Richard Delong v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: October 26, 2023
• Docket: 2022 CA 001038
• Status: Unknown

Opinion

RENDERED: OCTOBER 27, 2023; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2022-CA-1038-MR

RICHARD DELONG APPELLANT

APPEAL FROM CASEY CIRCUIT COURT v. HONORABLE JUDY VANCE MURPHY, JUDGE ACTION NO. 21-CR-00136

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: CALDWELL, DIXON, AND EASTON, JUDGES.

EASTON, JUDGE: The Appellant, Richard DeLong (“DeLong”), pled guilty to

various offenses after accepting the Commonwealth’s Offer on Plea of Guilty. The

Commonwealth’s Offer recommended a six-year sentence for DeLong; however,

the agreement also contained a “hammer clause” which would increase his

sentence to up to fourteen years if he did not appear for final sentencing or violated

release conditions. DeLong failed to appear for his sentencing. The Casey Circuit

Court later applied the hammer clause, and DeLong was sentenced to the enhanced fourteen-year sentence. DeLong appeals the application of the hammer clause.

We affirm.

FACTS AND PROCEDURAL HISTORY

According to the initial citation, on April 10, 2021, DeLong was under

the influence of substances when he beat and strangled his wife leaving visible

marks. DeLong has a disturbing history of committing domestic violence with

numerous protection orders involving not just his wife but also his mother.

DeLong fled the scene but returned driving a truck. At that time, DeLong’s license

was suspended for a prior DUI1 conviction. A search revealed methamphetamine

and other drug items. DeLong had to be given Narcan2 during his interaction with

the police.

DeLong was indicted for the following charges: Trafficking in

Controlled Substance in the First Degree; Strangulation in the First Degree;

Assault in the Fourth Degree (Domestic Violence), Third or Subsequent Offense

Within Five (5) Years; Operating a Motor Vehicle While Under the Influence of

Controlled Substance, Third Offense; Possession of Marijuana; Operating on a

Suspended/Revoked Operator’s License; and Possession of Drug Paraphernalia.

DeLong initially entered a plea of not guilty.

1 Abbreviation for driving under the influence. 2 A medication used to revive in opiate overdose situations.

-2- DeLong and the Commonwealth entered into discussions regarding a

potential plea agreement. The Commonwealth presented its Offer on Plea of

Guilty to DeLong and his attorney. In exchange for a guilty plea, the

Commonwealth offered to amend the count of Trafficking in Controlled Substance

in First Degree to Possession of a Controlled Substance in First Degree. The

Commonwealth also offered to recommend that all counts run concurrently for a

total prison sentence of six years. The Commonwealth’s Offer contained the

following condition to ensure DeLong’s good behavior while out on bond pending

sentencing:

THIS OFFER IS ALSO CONDITIONED ON THE FOLLOWING:

...

2. If the Defendant violates any condition of bond pending final sentencing; or if the Defendant commits a criminal offense while awaiting final sentencing; or if the Defendant fails to appear at his/her scheduled court date for final sentencing, then the Commonwealth may recommend a total sentence in this case not to exceed fourteen (14) years and the Commonwealth will oppose probation.

(Emphasis in original.) DeLong and his attorney accepted and signed the

Commonwealth’s Offer.

DeLong and the Commonwealth then presented the proposed plea

agreement to the circuit court. On September 22, 2021, the circuit court held a

-3- hearing pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d

274 (1969), to determine whether DeLong’s guilty plea was being made

voluntarily and intelligently. DeLong was represented by counsel.

The circuit court conducted a colloquy with DeLong. DeLong stated

he had plenty of time to look over the plea paperwork with his attorney, and that he

had no further questions for his attorney before proceeding with the guilty plea.

The circuit court confirmed DeLong was not on any medications, drugs, or alcohol

that would impair his judgment. The circuit court addressed each constitutional

right DeLong would be waiving by pleading guilty; DeLong responded he

understood. The court asked DeLong if his plea was being made freely,

knowingly, intelligently, and voluntarily, to which he replied in the affirmative.

DeLong’s attorney indicated she went over the terms of the plea agreement with

her client, and that DeLong was entering his guilty plea freely, knowingly,

intelligently, and voluntarily.

DeLong then pled guilty to all counts pursuant to the agreement. The

circuit court accepted DeLong’s guilty plea. The circuit court set DeLong’s final

sentencing for October 25, 2021.

A few days after pleading guilty, DeLong was released pending final

sentencing on a $2,500.00 bond. DeLong was required to wear an ankle monitor

while out on bond. DeLong was released on the conditions that he commit no

-4- further violations of the law, have no contact with the alleged victim, make all

scheduled court appearances, and submit to random drug testing. DeLong’s next

scheduled court date of October 25, 2021, was clearly indicated on his bond release

form, and the date was discussed on the record at the time of his plea. DeLong

signed the bond release form, confirming that he understood and agreed to the

penalties “which may be imposed upon [him] for willful failure to appear or

violation of any condition of release and [he] agree[d] to comply with the

conditions of [his] release and to appear as required.”

DeLong failed to appear for his sentencing on the scheduled date.

