IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: FEBRUARY 16, 2023 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2022-SC-0030-MR
LAYW THOMAS APPELLANT
ON APPEAL FROM CHRISTIAN CIRCUIT COURT V. HONORABLE JOHN L. ATKINS, JUDGE NOS. 06-CR-00110 & 06-CR-00142
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
In Thomas v. Commonwealth, 605 S.W.3d 545 (Ky. 2020), we concluded
the violent offender statute was inapplicable to youthful offenders for purposes
of consideration of probation even if they are sentenced after reaching the age
of eighteen years and five months. Because the Christian Circuit Court had
erroneously sentenced Layw Thomas, a youthful offender, to a term of
imprisonment on the assumption he was ineligible for probation, we remanded
this matter for resentencing.
Following a hearing on remand, the Christian Circuit Court entered an
amended judgment on a plea of guilty on January 21, 2022, vacating its prior
holding Thomas was ineligible for probation but denying probation “due to the
risk of further crimes, the need for correctional treatment and the fact that
probation would unduly depreciate the seriousness of his criminal behavior.” The trial court reimposed its previously levied sentence of life imprisonment
plus fifty years. Thomas appeals as a matter of right.1 Following a careful
review, we affirm.
The historical factual and procedural background underlying this matter
was set forth in detail in our prior opinion, Thomas, 605 S.W.3d at 548-53, and
need not be fully repeated here. Thus, we will provide only a truncated version
necessary for resolution of the issues presented in this appeal.
In 2006, then-seventeen-year-old Thomas committed a series of crimes
culminating in his being charged in two separate juvenile petitions with
robbery in the first degree, assault in the first degree, wanton endangerment in
the first degree, and murder. Thomas was deemed a youthful offender and his
cases were transferred to circuit court. Following plea negotiations, Thomas—
then nineteen-years-old—agreed to a sentence of twenty years on the murder
charge and a concurrent sentence of twelve years on the remaining charges.
Both plea agreements contained “hammer clauses” permitting the
Commonwealth to seek the maximum aggregate sentence allowed by law if
Thomas failed to appear for sentencing. Based on the plea agreements,
Thomas was released to home incarceration pending sentencing. Thomas
subsequently removed his electronic ankle monitor and disappeared. Following
his rearrest, Thomas was brought before the trial court who denied his pleas
1 Ky. Const. § 110(2)(b).
2 for leniency and enforced the hammer clause provisions, imposing a sentence
of life plus fifty years.
After Thomas unsuccessfully sought post-conviction relief over a seven-
year period, the Court of Appeals ultimately found merit in Thomas’s argument
the trial court had improperly imposed the hammer clauses at sentencing as
punishment for his failure to appear, rather than for the underlying crimes.
Following an evidentiary hearing on remand, the trial court denied Thomas’s
motion to withdraw his guilty pleas, found he was ineligible for probation, and
again imposed a sentence of life imprisonment plus fifty years based on the
hammer clauses.
Thomas appealed and this Court again reversed the trial court upon
concluding it had erroneously found Thomas to be ineligible for probation. We
held Thomas’s other arguments to be without merit, including two challenging
application of the hammer clauses. The matter was again remanded for a new
sentencing hearing at which the trial court was directed to consider probation
and other forms of alternative sentencing. As stated earlier, the trial court
convened a new sentencing hearing, following which it entered an amended
judgment holding Thomas, although eligible, should not be probated and
reimposing its previous sentence. This appeal followed.
For his sole allegation of error, Thomas contends the trial court erred in
failing to consider the developmental differences of juveniles vis-à-vis adults
when enforcing the hammer clauses relative to his sentence. He argues
juveniles should be treated differently from adults and that hammer clauses
3 are particularly problematic when applied to youthful offenders. As noted by
the Commonwealth, although Thomas claims this argument was preserved for
appellate review, he fails to indicate where in the record such preservation can
be located. Our review of the record reveals no such argument was presented
to the trial court. Instead, the arguments made during Thomas’s resentencing
hearing were focused on leniency and mercy in seeking to be granted
probation. There was no argument made in opposition to imposition of the
hammer clauses. Thus, we deem this issue to be unpreserved. Though
Thomas has not sought palpable error review pursuant to RCr2 10.26, we
nevertheless deem his allegation of error to be without merit.
First, Thomas makes only a passing reference to his claim of error and
offers no indication of what the trial court did—or did not—consider when
issuing its judgment. Instead, Thomas generally cites authority supportive of
his position that juveniles should receive different and more favorable
treatment than adults, especially relative to plea agreements containing a
hammer clause. However, he does not indicate how inclusion of hammer
clauses in his plea agreements was inappropriate nor how the cited caselaw
should apply to his situation.
