Thomas Raider v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: October 5, 2023
• Docket: 2022 CA 001070
• Status: Unknown

Opinion

RENDERED: OCTOBER 6, 2023; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2022-CA-1070-MR

THOMAS RAIDER APPELLANT

APPEAL FROM ESTILL CIRCUIT COURT v. HONORABLE MICHAEL DEAN, JUDGE ACTION NO. 16-CR-00096

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION REVERSING AND REMANDING

** ** ** ** **

BEFORE: EASTON, JONES, AND LAMBERT, JUDGES.

JONES, JUDGE: Thomas Raider appeals an order of the Estill Circuit Court

revoking his pretrial diversion and sentencing him to a term of imprisonment in

accordance with his guilty plea. Upon careful review of the arguments, record, and

applicable legal authority, we reverse and remand. I. FACTS AND PROCEDURAL BACKGROUND

On September 23, 2016, Raider was indicted on charges of first-

degree trafficking in a controlled substance, first offense (less than two grams of

methamphetamine); trafficking in marijuana, first offense (less than eight ounces);

first-degree possession of a controlled substance, first offense (methamphetamine);

and possession of drug paraphernalia. On May 4, 2017, Raider accepted a guilty

plea in return for a dismissal of the possession of a controlled substance charge and

the Commonwealth’s recommendation that Raider participate in pretrial diversion

for a period of five years, including completion of drug court. Pursuant to the

parties’ agreement, on June 23, 2017, the trial court sentenced Raider to five years’

pretrial diversion to be run concurrently with a three-year diversionary period

stemming from a later conviction in the same court.

On January 4, 2018, Raider was terminated from the drug court

program for absconding. However, for reasons that are not clear from the record,

the Commonwealth did not move to revoke Raider’s diversion at that time. On

May 3, 2022, Raider appeared before the trial court to face charges in a new

criminal matter pending against him. During that hearing, the trial court brought

up revocation of Raider’s earlier pretrial trial diversion taking judicial notice that

Raider had violated the terms of his earlier diversion due to his 2018 termination

from the drug court program. The trial court remarked this “appears to be the

-2- grounds” for revocation and then stated this “just leaves the matter of sentencing.”

Raider’s trial counsel objected to the revocation of the three-year diversion on the

grounds the diversionary period expired, and further objected that the prosecution

had never filed a motion to revoke. The trial court overruled the objection stating a

motion was “not required.”

Based on its conclusion that Raider’s diversion period should be

revoked, the trial court scheduled a sentencing hearing for June 7, 2022. Raider

renewed his prior objections to revocation at the June 7th hearing. Once again, the

trial court took the objections under submission and indicated it would revisit the

matter at a subsequent court appearance on June 22, 2022. At the June 22nd

hearing, Raider renewed his prior objections and additionally argued that the five-

year period had now run without any formal motion to revoke having been filed by

the Commonwealth.

On August 2, 2022, a month after the diversionary period was set to

expire, the trial court entered a written order revoking Raider’s five-year diversion

and ruling that revocation first occurred on May 3, 2022, before the expiration of

the diversionary period. The trial court ordered Raider to serve the five-year

sentence in accordance with his plea agreement and granted credit for time already

served. This appeal followed.

-3- II. STANDARD OF REVIEW

“[T]he standard for reviewing a trial court’s decision to void a

diversion agreement is the same abuse of discretion standard which is used to

review probation revocation decisions.” McVey v. Commonwealth, 467 S.W.3d

259, 262 (Ky. App. 2015). “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).

III. ANALYSIS

Raider’s sole argument on appeal is that the trial court lacked

jurisdiction to revoke his pretrial diversion where the Commonwealth had not

formally moved to revoke prior to expiration of the diversionary period.

Revocation of diversion is determined by the same criteria as probation revocation,

and the defendant is entitled to the same rights as if probation revocation was

sought. See KRS1 533.256(1); Helms v. Commonwealth, 475 S.W.3d 637, 641

(Ky. App. 2015). The Commonwealth must prove the defendant committed a

violation by a preponderance of the evidence. Helms, 475 S.W.3d at 641.

