RENDERED: DECEMBER 18, 2020; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0288-MR AND NO. 2020-CA-0291-MR
AMANDA RICHARDSON APPELLANT
APPEALS FROM MCCREARY CIRCUIT COURT v. HONORABLE DANIEL BALLOU, JUDGE ACTION NOS. 19-CR-00060 AND 19-CR-00087
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: LAMBERT, MAZE, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: In this consolidated appeal, Amanda Richardson
(“Appellant”) appeals from two final judgments and sentences on pleas of guilty to two charges of theft of identity.1 She argues that the trial court abused its
discretion by enforcing a “hammer clause” without following the statutory
guidelines and case law. She also contends that the court erred in levying court
costs to be paid past the one-year cap set out in KRS 534.020(2)(b). For the
reasons stated below, we affirm the trial court’s enforcement of the hammer clause.
We reverse the judgments on the issue of court costs, and remand the matter to
conform the payment plan to the one-year maximum set out in KRS 534.020(2)(b).
FACTS AND PROCEDURAL HISTORY
In 2019, Appellant was indicted on one count of theft of identity in
case No. 19-CR-00060. A few months later, Appellant was indicted on another
count of theft of identity in case No. 19-CR-00087.
On November 25, 2019, Appellant entered into a plea agreement with
the Commonwealth. Under the terms of the agreement, Appellant would enter a
plea of guilty in both cases in exchange for the Commonwealth’s recommendation
of an aggregate five-year sentence to be probated. The plea contained a “hammer
clause,”2 which was reflected in the trial court’s judgments. This clause provided
that Appellant would serve the five-year sentence in lieu of probation if she
1 Kentucky Revised Statutes (“KRS”) 514.160. 2 See Knox v. Commonwealth, 361 S.W.3d 891, 893-94 (Ky. 2012).
-2- violated the conditions of her bond. One of the conditions was that Appellant
refrain from using illegal drugs or alcohol.
On January 27, 2020, Appellant appeared for sentencing. The trial
court asked Appellant if she had been tested for drug use while on bond. When she
answered that she had not been tested, the court took a recess so that a drug field
test could be administered. The test indicated that Appellant had used
methamphetamine while on bond. Appellant claimed that she had not used
methamphetamine, though she had been near her mother who was using it and
perhaps that accounted for Appellant’s positive blood test. The trial court was not
persuaded by Appellant’s claim and utilized the hammer clause to impose a
sentence of five years in prison. This appeal followed.
ANALYSIS
Appellant first argues that the McCreary Circuit Court abused its
discretion by enforcing the hammer clause without following the statutory
guidelines and binding case law. She directs our attention to Knox, supra, in which
the Kentucky Supreme Court determined that a trial court abused its discretion by
imposing a hammer clause without addressing KRS 533.010(1) (sentencing
alternatives), KRS 533.010(2) (alternative sentencing), KRS 532.050(1)
(presentence investigation), KRS 532.110(1) (concurrent or consecutive
sentences), and Kentucky Rules of Criminal Procedure (“RCr”) 11.02 (sentencing).
-3- Appellant asserts that the same error in Knox occurred herein. She
contends that only after prompting from the Commonwealth, and merely to prevent
a technical error, did the trial court pay “lip service” to Knox by memorializing
Knox’s requirements in the final judgments. She asserts that the trial court’s
perfunctory application of the hammer clause at the hearing is what matters, not
what is memorialized in the final judgments. The focus of Appellant’s argument is
that while the final judgments contain language complying with Knox, the trial
court’s own words during the hearing belie what was written in the final
judgments. She maintains that the trial court abused its discretion, and deprived
her of a fair sentencing under the 5th, 6th, and 14th Amendments to the United
States Constitution, as well as §2 and §11 of the Kentucky Constitution. She seeks
an opinion reversing the judgments on appeal.
This issue was not raised below and is not ripe for appellate review.
As such, we may review it only for palpable error.3 Martin v. Commonwealth, 207
S.W.3d 1, 3 (Ky. 2006). “A palpable error which affects the substantial rights of a
party may be considered . . . by an appellate court on appeal, even though
3 Citing Hughes v. Commonwealth, 875 S.W.2d 99, 100 (Ky. 1994), Appellant argues that the trial court’s failure to comply with the sentencing prerequisites of KRS 533.010(1) and (2) is reviewable on appeal even without preservation. Even if Appellant were entitled to a full review as to KRS 533.010(1) and (2), we would find no error. KRS 533.010(1) provides in relevant part that any person convicted of a crime may be sentenced to probation. Appellant was sentenced to probation until such time as she tested positive for methamphetamine. Similarly, KRS 533.010(2) states that “the court shall consider probation.” The record refutes any claim that Appellant was not considered for probation.
