Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Milam v. Commonwealth

Court of Appeals of Kentucky

January 3, 2020



          BRIEF FOR APPELLANT: Travis Bewley Steven J. Buck Frankfort, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky, Joseph A. Beckett Assistant Attorney General Frankfort, Kentucky



          LAMBERT, JUDGE:

         Harold 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.

         On August 2, 2010, the Casey County grand jury indicted Milam for second-degree assault[1] 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.[2] 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.

         Unfortunately, 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.

         Three 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 methamphetamine.

         On 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.

         As a 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[3] 73.03(1) (The appellant is required to "identify the judgment, order or part thereof appealed from.").

         Strictly 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 appeals.

         A trial court may void pretrial diversion agreements pursuant to KRS 533.256(1):

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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.