. Record (“R.”) at 1-2.

The prosecution alleged that Pointer intentionally drove his vehicle into the

driver’s side door of another vehicle where the victim was seated. R. at 86.

Pointer then exited his vehicle, pulled out a gun, and fired at the victim, striking

him eight times. Id. The victim survived. Id. Pointer and the victim share

children with the same woman, who was also in the victim’s vehicle when Pointer

fired the shots.

The case remained on the docket for the next three years. Eventually,

on June 5, 2023, Pointer pled guilty, pursuant to North Carolina v. Alford,1 to first-

1 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

-2- degree wanton endangerment, amended from criminal attempt murder, and assault

under extreme emotional disturbance, amended from first-degree assault. R. at 84-

85. Prior to sentencing, Pointer had served 239 days in custody. Video Record

(“VR”) 7/25/23 at 11:37:34. The Commonwealth’s recommendation, which

Pointer accepted, was five-years for each conviction. R. at 84-85. The

Commonwealth objected to probation, which is a strong stance. Id. The

agreement provided that if the Trial Court granted probation, the two five-year

sentences would run consecutively for a total of ten years. R. at 86-87. However,

if the Trial Court sentenced Pointer to incarceration, the sentences would run

concurrently for a total of five-years’ imprisonment. Id.

On July 25, 2023, the Trial Court conducted a sentencing hearing.

Pointer argued for probation, and the Commonwealth opposed probation based on

the nature of the crime. VR at 11:39:16. After hearing from both sides, the Trial

Court noted the lenience of the plea offer, stating that the facts of the case in

relation to the plea agreement were disturbing as a five-year sentence was too light

for “ramming someone’s vehicle and shooting them eight times.” VR at 11:48:47.

However, the Trial Court did not reject the plea agreement even though it was

within its power to do so. VR at 11:49:41. The Commonwealth had indicated that

the victim did not wish to testify. The Trial Court then sentenced Pointer to a term

of ten years’ imprisonment probated for five years. However, the Court imposed

-3- an additional condition of its own, requiring Pointer to spend 365 days in jail and

successfully complete the Day Reporting Center (“DRC”) program upon

completion of the 365-day jail-term. VR at 11:48:47. In response, Pointer

immediately objected, noting that the sentence was harsher than either sentence

proposed by the Commonwealth. Additionally, the Trial Court refused to allow

Pointer credit for the 239 days he already served towards the 365-day probation

condition. And Pointer would then have to spend even more time completing the

DRC program, which required a lengthy period of home incarceration. The Trial

Court stated that it was “not confident that you won’t be released more quickly

without the kinds of services you need if you’re sent to prison for five years. The

DRC program is the kind of sentence you need.” VR at 11:50:30.

Pointer then moved to withdraw his motion for probation, which the

Trial Court denied. VR at 11:52:21. He had instead requested that he serve the

five-year period with a credit for the 239 days, which would result in his release

much sooner than 365 days more of jail time and then added home incarceration.

Importantly, and perhaps recognizing the leniency of the prosecution’s plea offer

as the Trial Court had done, he did not request to set aside his plea immediately. It

was within Pointer’s rights to make such a request, but he chose not to do so. He

only requested that he serve the five years, and not receive the bargained-for ten-

year probated sentence. The Trial Court then allowed Pointer to withdraw his

-4- motion for probation but it then determined that Pointer would still be probated.

VR at 11:53:00. At this point, Pointer argued the Trial Court had substantially

changed, even abrogated, the agreement between the parties. VR at 11:54:00. The

Trial Court stated that the 365 days in jail and inclusion of the DRC program as a

condition of probation was within its discretion. Id. Again, Pointer did not move

to set aside his plea.

The following day, on July 26, 2023, the Trial Court issued its

Judgment with Sentence of Probation with a ten-year, consecutive sentence

covering both charges, and providing that probation could continue beyond five

years until restitution of $2,000.00 was paid in full. R. at 94-96. As a condition of

probation, the Trial Court required Pointer to spend 365 days in the Louisville

Metro Detention Center (“LMDC”) and upon release, to complete the DRC

program. Id. The Judgment stated that Pointer would be entitled to jail-time credit

for the ten-year sentence, to be calculated by the Kentucky Department of

Corrections (“KDOC”) under KRS2 532.120. Id.

On July 27, 2023, Pointer filed a motion under CR 60.02(e) and (f),

alleging his sentence was illegal and inequitable. R. at 101-103. In his motion,

Pointer stated that the Trial Court imposed a ten-year probated sentence with the

additional conditions that he must serve 365 days in LMDC, complete the DRC

2 Kentucky Revised Statutes.

-5- program, and receive no jail-time credit for the time he spent in jail awaiting his

sentencing for this case. Id. Pointer argued that the conditions of his probation

involving LMDC and home incarceration exceeded the statutory maximum

allowed under KRS 533.030(6). Id. Pointer further asserted the Trial Court had no

authority to deny him the jail-time credit based on KRS 532.120(3). Pointer also

alleged at this point that the Trial Court should have then allowed him to withdraw

his plea under Kentucky Criminal Rule of Procedure (“RCr”) 8.10, because the

Trial Court had in essence already rejected his plea agreement. Id. He neglected

to mention that he did not move to set aside his plea. Pointer did note that he had

withdrawn his request for probation before the Trial Court rendered the probated

sentence. R. at 101-03.

