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Thomas v. Commonwealth

Court of Appeals of Kentucky

April 21, 2017

LAYW THOMAS APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

         APPEAL FROM CHRISTIAN CIRCUIT COURT HONORABLE JOHN L. ATKINS, JUDGE ACTION NO. 06-CR-00110 & 06-CR-00142

          BRIEF FOR APPELLANT: Layw Thomas, Pro se LaGrange, Kentucky.

          BRIEF 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

          THOMPSON, JUDGE.

         Layw 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.

         Thomas 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.

         Pursuant 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.

         On 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.

         Thomas 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.

         Thomas 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.

         On 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 follows:

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.

         On 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 indigency.

         After 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.

         On 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 in."

         Thomas 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 provide:
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

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