Raider cites KRS 533.256(1) and Tucker v. Commonwealth, 295

S.W.3d 455 (Ky. App. 2009), in support of his argument. This issue appears to be

a matter of first impression, and there is a relative lack of case law addressing the

1 Kentucky Revised Statutes.

-4- interpretation and application of KRS 533.256(1). Therefore, we look to the

statute’s explicit language. Jefferson Cnty. Bd. of Educ. v. Fell, 391 S.W.3d 713,

719 (Ky. 2012).

KRS 533.256(1) states:

If the defendant fails to complete the provisions of the pretrial diversion agreement within the time specified, or is not making satisfactory progress toward the completion of the provisions of the agreement, the Division of Probation and Parole, the victim, or a peace officer may inform the attorney for the Commonwealth of the alleged violation or noncompliance, and the attorney for the Commonwealth may apply to the court for a hearing to determine whether or not the pretrial diversion agreement should be voided and the court should proceed on the defendant’s plea of guilty in accordance with the law.

(Emphasis added.) In the face of a reported violation, the statute clearly provides

that the prosecution “may apply” for a hearing to void the diversion agreement.

While the statute does not specifically use the word “motion” or define “apply,”

BLACK’S LAW DICTIONARY (8th ed. 2004) defines “apply” as “[t]o make a formal

request or motion.” (Emphasis added.)

The remaining subsections further state:

(2) In making a determination as to whether or not a pretrial diversion agreement should be voided, the court shall use the same criteria as for the revocation of probation, and the defendant shall have the same rights as he or she would if probation revocation was sought.

-5- (3) Making application for a pretrial diversion agreement tolls any statute of limitations relative to the criminal offenses for which the application is made for the period until the application is granted or denied. Approval of the application for pretrial diversion by the court tolls any statute of limitations relative to criminal offenses diverted for the period of the diversion agreement.

(4) If the court voids the pretrial diversion agreement, the court shall notify the applicable prosecutor in writing that the pretrial diversion agreement has been voided and the reasons for the action. The prosecutor shall decide whether or not to proceed on the plea of guilty in accordance with the law.

KRS 533.256(2)-(4). When examining the statute, we see no contradictions or

ambiguities among its provisions.

However, the Commonwealth asserts that nothing in KRS 533.256

precludes the trial court from revoking diversion on a “sua sponte” basis.

(Commonwealth’s Brief at 6.) The Commonwealth additionally contends that if

KRS 533.256(1) only permitted the prosecution to file a motion to revoke, the

statute would state “the attorney for the Commonwealth must apply to the court for

a hearing to determine whether or not the pretrial diversion agreement should be

voided . . . .” (Commonwealth’s Brief at 6.) The Commonwealth does not

otherwise offer an explanation as to what other meaning was intended by this

provision. Thus, in light of the Commonwealth’s position and to the extent any

-6- ambiguity can be read from the statute, we apply relevant principles of statutory

construction.

To begin, adoption of the Commonwealth’s position leads to an

incompatible result between subsections (1) and (4) within KRS 533.256. See

Ballinger v. Commonwealth, 459 S.W.3d 349, 354 (Ky. 2015) (“We presume, of

course, that the General Assembly did not intend an absurd or an unconstitutional

statute or one at odds with other statutory provisions.”). KRS 533.256(4) states

that upon notification of revocation, “The prosecutor shall decide whether or not to

proceed on the plea of guilty in accordance with the law.” (Emphasis added.) It

would certainly lead to an inconsistency if the statute was intended to permit a trial

court with authority to revoke on its own motion yet vest all discretion with the

prosecutor whether to enforce the terms of the plea agreement. Additionally, the

Commonwealth’s argument effectively rewrites and inserts language into the

statute that was simply not intended. See Fox v. Grayson, 317 S.W.3d 1, 8 (Ky.

2010) (“It is well settled law that a court may not add language to the written law

to achieve a desired result.”).

In discerning the intent of the law, we believe it is most illuminating

that the legislature omitted any mention of the trial courts within KRS 533.256(1).

