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Bains v. Commonwealth

Court of Appeals of Kentucky

December 21, 2018



          BRIEF FOR APPELLANT: Michael R. Mazzoli Louisville, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jeanne Anderson Special Assistant Attorney General Louisville, Kentucky



          JONES, JUDGE

         Sukhjits Bains appeals from an order of the Jefferson Circuit Court denying his motion to withdraw his guilty plea. After a careful review of the record and applicable law, we AFFIRM.

         I. Background

         In May of 2016, Bains was found slumped behind the steering wheel of his car in a Walmart parking lot. Police officers smashed Bains's driver-side window to allow emergency medical responders access to Bains. Upon doing so, police officers noticed a strong smell of marijuana emitting from Bains's vehicle. A search of Bains's vehicle uncovered marijuana, methamphetamine, and drug paraphernalia.

         A little over a month later, a police officer was dispatched to the residence of a woman Bains was dating. The officer arrived to find Bains outside of the residence, standing next to his vehicle. The officer, having been informed by dispatch that Bains was armed with a handgun, told Bains to raise his hands above his head. When Bains complied, he tossed a baggie of methamphetamine behind him. The officer then arrested Bains and interviewed the woman Bains was dating. The woman accused Bains of pointing two different handguns at her and threatening to kill her by giving her a dirty shot of heroin.

         Based on these incidents, Bains was charged with one count of first-degree wanton endangerment;[1] one count of tampering with physical evidence;[2]and two counts of possession of a controlled substance in the first degree.[3] On July 27, 2016, the Commonwealth and Bains reached an agreement for pretrial diversion. Under the terms of that agreement, Bains was to enter an Alford[4] plea to the wanton endangerment charge and plead guilty to the tampering with physical evidence and possession charges. In return, the Commonwealth agreed to recommend a three-year period of supervised pretrial diversion. So long as Bains complied with the conditions of pretrial diversion, the charges against him would be designated as dismissed-diverted. In the event that Bains failed to comply, the Commonwealth agreed to recommend a one-year sentence of imprisonment. The pretrial diversion agreement expressly stated that, during the diversion period, the circuit court was permitted to "(a) revoke or modify any condition; (b) change the period of supervision; or (c) discharge [Bains] from supervision." R. 22.

         Following a thorough plea colloquy, Bains pleaded guilty to the charges against him on December 8, 2016, and an order of judgment on the guilty plea was entered shortly thereafter. The circuit court held a sentencing hearing on January 19, 2017. During that hearing the circuit court discussed at length its concerns regarding Bains's charge of wanton endangerment. The circuit court believed that, because of Bains's criminal history and the facts underlying the wanton endangerment charge, the Commonwealth's offer was too lenient. Instead of accepting the Commonwealth's recommendation, the circuit court indicated that it would sentence Bains to three years' imprisonment, diverted for a period of five years. As a condition of diversion, the circuit court stated that Bains would be required to spend thirty days in the county jail. The circuit court informed Bains that if he did not wish to accept this agreement, the case could start over fresh in circuit court. Bains was given two weeks to consider his options.

         On January 24, 2017, the circuit court entered an order setting out Bains's options going forward. That order indicated that Bains could either: (1) go forward with the plea agreement as written with the expectation that the circuit court would impose a one-year sentence of imprisonment and, in its discretion, require Bains to serve "a correspondingly appropriate amount of time in jail as a condition of his pretrial diversion;" or (2) accept the alternative sentence of three years' imprisonment proposed by the circuit court, in which case Bains would be required to serve thirty days in the county jail as a condition of his pretrial diversion. R. 44. Despite the fact that Bains was told in court that he could withdraw his guilty plea, the circuit court's order did not mention Bains's ability to do so.

         The sentencing hearing reconvened on February 2, 2016, and Bains accepted the circuit court's first option: a one-year sentence diverted for three years, on the condition that Bains "serve a correspondingly appropriate amount of time in jail." After Bains had informed the circuit court that he wished to accept the first option, Bains mentioned that he did not know that defending himself at trial had been taken off the table as an option. He said he ultimately accepted diversion so that he could put the issue behind him. The circuit court then accepted Bains's pretrial diversion agreement and ordered Bains to serve ninety days in jail, with extended hours work release.

         Bains reported to the jail on February 6, 2017. On February 15, 2017, Bains failed to return to the corrections facility following work release. The circuit court issued a bench warrant for Bains when it learned that Bains had been absent without leave. Police officers tracked down Bains at a private residence, where they observed a rental car registered in Bains's name in the driveway. Bains was arrested when he came out of the residence and got into the rental car. Upon arresting Bains, the officers conducted a pat-down search and discovered what they believed was heroin in his pants pocket. A search incident to arrest of the rental car revealed a handgun, which was registered in Bains's name. The ...

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