[I]t is not within the purview of the judiciary to tell prosecutors and defense counsel that a hammer clause may not be part of a plea agreement. While the courts have the authority to accept or reject a plea agreement, the making of an agreement whereby the Commonwealth binds itself to recommend a particular sentence is a power of the executive branch.
2 Kentucky Rules of Criminal Procedure.
4 Knox v. Commonwealth, 361 S.W.3d 891, 899 (Ky. 2012) (citations omitted).
Hammer clauses may properly be included in plea agreements provided the
sentencing judge “accord[s] it no special deference, and . . . make[s] no
commitment that compromises the court’s independence or impairs the proper
exercise of judicial discretion.” Id. at 900.
Here, there is no indication the trial court failed in its duty to properly
consider all of the underlying facts and circumstances before making its
sentencing decision to ensure the punishment fit the crime. In fact, the trial
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IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: FEBRUARY 16, 2023 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2022-SC-0030-MR
LAYW THOMAS APPELLANT
ON APPEAL FROM CHRISTIAN CIRCUIT COURT V. HONORABLE JOHN L. ATKINS, JUDGE NOS. 06-CR-00110 & 06-CR-00142
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
In Thomas v. Commonwealth, 605 S.W.3d 545 (Ky. 2020), we concluded
the violent offender statute was inapplicable to youthful offenders for purposes
of consideration of probation even if they are sentenced after reaching the age
of eighteen years and five months. Because the Christian Circuit Court had
erroneously sentenced Layw Thomas, a youthful offender, to a term of
imprisonment on the assumption he was ineligible for probation, we remanded
this matter for resentencing.
Following a hearing on remand, the Christian Circuit Court entered an
amended judgment on a plea of guilty on January 21, 2022, vacating its prior
holding Thomas was ineligible for probation but denying probation “due to the
risk of further crimes, the need for correctional treatment and the fact that
probation would unduly depreciate the seriousness of his criminal behavior.” The trial court reimposed its previously levied sentence of life imprisonment
plus fifty years. Thomas appeals as a matter of right.1 Following a careful
review, we affirm.
The historical factual and procedural background underlying this matter
was set forth in detail in our prior opinion, Thomas, 605 S.W.3d at 548-53, and
need not be fully repeated here. Thus, we will provide only a truncated version
necessary for resolution of the issues presented in this appeal.
In 2006, then-seventeen-year-old Thomas committed a series of crimes
culminating in his being charged in two separate juvenile petitions with
robbery in the first degree, assault in the first degree, wanton endangerment in
the first degree, and murder. Thomas was deemed a youthful offender and his
cases were transferred to circuit court. Following plea negotiations, Thomas—
then nineteen-years-old—agreed to a sentence of twenty years on the murder
charge and a concurrent sentence of twelve years on the remaining charges.
Both plea agreements contained “hammer clauses” permitting the
Commonwealth to seek the maximum aggregate sentence allowed by law if
Thomas failed to appear for sentencing. Based on the plea agreements,
Thomas was released to home incarceration pending sentencing. Thomas
subsequently removed his electronic ankle monitor and disappeared. Following
his rearrest, Thomas was brought before the trial court who denied his pleas
1 Ky. Const. § 110(2)(b).
2 for leniency and enforced the hammer clause provisions, imposing a sentence
of life plus fifty years.
After Thomas unsuccessfully sought post-conviction relief over a seven-
year period, the Court of Appeals ultimately found merit in Thomas’s argument
the trial court had improperly imposed the hammer clauses at sentencing as
punishment for his failure to appear, rather than for the underlying crimes.
Following an evidentiary hearing on remand, the trial court denied Thomas’s
motion to withdraw his guilty pleas, found he was ineligible for probation, and
again imposed a sentence of life imprisonment plus fifty years based on the
hammer clauses.
Thomas appealed and this Court again reversed the trial court upon
concluding it had erroneously found Thomas to be ineligible for probation. We
held Thomas’s other arguments to be without merit, including two challenging
application of the hammer clauses. The matter was again remanded for a new
sentencing hearing at which the trial court was directed to consider probation
and other forms of alternative sentencing. As stated earlier, the trial court
convened a new sentencing hearing, following which it entered an amended
judgment holding Thomas, although eligible, should not be probated and
reimposing its previous sentence. This appeal followed.