Pointer filed a supplemental motion to vacate on July 27, 2023,

claiming the Trial Court had substituted an illegal sentence for another one by

changing its order to reflect that the jail-time credit would be calculated by KDOC.

R. at 104-06. Additionally, Pointer stated the Trial Court’s sentencing him to

spend 365 days in LMDC followed by completion of the DRC program, which

includes home incarceration, does not cure the illegality of the 365-day cap under

KRS 533.030(6). Id. The Commonwealth responded that placing conditions on

Pointer’s probation did not equate to a rejection of the plea agreement. Id.

-6- On August 14, 2023, the Trial Court held a hearing on Pointer’s CR

60.02 motion. VR 8/14/23 at 11:22:00. Mr. West, who runs the DRC program,

testified. Id. Mr. West described the DRC program as a behavior-based program

where individuals are placed on home incarceration with GPS monitoring, but the

individuals receive more flexibility than the participants of the traditional home

incarceration program. VR at 11:25:30. The program takes an average of 12 to 18

months to complete before being eligible to be removed from home incarceration;

however, an individual can be eligible within six months depending if he

completes the program faster. VR at 11:26:00, 11:39:00, 11:43:00. During oral

arguments, Pointer asserted that the sentence imposed by the Trial Court would

mean that the approximately eight months that Pointer had spent in jail awaiting

the sentencing would not be credited on either the 365 days in jail or the months of

the DRC program. VR at 11-45:11 – 11:56:00. Pointer argued that under this

scenario, he could be in custody while on probation for a period of over two years,

with no credit or opportunity for parole, and that time would be longer than he

would have served if he had been sentenced to five years imprisonment, where he

would be granted credit for his time served and have a chance to see the parole

board. Id. The Trial Court determined that Pointer’s sentence complied with the

law and was within the discretion provided under the applicable statutes. VR at

12:00:06. The Trial Court also believed the DRC program was necessary for

-7- Pointer’s rehabilitation. Id. That Court issued an Order the same day, stating that

Pointer’s motion was denied for the reasons stated on the record. R. at 117. This

appeal follows.

Standard of Review

A motion pursuant to CR 60.02 is reviewed for an abuse of discretion.

Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). “The test for abuse of

discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair,

or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d

941, 945 (Ky. 1999). The Trial Court’s decision will be affirmed unless there is a

showing of some “flagrant miscarriage of justice.” Gross, 648 S.W.2d at 858.

Statutory interpretation is an issue of law which is reviewed de novo. Wheeler &

Clevenger Oil Co., Inc. v. Washburn, 127 S.W.3d 609, 612 (Ky. 2004).

Analysis

On appeal, Pointer argues first that KRS 533.010 and 533.030(6) do

not allow for the imposition of both probation and probation with an alternative

sentence. Second, Pointer notes that sentencing to the DRC program requires the

agreement of the defendant pursuant to KRS 533.017, and he did not agree to the

alternative sentencing plan.

KRS 533.010 states, in important part:

(2) Before imposition of a sentence of imprisonment, the court shall consider probation, probation with an

-8- alternative sentencing plan, or conditional discharge. Unless the defendant is a violent felon as defined in KRS 439.3401 or a statute prohibits probation, shock probation, or conditional discharge, after due consideration of the defendant’s risk and needs assessment, nature and circumstances of the crime, and the history, character, and condition of the defendant, probation or conditional discharge shall be granted, unless the court is of the opinion that imprisonment is necessary for protection of the public[.]

...

(6) Upon initial sentencing of a defendant or upon modification or revocation of probation, when the court deems it in the best interest of the public and the defendant, the court may order probation with the defendant to serve one (1) of the following alternative sentences:

(a) To a halfway house for no more than twelve (12) months;

(b) To home incarceration with or without work release for no more than twelve (12) months;

(c) To jail for a period not to exceed twelve (12) months with or without work release, community service and other programs as required by the court;

(d) To a residential treatment program for the abuse of alcohol or controlled substances;

(e) To a reentry center for no more than twelve (12) months; or

(f) To any other specified counseling program, rehabilitation or treatment program, or facility.

-9- KRS 533.010(2) and (6) (emphasis added). “When engaging in statutory

interpretation, it is imperative that we give the words of the statute their literal

meaning and effectuate the intent of the legislature.” Samons v. Kentucky Farm

Bureau Mut. Ins. Co., 399 S.W.3d 425, 429 (Ky. 2013). Pursuant to KRS

533.010(6), a Trial Court is allowed to impose only one of the provided six

alternative sentencing plans along with probation. Thus, the Trial Court could

order Pointer to serve up to 12 months either in jail or in a home incarceration

program like the DRC program, but not both.

