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Jones v. Commonwealth

Court of Appeals of Kentucky

September 8, 2017

DRAKARUS JONES APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

         APPEAL FROM HARDIN CIRCUIT COURT HONORABLE KELLY MARK EASTON, JUDGE ACTION NO. 15-CR-00565

          BRIEF FOR APPELLANT: Samuel N. Potter Assistant Public Advocate Frankfort, Kentucky

          BRIEF 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.

          OPINION

          KRAMER, CHIEF JUDGE:

         Drakarus 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         An information was filed against Jones accusing him of receiving a stolen firearm in violation of KRS[1] 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.

         The 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.

         On 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.

         Jones 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.

         Jones 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 community.

         II. ANALYSIS

         A. WAIVER OF ...


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