Eric Straub v. Commonwealth of Kentucky ( 2022 )

RENDERED: NOVEMBER 18, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0056-MR
ERIC STRAUB APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
v. HONORABLE DANIEL J. ZALLA, JUDGE
ACTION NO. 20-CR-00342
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
VACATING AND REMANDING
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BEFORE: DIXON, GOODWINE, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Eric Straub appeals from his conviction of possession
of a firearm by a convicted felon and for violating a domestic violence order.
Appellant argues on appeal that he was not a felon when charged with possessing
the firearm and should not have been convicted of that charge. We believe that
Appellant has raised enough questions about the validity of his conviction that
additional proceedings are required; therefore, we vacate Appellant’s conviction
and remand.
FACTS AND PROCEDURAL HISTORY
On May 26, 2015, Appellant pleaded guilty to first-degree possession
of a controlled substance,1 a Class D felony, and entered into a felony diversion
program pursuant to KRS 533.250. The diversion program was to last three years.
On July 8, 2020, Appellant was arrested and charged with violating a
domestic violence order2 and being a convicted felon in possession of a handgun.3
The felony conviction used for the handgun charge was from his possession of a
controlled substance charge in 2015. Appellant ultimately accepted a plea
agreement. In exchange for pleading guilty, the possession of a handgun by a
convicted felon would be amended to a charge of possession of a firearm by a
convicted felon.4 Nothing would change regarding the violation of the domestic
violence order. At Appellant’s sentencing hearing, defense counsel discussed the
prior diversion arrangement with the court, but believed because Appellant did not
move to have his prior conviction dismissed after completing his diversion term, he
was still considered a convicted felon. Appellant was sentenced in accordance
with the plea agreement. This appeal followed.
1
Kentucky Revised Statutes (KRS) 218A.1415.
2
KRS 403.763.
3
KRS 527.040.
4
KRS 527.040(2)(a) states that the possession of a firearm by a convicted felon is a Class D
felony unless the firearm is a handgun, in which case it is a Class C felony.
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ANALYSIS
On appeal, Appellant argues that because he completed his diversion
program for the prior felony, he was not a convicted felon when he was charged
with possession of the firearm; therefore, his conviction and sentence for
possession of a firearm by a convicted felon is illegal and contrary to statute. The
Commonwealth argues that Appellant waived all issues on appeal when he made
an unconditional guilty plea.
While an unconditional guilty plea waives the right to
appeal many constitutional protections as well as the
right to appeal a finding of guilt on the sufficiency of the
evidence, there are some remaining issues that can be
raised in an appeal. These include competency to plead
guilty; whether the plea complied with the requirements
of Boykin v. Alabama, 395 U.S. 238, 244, 89 S. Ct. 1709,
23 L. Ed. 2d 274 (1969); subject matter jurisdiction and
failure to charge a public offense; and sentencing
issues. In Roe v. Flores-Ortega, the United States
Supreme Court recognized that “a guilty plea reduces the
scope of potentially appealable issues.” 528 U.S. 470,
480, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000)
(emphasis added).
Windsor v. Commonwealth, 250 S.W.3d 306, 307 (Ky. 2008) (footnotes and
citations omitted). Such sentencing issues that can still be raised on appeal are that
the sentence is illegal and that the plea agreement violated the law. McClanahan v.
Commonwealth, 308 S.W.3d 694, 701 (Ky. 2010).
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Here, Appellant entered into a diversion program pursuant to KRS
533.250. KRS 533.250(1)(f) requires a person to enter a guilty plea as part of the
diversion program. KRS 533.256 states in relevant part:
(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 agreement should be voided and the court
should proceed on the defendant’s plea of guilty in
accordance with the law.
KRS 533.258 states:
(1) If the defendant successfully completes the provisions
of the pretrial diversion agreement, the charges against
the defendant shall be listed as “dismissed-diverted” and
shall not constitute a criminal conviction.
(2) The defendant shall not be required to list this
disposition on any application for employment, licensure,
or otherwise unless required to do so by federal law.
(3) Pretrial diversion records shall not be introduced as
evidence in any court in a civil, criminal, or other matter
without the consent of the defendant.
In the case at hand, Appellant argues that his diversion ended in 2018;
therefore, his previous felony charge should have been dismissed and he should not
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have been considered a convicted felon for purposes of the convicted felon in
possession of a handgun/firearm charge.
In Thomas v. Commonwealth, 95 S.W.3d 828 (Ky. 2003), the
Kentucky Supreme Court held that when a defendant pleads guilty and enters into
a felony diversion program, as occurred here with Appellant, that defendant is
considered a convicted felon until the diversion program is completed. Id. at 829-
30. In addition, a defendant is entitled to have his conviction dismissed, pursuant
to the diversion agreement, if the defendant has completed the diversion, the
diversion period has expired, and the Commonwealth has not moved to void or
terminate the diversion agreement for noncompliance before the diversion period
expired. Ballard v. Commonwealth, 320 S.W.3d 69, 74 (Ky. 2010).
Here, the Commonwealth has argued that Appellant did not complete
the diversion program; however, it does not explain how Appellant failed to
complete the program or what else Appellant was required to do. In addition, the
Commonwealth does not claim that it moved to void or terminate the diversion
agreement. Finally, the Commonwealth does not dispute that Appellant entered
into a diversion program back in 2015. We note that in the case of Tucker v.
Commonwealth, 295 S.W.3d 455 (Ky. App. 2009), a previous panel of this Court
held that when a diversion program term expires and the Commonwealth does not
move to void or terminate the diversion agreement, then the defendant is deemed
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to have successfully completed the diversion even if not all the terms of the
diversion agreement have been met. Id. at 457-58.
CONCLUSION
Unfortunately, because Appellant’s trial counsel believed Appellant
was still considered a convicted felon based on his 2015 criminal charge, the facts
surrounding Appellant’s diversion agreement and its terms were not fully explored.
On the other hand, there is sufficient evidence to suggest that Appellant might have
completed his diversion program and his 2015 felony conviction was erroneously
not dismissed. We believe additional proceedings are necessary. If Appellant
completed his diversion, then he should not have been charged with being a felon
in possession of a handgun or firearm. This would mean that his current sentence
was illegal and the plea agreement he entered into was contrary to law.
McClanahan, supra. We therefore vacate Appellant’s current conviction and
remand. On remand, the trial court should determine whether Appellant
successfully completed his diversion program.5
ALL CONCUR.
5
We wish to make clear that we are not voiding Appellant’s plea agreement. If the trial court
deems Appellant did not complete his diversion, then the plea agreement will stand and his
current conviction can be reinstated.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Adam Meyer Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Stephanie L. McKeehan
Assistant Attorney General
Frankfort, Kentucky
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