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Hammond v. Commonwealth of Kentucky

Supreme Court of Kentucky

March 14, 2019

JOSHUA T. HAMMOND APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          ON APPEAL FROM FRANKLIN CIRCUIT COURT HONORABLE PHILLIP J. SHEPHERD, JUDGE NO. 12-CR-00099-002

          COUNSEL FOR APPELLANT: Mark H. Woloshin, Woloshin Law Office.

          COUNSEL FOR APPELLEE: Andy Be shear, Attorney General of Kentucky, Kenneth Wayne Riggs, Assistant Attorney General, Office of Criminal Appeals.

          OPINION

          HUGHES, JUSTICE

         In 2014, Joshua T. Hammond first appealed to this Court from a Franklin Circuit Court judgment sentencing him to twenty-five years for first-degree robbery, first-degree assault, reckless homicide, and tampering with evidence. Following the guilt phase of a jury trial, Hammond waived jury sentencing and entered a plea agreement with the Commonwealth as to sentencing, while reserving his right to appeal his conviction. The trial court sentenced Hammond to twenty-five years in accordance with the agreement. On Hammond's appeal from the judgment, this Court reversed the first-degree assault conviction and remanded the case to the trial court to enter a new judgment. Hammond v. Commonwealth, 504 S.W.3d 44 (Ky. 2016). On remand, the trial court again sentenced Hammond to twenty-five years consistent with this Court's opinion. Hammond now appeals from that second judgment, raising a new issue that could not have been included in the first appeal.

         FACTS

         To briefly reiterate the underlying facts, Hammond and two other men drove to Lexington to purchase drugs. After making the purchase, Hammond devised a plan to rob Charles Monroe, a Frankfort drug dealer. Hammond set up a meeting with Monroe and the four men drove to a local Wal-Mart. After Hammond and Monroe spent some time in the store, they returned to Hammond's truck but instead of going toward Monroe's home, Hammond drove in a different direction. When Monroe stated that they were going the wrong way* Hammond stopped the truck on the side of an interstate ramp and demanded that Monroe hand over his money and drugs. Hammond then began hitting Monroe in the head with a police baton. Monroe attempted to defend himself, but Hammond walked around to the passenger side while one of the other men held Monroe in a chokehold. Hammond continued striking Monroe on the head with the baton and searched for drugs and money, ultimately collecting $160 and some pills. Hammond pulled Monroe from the truck and left him on the side of the highway. Monroe died as a result of the assault, and the medical examiner stated the death was likely a result of an injury to Monroe's throat, caused by the chokehold.[1]

         In 2014, a Franklin Circuit Court jury found Hammond guilty of first-degree robbery, first-degree assault, reckless homicide and tampering with evidence. After the guilt phase, Hammond entered into a plea agreement with the Commonwealth to avoid the jury sentencing phase, and the trial court sentenced Hammond to twenty years for first-degree robbery and twenty years for first-degree assault (to be served concurrently), and five years each for reckless homicide and tampering with evidence (to be served concurrently) for a total sentence of twenty-five years.

         After entry of the judgment, Hammond appealed as a matter of right, and this Court rendered an opinion on December 15, 2016, affirming in part, reversing in part, and remanding. Hammond, 504 S.W.3d at 44. Hammond raised five issues on appeal, and this Court reversed and remanded the case solely as to the first-degree assault conviction.

         In that earlier appeal, Hammond challenged his first-degree assault conviction on three different grounds. He contended that the assault charge merged into the robbery charge, that the assault charge merged into the homicide charge, and that he should have received a directed verdict on the assault charge due to insufficient evidence that he inflicted a serious physical injury on Monroe. Hammond argued that the only physical injury to Monroe serious enough to support an assault charge was the throat injury, and this Court agreed. According to the medical testimony, the head wounds Hammond inflicted on Monroe with the baton were superficial and did not cause Monroe's death. Since the head injury could not serve as the basis for the assault charge, the only other viable injury was the throat injury. Justice Venters, writing for a unanimous Court, concluded that a "single injury which proves to be fatal cannot simultaneously serve as the injury in an underlying assault conviction and the fatal wound resulting in the death underlying the homicide conviction." Hammond, 504 S.W.3d at 52. Since Monroe ultimately died because of the throat injury, the injury should have only supported the reckless homicide charge and not the assault charge.

         This Court also agreed with Hammond that the first-degree assault charge merged into the reckless homicide charge. The Court determined that "either the trial court erred by submitting to the jury a first degree assault charge based upon evidence insufficient to establish that the head wound was a 'serious physical injury'; or, the jury was improperly permitted to find Appellant guilty of both first degree assault and reckless homicide based upon the serious injury to Monroe's throat." Id. at 53. Regardless of which specific error occurred, Hammond's first-degree assault conviction was reversed, and the case was remanded to the trial court for re-sentencing, removing the first-degree assault conviction but leaving the other convictions intact. This Court noted that since Hammond was sentenced to twenty years on both the assault and robbery charges, the reversal of the assault conviction did not affect Hammond's total twenty-five year sentence or parole eligibility. Id.

         On October 12, 2017, the trial court conducted a re-sentencing hearing where Hammond moved to withdraw the sentencing plea agreement and to have a jury impaneled for the penalty phase. The trial court denied his motion, stating that the Kentucky Supreme Court ruling contemplated re-sentencing only to clarify that the assault conviction was set aside, and reversal of the assault conviction did not affect Hammond's final sentence. Hammond was re-sentenced to twenty-five years, and now appeals from the trial court's second judgment.

         ANALYSIS

         Hammond argues that our holding in Hammond v. Commonwealth changed the terms of his plea agreement and because of this change, he should be permitted the right to proceed with a new jury empaneled for the penalty phase. Specifically, he argues that he now faces a new set of circumstances, i.e., he was originally facing a fifty-year sentence for all his charges while the assault charge was still ...


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