Consequently, the circuit court issued a bench warrant for DeLong’s arrest.

DeLong absconded for approximately seven months until he was arrested in May

2022 and was returned to the circuit court on May 23, 2022, to schedule a

sentencing date.

DeLong’s rescheduled sentencing hearing occurred in two parts. It

began on June 27, 2022, and was completed on July 11, 2022. At both hearings,

DeLong and his counsel acknowledged the presentence report with no substantial

changes. When it became apparent the hammer clause would be an issue, the

circuit court continued the hearing to the second date. At neither appearance did

DeLong seem surprised about the discussion of a fourteen-year sentence.

-5- At the final sentencing hearing, DeLong’s counsel stated DeLong had

cut off his ankle monitor and was going through personal issues. Defense counsel

acknowledged DeLong made a “bad decision” but argued that the court had the

discretion to sentence DeLong to a term between six and fourteen years. Defense

counsel argued for a sentence of eight to ten years.

DeLong said he had been in rehab when he failed to appear for his

initial sentencing date. DeLong presented no documentary evidence of his rehab

attendance, much less a successful completion of it. DeLong stated this rehab

“changed [him],” but it did not apparently change him enough for him to surrender

and deal with his failure to appear and its serious consequences.

DeLong stated he understood the circuit court could increase his

sentence up to fourteen years, but he asked the court for leniency. The

Commonwealth asked the court to impose the hammer clause for the following

reasons: (1) DeLong cut off his ankle monitor; (2) he did not appear for final

sentencing and absconded for almost seven months; (3) he had four prior

convictions for Assault in the Fourth Degree; and (4) that he had at least eight

Emergency Protection Orders taken out against him. The Commonwealth added it

opposed probation. The circuit judge stated she reviewed the presentence report.

The judge agreed with the Commonwealth and applied the hammer clause due to

DeLong’s “actions while out on bond.”

-6- In its written Judgment sentencing DeLong, the circuit court stated it

gave due consideration to the contents of the presentence report, the nature and

circumstances of the crime, and to the history, character, and condition of the

defendant. The circuit court concluded DeLong’s imprisonment was necessary for

the protection of the public because probation, probation with an alternative

sentencing plan, or conditional discharge would unduly depreciate the seriousness

of DeLong’s crime. This appeal followed.

STANDARD OF REVIEW

Whether a circuit court properly applied a hammer clause is

reviewed for abuse of discretion. Prater v. Commonwealth, 421 S.W.3d 380, 384

(Ky. 2014) (citing Knox v. Commonwealth, 361 S.W.3d 891, 899 (Ky. 2012)).

“The test for an abuse of discretion is whether the trial judge’s decision was

arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”

Anderson v. Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007).

ANALYSIS

DeLong argues the circuit court erred when it enforced the hammer

clause enhancing his sentence from six to fourteen years. Specifically, DeLong

argues the circuit court erred by failing to consider options and not making an

independent determination of the appropriate sentence. DeLong mostly relies on

-7- the cases of McClanahan v. Commonwealth, 308 S.W.3d 694 (Ky. 2010), and

Knox, supra.

In McClanahan, the defendant (“McClanahan”) triggered a hammer

clause in his plea agreement by violating the conditions governing his release from

custody prior to sentencing. McClanahan, supra, at 697. McClanahan was

brought before the circuit court for sentencing. Id. On motion of the

Commonwealth, the circuit court enhanced McClanahan’s sentence from ten years

to thirty-five years based solely upon the hammer clause. Id.

The Kentucky Supreme Court reversed McClanahan’s enhanced

sentence because the circuit court erred by committing in advance when the plea

was taken to apply the enhanced sentence contained in the hammer clause. Id. at

702. The circuit court failed to exercise independent judicial discretion at

McClanahan’s sentencing hearing by failing to follow the requirements of

applicable statutes governing the imposition of the defendant’s sentence. Id.

The court in McClanahan reviewed the sentencing statutes the circuit

court had failed to follow. KRS3 532.050(1) states: “No court shall impose a

sentence for conviction of a felony, other than a capital offense, without first

ordering a presentence investigation after conviction and giving due consideration

3 Kentucky Revised Statutes.

-8- to a written report of the investigation.” RCr4 11.02 requires that, before imposing

a sentence, the court shall examine and consider the presentence report. KRS

533.010(2) states, in part: “Before imposition of a sentence of imprisonment, the

court shall consider probation, probation with an alternative sentencing plan, or

conditional discharge.” Unless there are certain statutory exceptions, none of

which were applicable in McClanahan, a circuit court may only impose a prison

sentence “after due consideration of the . . . nature and circumstances of the crime,

and the history, character, and condition of the defendant[.]” Id. “The statutes and

rule [RCr 11.02] are not mere procedural formalities, but are substantive and may

not be ignored.” McClanahan, 308 S.W.3d at 703 (quoting Edmonson v.

Commonwealth, 725 S.W.2d 595, 596 (Ky. 1987)).