The Commonwealth argues that Pointer’s sentence is consistent with

his plea agreement; thus, the Trial Court did not abuse its discretion by sentencing

Pointer to jail and the DRC program on top of his ten-year, probated sentence. It

is true that “granting of probation is wholly within the discretion of the trial

court,” and the Trial Court has additional discretion to impose conditions on

probation. Burke v. Commonwealth, 506 S.W.3d 307, 314 (Ky. 2016). The

Commonwealth also points to KRS 533.030(6), which states:

(6) When imposing a sentence of probation or conditional discharge, the court, in addition to conditions imposed under this section, may require as a condition of the sentence that the defendant submit to a period of imprisonment in the county jail or to a period of home incarceration at whatever time or intervals, consecutive or nonconsecutive, the court shall determine. The time actually spent in confinement or home incarceration pursuant to this provision shall not exceed twelve (12) months or the maximum term of imprisonment assessed

-10- pursuant to KRS Chapter 532, whichever is the shorter. Time spent in confinement or home incarceration under this subsection shall be credited against the maximum term of imprisonment assessed for the defendant pursuant to KRS Chapter 532, if probation or conditional discharge is revoked and the defendant is sentenced to imprisonment. Any prohibitions against probation, shock probation, or conditional discharge under KRS 533.060(2) or 532.045 shall not apply to persons convicted of a misdemeanor or Class D felony and sentenced to a period of confinement or home incarceration under this section.

KRS 533.030(6). The Commonwealth argues that the above language allows for

the imposition of jail time along with completion of the DRC program as

conditions of Pointer’s probation. The DRC program is a type of home

incarceration program that includes the use of GPS monitoring and is the same

home incarceration program provided by the county jail. VR 8/14/23 at 11:29:00.

During Pointer’s sentencing hearing, Mr. West stated that the DRC program can

take anywhere from six to 18 months to complete, with an average of 12 months.

Id. at 11:32:00.

When interpreting statutes, “a court must not be guided by a single

sentence of a statute but must look to the provisions of the whole statute and its

object and policy.” Cosby v. Commonwealth, 147 S.W.3d 56, 58 (Ky. 2004)

(quoting County of Harlan v. Appalachian Reg’l Healthcare, Inc., 85 S.W.3d 607,

611 (Ky. 2002)). According to the Commonwealth, under Pointer’s interpretation

of the statutory language provided in KRS 533.010 and 533.030, the DRC program

-11- would never be available as a condition of probation because the ending of the

program is fluid and can potentially exceed 12 months. But the issue with

Pointer’s sentence is the condition of 365 days in jail along with additional time

completing the DRC program. KRS 533.010(6) clearly allows for either jail

incarceration or home incarceration as a condition of probation – but not both.

Under any scenario, completion of the DRC program along with spending 365

days in the county jail as a condition of his probation is a violation of KRS

533.010(6). Thus, the Trial Court abused its discretion by sentencing Pointer to

both jail time for a year and then a consecutive home incarceration period.

Furthermore, pursuant to KRS 533.017(2)(c), a defendant must agree

in writing to comply with the program’s written terms and conditions. KRS

533.017(2)(c). The record does not reflect that Pointer has agreed to the DRC

program. In fact, because Pointer brought this appeal arguing that his sentence was

a violation of KRS Chapter 533, it can be said Pointer does not agree to the DRC

program’s terms and conditions.

As for the time Pointer has already served while awaiting sentencing,

the Trial Court did not abuse its discretion when it determined that time to be

credited towards Pointer’s maximum sentence is to be determined by the

corrections board. Pursuant to KRS 532.120(3):

Time spent in custody prior to the commencement of a sentence as a result of the charge that culminated in the

-12- sentence shall be credited by the Department of Corrections toward service of the maximum term of imprisonment in cases involving a felony sentence and by the sentencing court in all other cases. If the sentence is to an indeterminate term of imprisonment, the time spent in custody prior to the commencement of the sentence shall be considered for all purposes as time served in prison.

KRS 532.120(3). In Commonwealth v. Walker, 989 S.W.2d 165 (Ky. 1999), the

Kentucky Supreme Court determined the time that Walker served prior to

sentencing would be credited towards his maximum term of imprisonment of five

years instead of the six months he was ordered to serve in a juvenile detention

center as a condition of his probation. Id. at 165. Therefore, the 239 days Pointer

has spent in custody prior to sentencing was correctly credited towards his

maximum sentence of ten-years’ imprisonment.

Conclusion

For the foregoing reasons the August 14, 2023, Order of the Jefferson

Circuit Court is REVERSED and REMANDED. The Trial Court remains free to

reject the plea agreement officially, sentence Pointer to serve five years in prison,

or sentence him to ten years with probation that may include incarceration of some

sort for no more than 12 months.

ALL CONCUR.

-13- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Rob Eggert Russell Coleman Louisville, Kentucky Attorney General of Kentucky

Matthew R. Krygiel Assistant Attorney General Frankfort, Kentucky

-14-