Troy Robert Calvert v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: March 17, 2022
• Docket: 2020 CA 000689
• Status: Unknown

Opinion

RENDERED: MARCH 18, 2022; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2020-CA-0689-MR

TROY ROBERT CALVERT APPELLANT

APPEAL FROM DAVIESS CIRCUIT COURT v. HONORABLE KEN M. HOWARD, SPECIAL JUDGE ACTION NO. 19-CR-00360

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

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BEFORE: COMBS, JONES, AND McNEILL, JUDGES.

McNEILL, JUDGE: Troy Calvert (“Calvert”) appeals the Daviess Circuit Court’s

judgment convicting him of five counts of retaliating against a participant in the

legal process and sentencing him to five years in the penitentiary. Specifically, he

appeals the circuit court’s denial of his motion to withdraw his guilty plea. Finding

no error, we affirm. BACKGROUND

On March 7, 2019, Calvert was indicted by a Daviess County Grand

Jury on six counts of retaliating against a participant in the legal process related to

a divorce case. On the day of trial, Calvert entered a guilty plea pursuant to a plea

deal. In exchange for his guilty plea, the Commonwealth agreed to dismiss one

count of retaliating against a participant in the legal process and recommended five

years on each remaining count to be served concurrently. The Commonwealth also

agreed to recommend shock probation after ninety days.

At the shock probation hearing, the Commonwealth stated that it

stood by its recommendation for shock probation, provided Calvert have no

contact with his wife or children. The circuit court clarified with the

Commonwealth that it was actually recommending probation and not just declining

to take a stance. The court then questioned Calvert at length about his ability to

comply with conditions of shock probation, specifically having no contact with the

victims. Following the hearing, the court took the motion under submission.

The next day, the Commonwealth filed a “pleading” with the circuit

court out of “candor,” containing recorded telephone conversations between

Calvert and his mother following the shock probation hearing. The

Commonwealth believed the recordings were relevant to Calvert’s “intentions of

abiding by the plea agreement.” At a hearing on January 17, 2020, the

-2- Commonwealth played several of the phone conversations for the court. The

phone calls reflected, generally, Calvert’s frustration at not being released on the

day of the shock probation hearing, as well as his intentions to contact his family

following his release.

Calvert objected at the hearing to the introduction of any new

evidence relevant to shock probation, arguing that the Commonwealth’s

introduction of prejudicial evidence is an implicit violation of their agreement to

recommend probation. Before listening to the calls, the court clarified with the

Commonwealth whether it was changing its position on recommending probation,

noting that if so, that was a separate legal matter that would need to be addressed.

The Commonwealth agreed, and the court reiterated that it understood the

Commonwealth to be recommending probation. At the end of the hearing, the

court stated its belief that the phone calls were “marginally, if at all probative” to

its decision. The court gave either party time to file a motion if they were

changing their position on shock probation.

On January 22, 2020, the court entered an order denying Calvert’s

motion for shock probation. It noted that since the Commonwealth agreed to

recommend shock probation as part of the plea agreement, it was required to give

“due consideration” to the agreement of the parties. The court further noted,

however, that shock probation was discretionary. Ultimately, the court denied

-3- shock probation based upon a finding that Calvert was likely to commit another

crime during the period of shock probation. The court specifically mentioned the

inconsistency between Calvert’s agreement to avoid contact with his wife and

children and his statements in his presentence investigation report and the recorded

jail phone calls with his mother upon which the indictment was based.

Importantly, the court did not cite the phone calls introduced at the January 17,

2020 hearing as a basis for his decision.

Subsequently, Calvert filed a pro se “Motion that the Commonwealth

Violated the Plea Agreement and to Vacate the Guilty Plea and Set a Date for

Trial,” arguing that the Commonwealth’s introduction of prejudicial information at

the January 17, 2020 hearing amounted to a non-favorable recommendation for

shock probation and a violation of the plea agreement. On April 30, 2020, the

circuit court denied the motion, noting that the Commonwealth “recommended the

Defendant be granted shock probation at both shock probation hearings on January

2 and 17, 2020 consistent with the plea agreement.” Significantly, it expressly

stated the evidence introduced at the January 17, 2020 hearing “did not form the

basis for the court’s ruling denying shock probation as reflected in the court’s

written order.” This appeal followed.

-4- STANDARD OF REVIEW

“[T]he decision whether to grant a motion to withdraw a guilty plea is

reviewed under the abuse of discretion standard.” Prater v. Commonwealth, 421

S.W.3d 380, 387 (Ky. 2014). Calvert argues on appeal that the Commonwealth

breached the plea agreement when it introduced prejudicial phone calls which

induced the circuit court to deny shock probation. Effectively, he argues, this

prejudicial information amounted to a non-recommendation for shock probation

from the Commonwealth.

ANALYSIS

“Courts have recognized that accepted plea bargains are binding

contracts between the government and defendants.” Elmore v. Commonwealth,

236 S.W.3d 623, 626 (Ky. App. 2007) (citation omitted). “Once a plea agreement

is accepted by a defendant, the agreement is binding upon the Commonwealth –

subject to approval by the trial court – and the accused is entitled to the benefit of

his bargain.” Id. (citation omitted). “Accordingly, plea agreements are interpreted

according to ordinary contract principles.” Id. (citation omitted).

Pursuant to the plea agreement, the Commonwealth agreed to

recommend shock probation after 90 days. The Commonwealth performed their

part of the agreement. The Commonwealth recommended probation at the shock

probation hearing and did not change that stance at the January 17, 2020 hearing.

-5- The court gave both parties the opportunity to change their positions on shock

probation before it ruled on the motion and neither party did so. The circuit court

noted in its order denying shock probation that it gave due consideration to the

Commonwealth’s recommendation pursuant to the plea agreement. Therefore,

Calvert received the benefit of his bargain.

While Calvert argues that the Commonwealth’s introduction of

prejudicial evidence after the shock probation hearing effectively amounted to a

non-recommendation, the circuit court declined to consider this evidence in its

denial of shock probation. Therefore, the circuit court did not err in denying

Calvert’s motion to withdraw his guilty plea.

CONCLUSION

For the foregoing reasons, the judgment of the Daviess Circuit Court

is affirmed.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

J. Ryan Chailland Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky

Jenny L. Sanders Assistant Attorney General Frankfort, Kentucky

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