Knox is the other case Delong cites. In Knox, the Commonwealth

reached a plea agreement with the defendant (“Knox”), whereby the

Commonwealth agreed to recommend a prison sentence of ten years on each of the

defendant’s eight counts of robbery. Knox, 361 S.W.3d at 893. The plea

agreement contained a hammer clause providing that, if Knox violated conditions

of his presentence release, his sentence would be enhanced to twenty years. Id. at

894. Knox violated the conditions of his release, and a hearing was held. Id. The

Commonwealth recommended the twenty-year sentence pursuant to the hammer

4 Kentucky Rules of Criminal Procedure.

-9- clause. Id. Knox asked the judge to consider imposing an alternative sentence. Id.

The judge imposed the hammer clause, noting Knox agreed to the hammer clause

“and therefore, I am going to impose it.” Id. at 895.

The Kentucky Supreme Court reviewed the sentencing method it

found unacceptable in McClanahan and determined the circuit court in Knox

similarly failed to comply with the sentencing statutes. Id. at 893. The court

reversed and remanded on the basis that the circuit court abused its discretion “by

committing to the imposition of a sentence based solely on the hammer clause, and

not upon information contained in the presentence report or upon a case-specific

consideration of the circumstances of the crime and the history, character and

condition of the defendant.” Id. at 895. There was no indication in the record that

the circuit judge might have considered an alternative sentence. Id. at 897.

Further, the judge did not speak a word about the presentence report at the

sentencing hearing, and he did not mention he gave due consideration to the report

in the final written judgment. Id.

Using the rulings in McClanahan and Knox as guideposts, we believe

the circuit court in the present case properly exercised independent judicial

discretion when sentencing DeLong. The circuit court reviewed DeLong’s

presentence report. The circuit court considered and rejected an alternative

sentence. The circuit court considered “the nature and circumstances of the crime”

-10- as well as DeLong’s “history, character and condition.” The circuit court did not

abuse its discretion in sentencing DeLong, as the record shows the hammer clause

was one of multiple factors considered. The record supports the written findings

by the circuit court in its final Judgment in this case.

DeLong’s related argument is that the circuit court did not ensure that

he understood the hammer clause during the plea colloquy. DeLong asserts the

circuit court did not inquire into his understanding of what the hammer clause

could mean. This argument was not made in the circuit court at either of the

sentencing hearings. Further, DeLong did not mention this issue in any of his

many handwritten letters to the circuit court. Therefore, DeLong’s argument that

he did not understand the hammer clause was not preserved for review. Issues not

raised by a party and thus not adjudicated by the trial court will not be considered

when raised for the first time on appeal. See Regional Jail Authority v. Tackett,

770 S.W.2d 225 (Ky. 1989).

Even if we consider DeLong’s argument about his understanding, his

appeal still fails. The Commonwealth’s Offer, signed by DeLong and his attorney,

clearly lays out the hammer clause. At the plea colloquy, DeLong’s attorney

indicated she went over the terms of the plea agreement with him. DeLong

acknowledged that by pleading guilty he could be subjecting himself to greater or

-11- enhanced penalties if he were found guilty of certain future criminal offenses.5

After posting bond, DeLong signed a release form acknowledging penalties may

be imposed upon him for failure to appear.

We believe the circuit court employed adequate procedures to ensure

that DeLong’s plea was entered voluntarily and intelligently as required by Boykin.

During its colloquy with DeLong, the circuit court asked him if he understood the

potential penalties for failure to comply with release. DeLong replied he

understood. “A particular plea’s validity is determined from the totality of the

circumstances surrounding its making, not by reference to some magic incantation

recited at the time it was taken.” Kiser v. Commonwealth, 829 S.W.2d 432, 434

(Ky. App. 1992).

DeLong suggests that courts are required under Knox and

McClanahan to specifically discuss the implications of a hammer clause with a

defendant to satisfy Boykin. Neither case says this. Both cases were reversed

because the judges committed to the hammer clause prior to sentencing or failed to

consider anything but the hammer clause. In other words, the problem in those

cases was because the judge said too much, not too little.

The law does not require a specific discussion of the hammer clause

during the plea colloquy for it to be enforced. The sufficiency of the plea

5 DeLong committed a felony by cutting off the ankle monitor. KRS 519.070.

-12- colloquies in Knox and McClanahan was not the issue, and it is not an issue here.

Making sure a defendant has read the plea terms and acknowledges understanding

them is sufficient. See Commonwealth v. Crawford, 789 S.W.2d 779 (Ky. 1990).

Due process does not require a judge to read back every sentencing possibility to a

defendant. See Centers v. Commonwealth, 799 S.W.2d 51 (Ky. App. 1990).

CONCLUSION

The circuit court did not abuse its discretion in enhancing DeLong’s

sentence from six years to fourteen years. The court made an independent

determination of the appropriate sentence, which included the hammer clause

provision. The hammer clause resulted in a sentence within the range of permitted

sentences for the crimes committed. The circuit court complied with the

requirements of the sentencing statutes. The judgment of the Casey Circuit Court

is AFFIRMED.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Julia K. Pearson Danial Cameron Frankfort, Kentucky Attorney General of Kentucky

Kristin L. Conder Assistant Attorney General Frankfort, Kentucky

-13-