Jones v. Commonwealth

413 S.W.3d 306, 2012 WL 6634144, 2012 Ky. App. LEXIS 293

• Court: Court of Appeals of Kentucky
• Decided: December 21, 2012
• Docket: No. 2011-CA-001298-MR
• Status: Published

Opinions

OPINION

STUMBO, Judge:

Billy Jones appeals from the denial of his motion to enter into the deferred prosecution program set forth in Kentucky Revised Statute (KRS) 218A.14151. He argues that the trial court erred in holding that it had no authority to consider whether the prosecution’s reasons for denying deferred prosecution were substantial and compelling. The Commonwealth argues that the granting of deferred prosecution is solely within the province of the prosecution and the trial court cannot substitute its judgment for that of the prosecution. We agree with the argument of the Commonwealth and affirm.

On April 25, 2001, Jones was indicted by a grand jury for three offenses: first-degree possession of a controlled substance, cocaine, first offense; second-degree disorderly conduct; and public intoxication. On July 13, 2011, Jones filed an application for deferred prosecution under KRS 218A.14151. The request was denied. The trial court heard argument on the issue on June 20, 2011, with defense counsel requesting that the Commonwealth Attorney be made to state substantial and compelling reasons why Jones should not be allowed into the deferred prosecution program. The Commonwealth Attorney stated that deferring a prosecution could lead to lost evidence and that granting a diversion, instead of deferring prosecution, is essentially the same thing. The trial court held that it had no authority to order the Commonwealth to defer prosecution because KRS 218A.14151 required the consent of the prosecution.

On July 11, 2011, Jones entered a conditional guilty plea to the possession of a controlled substance charge. The guilty plea was conditioned upon Jones’ right to appeal the denial of his motion for a deferred prosecution. The sentence was instead diverted for a period of three years. This appeal followed.

KRS 218A.1415 states:

(1) A person is guilty of possession of a controlled substance in the first degree when he or she knowingly and unlawfully possesses:

(a) A controlled substance that is classified in Schedules I or II and is a narcotic drug;

(b) A controlled substance analogue;

(c) Methamphetamine;

(d) Lysergic acid diethylamide;

(e) Phencyclidine;

(f) Gamma hydroxybutyric acid (GHB), including its salts, isomers, salts of isomers, and analogues; or

(g) Flunitrazepam, including its salts, isomers, and salts of isomers.

(2) Possession of a controlled substance in the first degree is a Class D felony subject to the following provisions:

(a) The maximum term of incarceration shall be no greater than three (3) years, notwithstanding KRS Chapter 532;

(b) For a person’s first or second offense under this section, he or she may be subject to a period of:

1. Deferred prosecution pursuant to .KRS 218A.14151; or

2. Presumptive probation;

(c) Deferred prosecution under paragraph (b) of this subsection shall be the preferred alternative for a first offense; and

(d) If a person does not enter a deferred prosecution program for his or her first or second offense, he or she shall be subject to a period of presumptive probation, unless a court determines the defendant is not eligible for presumptive probation as defined in KRS 218A.010.

KRS 218A.14151, the statute that describes the deferred prosecution process, states:

(1) A defendant charged with his or her first or second offense under KRS 218A.1415 may enter a deferred prosecution program subject to the following provisions:

(a) The defendant requests deferred prosecution in writing on an application created under KRS 27A.099, and the prosecutor agrees;

(b) The defendant shall not be required to plead guilty or enter an Alford plea as a condition of applying for participation in the deferred prosecution program;

(c) The defendant agrees to the terms and conditions set forth by the Commonwealth’s attorney and approved by the court, which may include any provision authorized for pretrial diversion pursuant to KRS 533.250(l)(h) and (2); and

(d) The maximum length of participation in the program shall be two (2) years.

(2) If a prosecutor denies a defendant’s request to enter a deferred prosecution program, the prosecutor shall state on the record the substantial and compelling reasons why the defendant cannot be safely and effectively supervised in the community, is not amenable to community-based treatment, or poses a significant risk to public safety.