“It is a familiar and general rule of statutory construction that the mention of one

thing implies the exclusion of another, as is expressed in the maxim, “Expressio

-7- unius est exclusio alterius[.]” Jefferson County v. Gray, 198 Ky. 600, 249 S.W.

771, 772 (1923). Often shortened to expressio unius, it is a canon of statutory

construction to be used “‘only as an aid in arriving at [legislative] intention, and

not to defeat it.’” Fox, 317 S.W.3d at 9 (quoting Gray, 249 S.W. at 772).

“Because the expressio unius maxim is only a rule of construction, and not

substantive law, we must use it only when . . . that which is expressed is so set over

by way of strong contrast to that which is omitted that the contrast enforces the

affirmative inference that that which is omitted must be intended to have opposite

and contrary treatment.” Id. (internal quotation marks and citations omitted).

When closely examining the language of all the provisions within

KRS 533.256, the roles of the trial court and the prosecution are clearly and

distinctly defined. The omission of any language within KRS 533.256(1)

signifying that the trial court may revoke on its own motion cannot simply be

ignored. See Palmer v. Commonwealth, 3 S.W.3d 763, 764-65 (Ky. App. 1999)

(citations omitted) (emphasis added) (“[I]t has been held that where the legislation

includes particular language in one section of a statute, but omits it in another

section of the same Act, it is generally presumed that the legislature acted

intentionally and purposefully in the disparate inclusion or exclusion.”).

-8- In Palmer, this Court held that the three-year time requirement for

filing a post-conviction petition pursuant to RCr2 11.42 began upon the entry of a

conclusive judgment of the case such as a final appellate decision or the judgment

of the trial court if not challenged on appeal as opposed to only the final judgment

of the trial court if it was appealed. 3 S.W.3d at 764. It was reasoned that the

usage of the term “trial court” in subsections (7) and (8) of RCr 11.42 and its

omission in RCr 11.42(10), which set forth the three-year filing deadline, was

dispositive. Id. It was further held that if the rule intended the time requirement to

initiate only upon entry of the trial court’s judgment, the “[Kentucky] Supreme

Court could have used the specific language” which was “used in sections (7) and

(8).” Id. at 765. Similarly in this matter, if the legislature intended to permit a trial

court to revoke diversion on its own motion, it could have inserted specific

language within KRS 533.256(1).

Lastly, the Commonwealth argues that Tucker, 295 S.W.3d 455, cited

and relied upon by Raider, does not specifically hold that a motion from the

prosecution is required before revocation is permissible, and the facts are

distinguishable from the underlying facts of this appeal. In Tucker, this Court

reversed the revocation of a diversion due to the prosecutor’s failure to file a

motion to revoke subsequent to expiration of the diversionary period. In contrast,

2 Kentucky Rules of Criminal Procedure.

-9- the Commonwealth argues that the trial court revoked Raider’s diversion on its

own motion on May 3, 2022, prior to the expiration of Raider’s five-year

diversionary period.

The Commonwealth’s argument is well taken, but when carefully

examining Tucker, 295 S.W.3d 455, along with a related decision cited by the

Commonwealth in Ballard v. Commonwealth, 320 S.W.3d 69 (Ky. 2010), it is an

implicit understanding within these decisions that a motion by the prosecution is a

necessary predicate before revocation may be imposed. In Tucker, the majority

stated:

[W]e believe this case can be resolved merely by noting that the Commonwealth had the means readily at hand to seek to have [Appellant’s] pretrial diversion revoked if it believed his failure to pay child support, or his assault conviction, or any other alleged violation of his pretrial diversion conditions justified such action. Those means are found in KRS 533.256(1). We need not concern ourselves with why the Commonwealth failed to act to have [Appellant’s] pretrial diversion revoked before it expired. The fact is that it did not do so.