-4- insufficiently raised or preserved for review, and appropriate relief may be granted
upon a determination that manifest injustice has resulted from the error.” RCr
10.26. “When an appellate court engages in a palpable error review, its focus is on
what happened and whether the defect is so manifest, fundamental and
unambiguous that it threatens the integrity of the judicial process.” Martin, 207
S.W.3d at 5.
The question for our consideration, then, is whether the McCreary
Circuit Court’s application of the hammer clause and its citation to the statutory
elements addressed in Knox were defects so manifest, fundamental, and
unambiguous as to threaten the integrity of the judicial process. We find no such
defect. Manifest injustice has been found, for example, when the Commonwealth
and the trial judge agreed to “send a message” by sentencing a defendant far in
excess of the statutory maximum penalty. See Martin v. Commonwealth, 456
S.W.3d 1, 12 (Ky. 2015).
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RENDERED: DECEMBER 18, 2020; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0288-MR AND NO. 2020-CA-0291-MR
AMANDA RICHARDSON APPELLANT
APPEALS FROM MCCREARY CIRCUIT COURT v. HONORABLE DANIEL BALLOU, JUDGE ACTION NOS. 19-CR-00060 AND 19-CR-00087
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: LAMBERT, MAZE, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: In this consolidated appeal, Amanda Richardson
(“Appellant”) appeals from two final judgments and sentences on pleas of guilty to two charges of theft of identity.1 She argues that the trial court abused its
discretion by enforcing a “hammer clause” without following the statutory
guidelines and case law. She also contends that the court erred in levying court
costs to be paid past the one-year cap set out in KRS 534.020(2)(b). For the
reasons stated below, we affirm the trial court’s enforcement of the hammer clause.
We reverse the judgments on the issue of court costs, and remand the matter to
conform the payment plan to the one-year maximum set out in KRS 534.020(2)(b).
FACTS AND PROCEDURAL HISTORY
In 2019, Appellant was indicted on one count of theft of identity in
case No. 19-CR-00060. A few months later, Appellant was indicted on another
count of theft of identity in case No. 19-CR-00087.
On November 25, 2019, Appellant entered into a plea agreement with
the Commonwealth. Under the terms of the agreement, Appellant would enter a
plea of guilty in both cases in exchange for the Commonwealth’s recommendation
of an aggregate five-year sentence to be probated. The plea contained a “hammer
clause,”2 which was reflected in the trial court’s judgments. This clause provided
that Appellant would serve the five-year sentence in lieu of probation if she
1 Kentucky Revised Statutes (“KRS”) 514.160. 2 See Knox v. Commonwealth, 361 S.W.3d 891, 893-94 (Ky. 2012).
-2- violated the conditions of her bond. One of the conditions was that Appellant
refrain from using illegal drugs or alcohol.
On January 27, 2020, Appellant appeared for sentencing. The trial
court asked Appellant if she had been tested for drug use while on bond. When she
answered that she had not been tested, the court took a recess so that a drug field
test could be administered. The test indicated that Appellant had used
methamphetamine while on bond. Appellant claimed that she had not used
methamphetamine, though she had been near her mother who was using it and
perhaps that accounted for Appellant’s positive blood test. The trial court was not
persuaded by Appellant’s claim and utilized the hammer clause to impose a
sentence of five years in prison. This appeal followed.
ANALYSIS
Appellant first argues that the McCreary Circuit Court abused its
discretion by enforcing the hammer clause without following the statutory
guidelines and binding case law. She directs our attention to Knox, supra, in which
the Kentucky Supreme Court determined that a trial court abused its discretion by
imposing a hammer clause without addressing KRS 533.010(1) (sentencing
alternatives), KRS 533.010(2) (alternative sentencing), KRS 532.050(1)
(presentence investigation), KRS 532.110(1) (concurrent or consecutive
sentences), and Kentucky Rules of Criminal Procedure (“RCr”) 11.02 (sentencing).