(3) If the defendant successfully completes the deferred prosecution program, the charges against the defendant shall be dismissed, and all records relating to the case, including but not limited to arrest records and records relating to the charges, shall be sealed, except as provided in KRS 27A.099. The offense shall be deemed never to have occurred, except for the purposes of determining the defendant’s eligibility for deferred prosecution ... and the defendant shall not be required to disclose the arrest or other information relating to the charges or participation in the program unless required to do so by state or federal law.

(4) If the defendant is charged with violating the conditions of the program, the court, upon motion of the Commonwealth’s attorney, shall hold a hearing to determine whether the defendant violated the conditions of the program.

(5) If the court finds that the defendant violated the conditions of the program, the court may, with the approval of the prosecutor:

(a) Continue the defendant’s participation in the program;

(b) Change the terms and conditions of the defendant’s participation in the program; or

(c) Order the defendant removed from the program and proceed with ordinary prosecution for the offense charged.

KRS 218A.010(37) defines presumptive probation as:

“Presumptive probation” means a sentence of probation not to exceed the maximum term specified for the offense, subject to conditions otherwise authorized by law, that is presumed to be the appropriate sentence for certain offenses designated in this chapter, notwithstanding contrary provisions of KRS Chapter 533. That presumption shall only be overcome by a finding on the record by the sentencing court of substantial and compelling reasons why the defendant cannot be safely and effectively supervised in the community, is not amenable to community-based treatment, or poses a significant risk to public safety[J

Jones was eligible to enter the deferred prosecution program under KRS 218A.1415(2)(b) because he was charged with possession of a controlled substance, first offense. In this instance, Jones was denied entry into the program because the Commonwealth Attorney was afraid of losing evidence should Jones later be removed from the program, making a later prosecution against him harder. Jones’ primary argument is that the Commonwealth Attorney did not set forth sufficient reasons why he was denied entry into the program as required by KRS 218A.1415K2).

KRS 218A.14151(2) states:

If a prosecutor denies a defendant’s request to enter a deferred prosecution program, the prosecutor shall state on the record the substantial and compelling reasons why the defendant cannot be safely and effectively supervised in the community, is not amenable to community-based treatment, or poses a significant risk to public safety.

Jones argues that this section forces the Commonwealth to state on the record why it denied him entry into the deferred prosecution program and that said reasons must be “substantial and compelling reasons why the defendant cannot be safely and effectively supervised in the community, is not amenable to community-based treatment, or poses a significant risk to public safety.” Jones claims that the Commonwealth’s reasons in this instance do not fall under one of the three substantial and compelling reasons set forth in this section of the statute. However, the trial court found that it had no authority to question the prosecution’s reasoning.

The Commonwealth argued, and the trial court agreed, that determining whether to allow a defendant into a deferred prosecution program is within the sole discretion of the prosecution because the prosecutor must agree to allow the defendant into the program. KRS 218A.14151(l)(a). The Commonwealth also claims deferred prosecution is similar to pretrial diversion, and entry into pretrial diversion has been held by the Kentucky Supreme Court in Flynt v. Commonwealth, 105 S.W.3d 415 (Ky.2003), to be solely the decision of the prosecution. Finally, the Commonwealth now argues that Jones’ interpretation of KRS 218A.14151(2) is incorrect. We find the claims of the Commonwealth have merit.

First we will address the interpretation of KRS 218A.1415K2). The Commonwealth argues that after it denies entry into the deferred prosecution program it must then take a position on presumptive probation, by stating “on the record the substantial and compelling reasons why the defendant cannot be safely and effectively supervised in the community, is not amenable to community-based treatment, or poses a significant risk to public safety.” As can be seen from the above definition of presumptive probation, it has the same “substantial and compelling” language as KRS 218A.14151(2). We therefore agree with the Commonwealth that after denying entry into the deferred prosecution program, the Commonwealth must take a position on the issue of presumptive probation. The “substantial and compelling” reasons required by the statute are not reasons for denying deferred prosecutions.

