FROM CASEY CIRCUIT COURT HONORABLE JUDY VANCE MURPHY, JUDGE
ACTION NO. 10-CR-00077
FOR APPELLANT: Travis Bewley Steven J. Buck Frankfort,
FOR APPELLEE: Andy Beshear Attorney General of Kentucky,
Joseph A. Beckett Assistant Attorney General Frankfort,
BEFORE: GOODWINE, LAMBERT, AND K. THOMPSON, JUDGES.
Michael Milam appeals from the Casey Circuit Court's
judgment sentencing him to five years' imprisonment
following the court's decision to void his pretrial
diversion. The Commonwealth concedes error in how the trial
court voided Milam's diversion, and we agree with the
Commonwealth's assessment of the trial court's error.
Therefore, we vacate the judgment and remand with
instructions to the trial court to dismiss the underlying
charge as diverted.
August 2, 2010, the Casey County grand jury indicted Milam
for second-degree assault based on an incident in which Milam
intentionally struck his victim with an automobile. Milam
entered a guilty plea to an amended charge of first-degree
wanton endangerment. In accord with the Commonwealth's
recommendation, the trial court thereafter granted Milam an
unsupervised pretrial diversion period of five years on an
agreed sentence of five years' imprisonment. As part of
the conditions for diversion, the trial court required Milam
to refrain from further offenses, specifically stating he
must "have no violation of the Penal Code or the
Controlled Substances Act." The trial court entered its
pretrial diversion order on February 27, 2012.
Milam incurred multiple criminal charges over the next few
years, including convictions in Meade District Court No.
13-M-00240 and Russell District Court No. 13-M-00159. Almost
exactly five years after the diversion order, on February 24,
2017, the Commonwealth filed a motion to extend Milam's
diversion period. The Commonwealth pointed to the
aforementioned convictions and asserted Milam had also
incurred a pending charge in Daviess District Court No.
17-M-00119. The Commonwealth's certificate of service
indicated a copy of the motion would be either hand-delivered
to Milam or sent via first-class mail. Milam asserted he
never received notice prior to the hearing.
days later, on February 27, 2017, the trial court conducted a
hearing on the Commonwealth's motion to extend
Milam's diversion. Neither Milam nor anyone acting as his
counsel appeared. The trial court heard the
Commonwealth's arguments and extended Milam's
diversion for two additional years in lieu of revocation. The
trial court also ordered Milam's diversion would be
thenceforth subject to supervision by probation and parole
officers. Several days later, when a probation and parole
officer telephoned Milam to advise him his diversion period
had been extended, Milam stated he did not agree to his
diversion being extended. Milam then contacted his counsel,
who advised him to cooperate with the officers. For several
months, Milam complied with the new conditions, but he began
violating his reporting and drug testing requirements in
February 2018. He eventually admitted to using marijuana and
August 2, 2018, the Commonwealth moved to void the pretrial
diversion agreement. At the hearing on the motion, Milam
argued diversion had been improperly extended in his case. He
pointed out that he could not have received notice of the
Commonwealth's motion with sufficient time to appear with
counsel and defend himself. He also argued the time period
for diversion had expired by operation of law. The
Commonwealth argued the motion to extend was proper because
it was filed before the diversion period ended. The trial
court agreed with the Commonwealth, stating it was
"comfortable" with its order extending diversion.
The trial court also asserted its order extending diversion
was to Milam's benefit. The trial court subsequently
voided Milam's pretrial diversion and imposed a five-year
sentence on the underlying charge. This appeal followed.
preliminary matter, we must first consider how Milam filed
his notice of appeal on December 18, 2018, based specifically
on the trial court's oral sentencing as noted on a docket
sheet on November 26, 2018. A notice of appeal must be based
on a written judgment and not an oral sentencing.
"Circuit courts speak only through written orders
entered upon the official record." Oakley v.
Oakley, 391 S.W.3d 377, 378 (Ky. App. 2012) (citation
and internal quotation marks omitted). The trial court's
docket sheet notes could perhaps suffice for a written
judgment, but the court then followed this docket sheet
notation with a formal written judgment and sentence entered
on December 18, 2018. This formal judgment is not reflected
in Milam's notice of appeal, which presents a procedural
irregularity. See CR 73.03(1) (The appellant is
required to "identify the judgment, order or part
thereof appealed from.").
speaking, Milam should have amended his notice of appeal to
reflect the formal written order of December 18, 2018.
Oakley, 391 S.W.3d at 378. However, in Wright v.
Ecolab, Inc., 461 S.W.3d 753 (Ky. 2015), the Kentucky
Supreme Court held the "relation forward" doctrine
allows "a premature notice of appeal from [a] bench
ruling to relate forward to judgment and serve as an
effective notice of appeal from the final judgment."
Id. at 759 (emphasis omitted) (quoting FirsTier
Mortg. v. Investors Mortg. Ins. Co., 498 U.S. 269, 275,
111 S.Ct. 648, 112 L.Ed.2d 743 (1991)). Therefore, pursuant
to Wright, we will consider the merits of the matter
sub judice. Nonetheless, counsel should take note of
the applicable procedural rules for the sake of future
court may void pretrial diversion agreements pursuant to KRS
If the defendant fails to complete the provisions of the
pretrial diversion agreement within the time specified, or is
not making satisfactory progress toward the completion of the
provisions of the agreement, the Division of Probation and
Parole, the victim, or a peace officer may inform the
attorney for the Commonwealth of the alleged violation or
noncompliance, and the attorney for the Commonwealth may
apply to the court for a hearing to determine whether or not
the pretrial diversion ...