-3- Appellant asserts that the same error in Knox occurred herein. She
contends that only after prompting from the Commonwealth, and merely to prevent
a technical error, did the trial court pay “lip service” to Knox by memorializing
Knox’s requirements in the final judgments. She asserts that the trial court’s
perfunctory application of the hammer clause at the hearing is what matters, not
what is memorialized in the final judgments. The focus of Appellant’s argument is
that while the final judgments contain language complying with Knox, the trial
court’s own words during the hearing belie what was written in the final
judgments. She maintains that the trial court abused its discretion, and deprived
her of a fair sentencing under the 5th, 6th, and 14th Amendments to the United
States Constitution, as well as §2 and §11 of the Kentucky Constitution. She seeks
an opinion reversing the judgments on appeal.
This issue was not raised below and is not ripe for appellate review.
As such, we may review it only for palpable error.3 Martin v. Commonwealth, 207
S.W.3d 1, 3 (Ky. 2006). “A palpable error which affects the substantial rights of a
party may be considered . . . by an appellate court on appeal, even though
3 Citing Hughes v. Commonwealth, 875 S.W.2d 99, 100 (Ky. 1994), Appellant argues that the trial court’s failure to comply with the sentencing prerequisites of KRS 533.010(1) and (2) is reviewable on appeal even without preservation. Even if Appellant were entitled to a full review as to KRS 533.010(1) and (2), we would find no error. KRS 533.010(1) provides in relevant part that any person convicted of a crime may be sentenced to probation. Appellant was sentenced to probation until such time as she tested positive for methamphetamine. Similarly, KRS 533.010(2) states that “the court shall consider probation.” The record refutes any claim that Appellant was not considered for probation.
-4- insufficiently raised or preserved for review, and appropriate relief may be granted
upon a determination that manifest injustice has resulted from the error.” RCr
10.26. “When an appellate court engages in a palpable error review, its focus is on
what happened and whether the defect is so manifest, fundamental and
unambiguous that it threatens the integrity of the judicial process.” Martin, 207
S.W.3d at 5.
The question for our consideration, then, is whether the McCreary
Circuit Court’s application of the hammer clause and its citation to the statutory
elements addressed in Knox were defects so manifest, fundamental, and
unambiguous as to threaten the integrity of the judicial process. We find no such
defect. Manifest injustice has been found, for example, when the Commonwealth
and the trial judge agreed to “send a message” by sentencing a defendant far in
excess of the statutory maximum penalty. See Martin v. Commonwealth, 456
S.W.3d 1, 12 (Ky. 2015). Manifest injustice has also been found when identical
jury instructions for separate offenses potentially deprived the defendant of his
right to a unanimous verdict and to challenge the sufficiency of the evidence on
appeal. Miller v. Commonwealth, 283 S.W.3d 690 (Ky. 2009).
The McCreary Circuit Court applied the hammer clause to which
Appellant had expressly agreed in order to receive a probated sentence. The trial
court repeatedly warned Appellant not to consume illegal drugs or alcohol while
-5- on bond. When the field test indicated that Appellant had used methamphetamine
after expressly agreeing not to do so as part of the plea, the trial court imposed the
underlying five-year sentence. Further, in each final judgment and sentence on
plea of guilty, the trial court expressly addressed the statutory elements set out in
Knox. As noted by the Commonwealth, the trial court “speaks only through
written orders entered upon the official record.” Kindred Nursing Centers Ltd.
Partnership v. Sloan, 329 S.W.3d 347, 349 (Ky. App. 2010) (citations omitted).
As such, its written judgments entered into the record supplant the verbal exchange
at the hearing. We find no manifest injustice which threatened the integrity of the
judicial process.
Appellant also argues that the trial court erred in levying court costs to
be paid in installments spanning more than the one-year maximum set out in KRS
534.020(2)(b) (stating that “all court costs, fees, and fines shall be paid within one
(1) year of the date of sentencing”). The Commonwealth acknowledges error on
this issue, as Appellant’s court costs of $25 per month beginning 90 days after
release could not satisfy the obligation within one year of the date of sentencing.
We agree. See Applegate v. Commonwealth, 577 S.W.3d 83, 88 (Ky. App. 2018).
CONCLUSION
The McCreary Circuit Court’s application of the hammer clause, and
its acknowledgment of the statutory elements addressed in Knox, do not constitute
-6- manifest injustice which threatened the integrity of the judicial process. In
addition, the imposition of court costs must be accomplished in conformity with
KRS 534.020(2)(b). Accordingly, we reverse and remand the judgments of the
McCreary Circuit Court on the sole issue of court costs, and in all other respects
affirm the judgments on appeal.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Robert C. Yang Daniel Cameron Assistant Public Advocate Attorney General of Kentucky Frankfort, Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
-7-