FROM CHRISTIAN CIRCUIT COURT HONORABLE JOHN L. ATKINS, JUDGE
ACTION NO. 06-CR-00110 & 06-CR-00142
FOR APPELLANT: Layw Thomas, Pro se LaGrange, Kentucky.
FOR APPELLEE: Jack Conway Attorney General of Kentucky Todd
D. Ferguson Assistant Attorney General Frankfort, Kentucky.
BEFORE: J. LAMBERT, TAYLOR AND THOMPSON, JUDGES.
OPINION REVERSING AND REMANDING
Thomas appeals from an order of the Christian Circuit Court
denying his motion filed pursuant to Kentucky Rules of Civil
Procedure (CR) 60.02 alleging that his sentence was illegally
imposed pursuant to a hammer clause and, therefore,
unauthorized under Kentucky law. We conclude that relief is
available to Thomas under CR 60.02 because of the
extraordinary circumstances presented and he is entitled to
be sentenced as provided for in Kentucky's statutory law
and rules of criminal procedure.
was born on May 2, 1988. In 2006, Thomas, then a juvenile,
was charged with various crimes in two separate indictments.
In 2006-CR-00110, Thomas was indicted for the murder of
Ronnie Franks on January 17, 2006. In 2006-CR-00142, Thomas
was indicted for robbery in the first degree, assault in the
first degree, assault in the second degree and wanton
endangerment in the first degree for crimes against victims
other than Franks committed on January 5, 2006.
to a plea agreement, on May 3, 2007, Thomas entered a guilty
plea to first-degree robbery, first-degree assault,
second-degree assault and first-degree wanton endangerment in
exchange for a recommended sentence of twelve years. As part
of the plea agreement, Thomas was released pending sentencing
in his mother's custody and agreed that if he failed to
appear at sentencing, the Commonwealth would move the trial
court to impose the maximum sentence.
October 3, 2007, again pursuant to a plea agreement, Thomas
pled guilty to murder in 2006-CR-00110, in exchange for a
recommended sentence of twenty years to run concurrently with
his sentence in 2006-CR-00142. As in the earlier plea
agreement, Thomas agreed that if he failed to appear at
sentencing, the Commonwealth would move the trial court to
impose the maximum sentence.
failed to appear at sentencing on December 6, 2007. His
counsel asked for leniency and explained that Thomas removed
his ankle bracelet and fled only after his mother's
landlord threatened eviction if Thomas did not leave the
residence. An arrest warrant was issued.
appeared for sentencing on April 2, 2008. At that time, his
counsel again made a plea for leniency and Thomas's
mother testified about the threatened eviction that caused
Thomas to leave the residence. The trial court found no
reason to grant leniency and reiterated the terms of the plea
agreement that Thomas would be sentenced to the maximum
sentence if he failed to appear for sentencing. In accordance
with that agreement, the trial court stated Thomas would be
sentenced to the maximum sentences on each count. The trial
court made no reference to the presentencing report or
circumstances of Thomas's crimes but only referenced the
plea agreement and Thomas's violation of that agreement.
In its docket order the court stated:
[Defendant] having failed to appear as ordered for previous
sentencing hearing in violation of the plea agreement, he is
sentenced to the maximum on his sentences. The sentences
shall run consecutively to the extent allowed by statute.
April 18, 2008, a combined judgment and sentence of
conviction was entered. Instead of the combined sentence of
twenty-years' imprisonment, Thomas was sentenced to life
for the murder conviction to run consecutive with the charges
in 06-CR-00142. For robbery first-degree, he was sentenced to
twenty years; assault first-degree, twenty years; wanton
endangerment, first degree, five years; and assault
second-degree, five years, to run consecutive to the life
sentence. In total, he was sentenced to a total of life
imprisonment plus fifty years. In accordance with its
sentencing ruling, the sentencing judgment repeated the
reasoning for imposing the maximum sentence in bold as
DEFENDANT HAVING FAILED TO APPEAR AS ORDERED FOR PREVIOUS
SENTENCING HEARING IN VIOLATION OF THE PLEA AGREEMENT, HE IS
SENTENCED TO THE MAXIMUM ON HIS SENTENCES. THE SENTENCES
SHALL RUN CONSECUTIVELY TO THE EXTENT ALLOWED BY STATUTE.
February 22, 2011, Thomas, pro se, filed a combined
CR 60.02 and Kentucky Rules of Criminal Procedure (RCr) 11.42
motion arguing his counsel was ineffective by allowing him to
enter into a plea agreement containing a hammer clause and
that the trial court illegally committed to enforcing a
hammer clause in imposing the maximum sentences for his
crimes. He filed a motion to proceed in forma
pauperis and requested the appointment of counsel and an
evidentiary hearing. He attached his six-month inmate account
statement showing a balance of $360 and an affidavit of
three months passed, Thomas's motion had not been ruled
upon and he had not been appointed counsel. He filed a
petition for writ of mandamus in this Court. This Court
issued an administrative order granting in part and denying
in part his motion to proceed in forma pauperis.
Thomas was directed to pay an $18 filing fee within sixty
days. The remainder of the required fee was waived. After
Thomas failed to pay the partial fee, his writ was dismissed.
August 11, 2011, without ruling on Thomas's request for
appointment of counsel, the trial court denied Thomas's
motion filed pursuant to RCr 11.42 and CR 60.02. The court
noted that Thomas "was made aware of the consequences of
not appearing at his sentencing hearing." The trial
court concluded by stating: "Mr. Thomas has no one to
blame but himself for the predicament he finds himself
tendered a timely notice of appeal. However, on August 29,
2011, the circuit clerk returned the notice of appeal to
Thomas and, in an attached letter from the clerk, Thomas was
informed as follows:
Please find enclosed, all documents received by this
office in regards to an appeal. For each case, you must
Motion to proceed In forma Pauperis
Order to proceed In forma Pauperis
Affidavit of Indigency
Notice of Appeal
Designation of Record
Copy of Order being Appealed