For his sole allegation of error, Thomas contends the trial court erred in
failing to consider the developmental differences of juveniles vis-à-vis adults
when enforcing the hammer clauses relative to his sentence. He argues
juveniles should be treated differently from adults and that hammer clauses
3 are particularly problematic when applied to youthful offenders. As noted by
the Commonwealth, although Thomas claims this argument was preserved for
appellate review, he fails to indicate where in the record such preservation can
be located. Our review of the record reveals no such argument was presented
to the trial court. Instead, the arguments made during Thomas’s resentencing
hearing were focused on leniency and mercy in seeking to be granted
probation. There was no argument made in opposition to imposition of the
hammer clauses. Thus, we deem this issue to be unpreserved. Though
Thomas has not sought palpable error review pursuant to RCr2 10.26, we
nevertheless deem his allegation of error to be without merit.
First, Thomas makes only a passing reference to his claim of error and
offers no indication of what the trial court did—or did not—consider when
issuing its judgment. Instead, Thomas generally cites authority supportive of
his position that juveniles should receive different and more favorable
treatment than adults, especially relative to plea agreements containing a
hammer clause. However, he does not indicate how inclusion of hammer
clauses in his plea agreements was inappropriate nor how the cited caselaw
should apply to his situation.
[I]t is not within the purview of the judiciary to tell prosecutors and defense counsel that a hammer clause may not be part of a plea agreement. While the courts have the authority to accept or reject a plea agreement, the making of an agreement whereby the Commonwealth binds itself to recommend a particular sentence is a power of the executive branch.
2 Kentucky Rules of Criminal Procedure.
4 Knox v. Commonwealth, 361 S.W.3d 891, 899 (Ky. 2012) (citations omitted).
Hammer clauses may properly be included in plea agreements provided the
sentencing judge “accord[s] it no special deference, and . . . make[s] no
commitment that compromises the court’s independence or impairs the proper
exercise of judicial discretion.” Id. at 900.
Here, there is no indication the trial court failed in its duty to properly
consider all of the underlying facts and circumstances before making its
sentencing decision to ensure the punishment fit the crime. In fact, the trial
court made explicit oral findings at the conclusion of the sentencing hearing
explaining the considerations and reasoning behind its decision to deny
probation and to impose the maximum sentence permitted. It cannot be
reasonably asserted the trial court improperly adhered to the hammer clauses
nor abandoned its judicial discretion.
Finally, and perhaps most importantly, in his prior appeal to this Court,
Thomas raised multiple challenges to the hammer clauses which we concluded
were wholly without merit and did not warrant discussion.3 Thomas, 605
S.W.3d at 560. The law of the case doctrine prohibits Thomas from attempting
to relitigate the same issues previously presented and rejected. “A final
3 Specifically, Thomas argued: 1) hammer clauses are inappropriate for inclusion in plea agreements for youthful offenders; 2) hammer clauses are highly disfavored by this Court; and 3) children develop differently and should be subject to different sentencing procedures which do not include hammer clauses. He also sought a declaration by this Court that any hammer clause resulting in a maximum sentence for a youthful offender was violative of the United States and Kentucky constitutions. His arguments relied on primarily the same cases cited in this appeal.
5 decision of this Court, whether right or wrong, is the law of the case and is
conclusive of the questions therein resolved.” Williamson v. Commonwealth,
767 S.W.2d 323, 325 (Ky. 1989) (quoting Martin v. Frasure, 352 S.W.2d 817,
818 (Ky. 1961)). The law of the case doctrine is an “iron rule, universally
recognized, that an opinion or decision of an appellate court in the same cause
is the law of the case for a subsequent trial or appeal however erroneous the
opinion or decision may have been.” Union Light, Heat & Power Co. v.
Blackwell’s Adm’r, 291 S.W.2d 539, 542 (Ky. 1956). The doctrine is grounded
on the principle of finality and serves to prevent “the drain on judicial
resources that would result if previous decisions were routinely subject to
reconsideration.” Wright v. Carroll, 452 S.W.3d 127, 130 (Ky. 2014).
The law of the case rule is a salutary rule, grounded on convenience, experience and reason. It has been often said that it would be intolerable if matters once litigated and determined finally could be relitigated between the same parties, for otherwise litigation would be interminable and a judgment supposed to finally settle the rights of the parties would be only a starting point for new litigation.
Blackwell’s Adm’r, 291 S.W.2d at 542. Our prior decision expressly rejected as
meritless the same assertions of error Thomas again brings before this Court.
While Thomas is plainly and understandably dissatisfied and disappointed with
the outcome of his resentencing, a “second bite at the apple” is patently
impermissible under the law of the case doctrine. In short, Thomas has failed
to show entitlement to relief.
For the foregoing reasons, the judgment of the Christian Circuit Court is
affirmed.
6 All sitting. All concur.
COUNSEL FOR APPELLANT:
Angela Slaton Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel J. Cameron Attorney General
Kristin L. Conder Assistant Attorney General