FROM HARDIN CIRCUIT COURT HONORABLE KELLY MARK EASTON, JUDGE
ACTION NO. 15-CR-00565
FOR APPELLANT: Samuel N. Potter Assistant Public Advocate
FOR APPELLEE: Andy Beshear Attorney General of Kentucky
Frankfort, Kentucky J. Todd Henning Assistant Attorney
General Frankfort, Kentucky
BEFORE: KRAMER, CHIEF JUDGE; ACREE AND JONES, JUDGES.
KRAMER, CHIEF JUDGE:
Jones appeals the Hardin Circuit Court's order voiding
his pretrial diversion. After a careful review of the record,
we reverse and remand for a new pretrial diversion revocation
hearing because the circuit court committed palpable error in
denying Jones his due process rights during the hearing.
FACTUAL AND PROCEDURAL BACKGROUND
information was filed against Jones accusing him of receiving
a stolen firearm in violation of KRS 514.110. The Commonwealth
provided an offer in exchange for Jones's guilty plea.
The offer stated that if Jones entered a guilty plea, the
Commonwealth would recommend a sentence of three years on the
charge and pretrial diversion for five years. Jones moved to
enter a guilty plea in accord with the Commonwealth's
offer. He also moved for pretrial diversion.
circuit court accepted Jones's guilty plea and granted
Jones's motion for pretrial diversion. The pretrial
diversion was ordered to last five years, and the conditions
of diversion included requirements for Jones to "obey
all rules and regulations imposed by Probation [and]
Parole" and to "not commit another offense during
the period of the Pretrial Diversion." The order
granting pretrial diversion was entered on November 13, 2015.
January 29, 2016, a Probation and Parole Officer finalized a
Violation of Supervision Report regarding Jones. The report
stated that Jones had failed to report on his January 13,
2016 report date. It further alleged that almost two weeks
later, the Probation and Parole Officer left a voicemail for
Jones to report on January 27, 2016, but Jones failed to do
so. A home visit was conducted the following day to
Jones's last known residence, but nobody was home, so a
door tag was left instructing Jones to report to Probation
and Parole on January 29, 2016 at 8:00 am, which Jones failed
to do. The Commonwealth then filed a motion to void pretrial
diversion based upon the violations specified in the
Violation of Supervision Report.
was ultimately found in Oregon. He was brought back to
Kentucky, where a pretrial diversion revocation hearing was
held. Jones waived his right to counsel at the hearing.
Following the hearing, the circuit court entered an order
finding that Jones had "knowingly, voluntarily and
intelligently waived the right to counsel and formal hearing
as stated on the record." The court also found that
Jones "failed to abide by the terms and conditions of
pretrial diversion by committing the following violations:
leaving [the] state without permission - absconding."
The court stated in its order that the court had
"considered the requirements of KRS 439.3106 and
[found]: such violation(s) constitute a significant risk to
prior victims of the Defendant or the community at large
(including the Defendant) and [Jones] cannot be appropriately
managed in the community." The circuit court further
concluded that Jones's "history of failures to
appear with [his] knowing decision to leave [the] state
[without] permission - with gun charges as underlying charges
- [leads to the conclusion that he is a] danger to [the]
public [with] non-compliance." Consequently, the court
voided his pretrial diversion and scheduled a sentencing
hearing. The court subsequently entered its judgment and
sentenced Jones to three years of imprisonment.
now appeals, contending that: (a) he was not sufficiently
advised of his rights in order to make a knowing,
intelligent, and voluntary waiver of his right to counsel at
the hearing where his pretrial diversion was voided; and (b)
the circuit court's findings do not support its
conclusion that Jones was a risk to the victims or to the
WAIVER OF ...