When KRS 218A.1415 and KRS 218A.14151 are read in conjunction, it is clear this is the correct interpretation. According to KRS 218A.1415, for a person’s first or second offense of possession of a controlled substance, he or she may be subject to deferred prosecution or presumptive probation. KRS 218A.14151 then states that if deferred prosecution is denied, the Commonwealth must state on the record its opinion as to whether presumptive probation would be appropriate.

Moreover, as the Commonwealth argues, this interpretation is the only interpretation which would not be violative of the Kentucky Constitution’s separation of powers provisions. The Commonwealth relies.on Flynt v. Commonwealth, supra, for its argument. Flynt involved two separate criminal cases from' different divisions of the Kenton Circuit Court. In both cases, the Commonwealth objected to the defendant’s pretrial diversion applications. In one case, the Third Division of the Kenton Circuit Court denied the defendant’s application for pretrial diversion. It found that it could not grant diversion absent the Commonwealth’s consent. The defendant then appealed. In the other case, the Second Division of the Kenton Circuit Court granted the diversion application over the objection of the Commonwealth. The Commonwealth then appealed. The two cases were consolidated for appeal to the Kentucky Supreme Court.

The issue in Flynt was whether KRS 533.250, the pretrial diversion statute, requires the consent of the Commonwealth before entry into pretrial diversion or if a circuit court judge could intervene. The language at issue is found in KRS 533.250(6), which states: “[t]he Commonwealth’s attorney shall make a recommendation upon each application for pretrial diversion to the Circuit Judge in the court in which the case would be tried. The court may approve or disapprove the diversion.” ¹ One of the Flynt defendants argued that allowing the court to approve or disapprove the diversion allowed the judge to grant diversion over the Commonwealth’s objection.

The Kentucky Supreme Court ultimately held that granting pretrial diversion is solely a power of the Commonwealth because it is an interruption of the prosecution prior to final adjudication and allows a defendant, upon completion of the program, to avoid a felony conviction. Flynt, at 424. The Court found that allowing a court to unilaterally approve entry into pretrial diversion over the objection of the Commonwealth would be a separation of powers violation because “[i]t is manifest that the prosecution of crime is an executive function and that ‘the duty of the executive department is to enforce the criminal laws.’ ” Id. (citation omitted).

The issue in the case at bar is similar. KRS 218A.14151 specifically requires the Commonwealth to agree to deferred prosecution. The granting of deferred prosecution is an interruption of the prosecution because it allows a defendant to have the charges against him dismissed with prejudice. If we were to accept Jones’ interpretation of the statute that the Commonwealth must state “on the record the substantial and compelling reasons why the defendant cannot be safely and effectively supervised in the community, is not amenable to community-based treatment, or poses a significant risk to public safety!,]” a trial court could grant entry into the deferred prosecution program over the Commonwealth’s objection. A trial court may well find the reasons stated by the Commonwealth for denying entry into the program are not substantial or compelling, thereby requiring the Commonwealth to reconsider its position or granting entry into the program over the Commonwealth’s objection. The holding in Flynt is just as applicable to this deferred prosecution statute and would not allow for Jones’ interpretation.

“Where a statute is reasonably susceptible of two constructions, one of which will uphold the validity thereof, and the other would render it unconstitutional, the court must adopt the construction which sustains the constitutionality of the statute.” American Trucking Ass’n, Inc. v. Commonwealth, Transp. Cabinet, 676 S.W.2d 785, 789-90 (Ky.1984) (citation omitted). Here, the statute is open to two interpretations, but only the Commonwealth’s sustains the constitutionality of the statute.

Based on the foregoing, we affirm the judgment of the Graves Circuit Court.

ACREE, Chief Judge, Concurs.

NICKEL'L, Judge, Concurs and files separate opinion.

1 . This is the citation from the current version of the statute. The language is identical to the version of the statute used in Flynt.