295 S.W.3d at 457 (emphasis added).

In Ballard, 320 S.W.3d at 74, the Kentucky Supreme Court wrote:

[T]he trial court has authority to void the diversion agreement, even after the period of diversion has ended, so long as the Commonwealth has entered a timely motion to void prior to expiration of the diversion period. See RCr 8.04.[3] See also Tucker v. Commonwealth, 295

3 RCr 8.04(5) states:

-10- S.W.3d 455, 458 (Ky. App. 2009) (motion by Commonwealth to void diversion agreement is “required to be made before expiration of the pretrial diversion period”). That is precisely what occurred in this case.

(Emphasis added.)

Both Tucker and Ballard make specific mention of a timely motion

from the Commonwealth as a prerequisite to a trial court’s authority to revoke.

Based on these precedents, along with the plain language of KRS 533.256, we hold

that it is a mandatory requirement that a timely motion to revoke pretrial diversion

must be made by the prosecution before a trial court’s authority to revoke may be

invoked.

Turning to the present matter, it is undisputed that the Commonwealth

never filed such a motion. The record demonstrates that, on May 3, 2022, the trial

court raised the matter of revocation, and based on the trial court’s own words,

took “judicial notice” of Raider’s expulsion from the drug court program as a

Termination of the Agreement; Automatic Dismissal. Upon the expiration of the period of suspension of prosecution and upon the completion of the agreement and where there is no motion by the Attorney for the Commonwealth to terminate the agreement upon any grounds permitted under this Rule, the indictment, complaint or charges which are the subject matter of the agreement shall be dismissed with prejudice. In the event that there may be a pending motion by the Commonwealth to terminate the agreement, if the Court shall rule that the motion be denied, then upon entry of said order the indictment, complaint or charges shall be dismissed with prejudice.

-11- violation of diversion. The record is devoid of any motion to revoke from the

prosecution before the trial court’s oral revocation on May 3, 2022, or the entry of

the formal written order on August 2, 2022. The record also clearly demonstrates

that, on June 7, 2022, the prosecution conceded it never filed a motion to revoke

because it did not receive notification Raider was terminated from the drug court

program.

IV. CONCLUSION

For the foregoing reasons, we reverse the judgment and sentence of

the Estill Circuit Court and remand with instructions that the charges in the

underlying action be dismissed with prejudice and this case be listed as Dismissed-

Diverted” in accordance with KRS 533.258(1).

LAMBERT, JUDGE, CONCURS.

EASTON, JUDGE, CONCURS AND FILES SEPARATE OPINION.

EASTON, JUDGE, CONCURRING: Two precedents compel the result in this

case. Ballard v. Commonwealth, 320 S.W.3d 69 (Ky. 2010), and Tucker v.

Commonwealth, 295 S.W.3d 455 (Ky. App. 2009). According to these precedents,

the language of KRS 533.256(1) requires that a motion to void a diversion must be

filed by the Commonwealth before the diversion term expires in all cases. Yet the

law also states a diverted case is to be dismissed only upon successful completion

of the terms of the diversion. KRS 533.258(1).

-12- One who, like Raider in this case, absconds for years after abandoning

treatment provided during a diversion does not successfully complete diversion.

The question of whether a motion by the Commonwealth should be required to

void a diversion should be reexamined, especially when, as in this case, the court

proceedings about the diversion violations began before expiration of the term.

This may require legislative action to clarify whether KRS 533.256(1) intended the

absolute necessity of a motion to void a diversion despite the condition of

successful completion required by KRS 533.258(1). The legislature may well

decide to leave it be so that prosecutors alone can exercise their discretion on

whether to proceed with voiding a diversion.

In the meantime, this case teaches the need for notice and action.

When the Commonwealth learns of violations, it may decide to let the diversion

case go, because of new charges or other considerations. But, if voiding a

diversion is to happen, the Commonwealth must file a motion before the diversion

expires. For those cases in which a warrant has been issued in the diversion case,

which does not require a motion by the Commonwealth but may rather be initiated

by the trial court, the Commonwealth’s motion must be filed before the diversion

expires, including any allowed extension once the warrant is served.

Commonwealth v. Tapp, 497 S.W.3d 239 (Ky. 2016).

-13- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Karen Shuff Maurer Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky

Stephanie L. McKeehan Assistant Attorney General Frankfort, Kentucky

-14-