Troy Litteral v. Commonwealth of Kentucky ( 2020 )

RENDERED: AUGUST 21, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-001122-MR
TROY LITTERAL APPELLANT
APPEAL FROM BOYD CIRCUIT COURT
v. HONORABLE JOHN F. VINCENT, JUDGE
ACTION NO. 14-CR-00012
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: KRAMER, LAMBERT, AND TAYLOR, JUDGES.
LAMBERT, JUDGE: Troy Litteral appeals from a Boyd Circuit Court order
voiding his diversion agreement and sentencing him to five years’ imprisonment,
to run consecutively to the judgment of conviction rendered in Rowan Circuit
Court in 2018. We affirm.
In 2014, Litteral was indicted for an accrued child support arrearage
of $11,162.47. In December of that year, he entered into a pretrial diversion
agreement in which he consented to repay the arrearage as well as remain current
on his future payments. Court costs were waived, and Litteral’s agreed-upon five-
year sentence was diverted for five years. Although Litteral was required to pay
$186.04 per month beginning January 2015, he made little if any progress toward
the arrearage or his newly accrued obligations. In November 2016, the
Commonwealth moved to void Litteral’s pretrial diversion for failure to comply
with its terms.
Over the course of the next few years, the circuit court held a number
of hearings and granted as many continuances, mainly at the request of Litteral (for
reasons that included completing a substance abuse program and incarceration on
unrelated charges). In June 2019, the circuit court ultimately voided Litteral’s
pretrial diversion, sentenced him to five years’ imprisonment (with credit for time
served), and ordered the flagrant nonsupport sentence to run consecutively to his
sentences totaling six years’ confinement under indictment No. 18-CR-00026 in
Rowan Circuit Court. This appeal follows.
We begin by citing our standard of review, namely:
Kentucky Revised Statutes (KRS) 533.256
provides the proper standard courts must apply in
determining whether to void a pretrial diversion: “In
making a determination as to whether or not a pretrial
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diversion agreement should be voided, the court shall use
the same criteria as for the revocation of probation, and
the defendant shall have the same rights as he or she
would if probation revocation was sought.” KRS
533.256(2). “An appellate court reviews a trial court’s
decision to revoke a defendant’s probation for an abuse
of discretion.” Lucas v. Commonwealth, 380 S.W.3d
554, 555 (Ky. App. 2012). “The test for abuse of
discretion is whether the trial judge’s decision was
arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.” Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999).
Price v. Commonwealth, 534 S.W.3d 805, 806 (Ky. App. 2017).
Litteral argues that the circuit court erred in running the sentences
consecutively rather than concurrently. In support of this assertion, Litteral cites
KRS 533.040(3), which states:
A sentence of probation or conditional discharge shall
run concurrently with any federal or state jail, prison, or
parole term for another offense to which the defendant is
or becomes subject during the period, unless the sentence
of probation or conditional discharge is revoked. The
revocation shall take place prior to parole under or
expiration of the sentence of imprisonment or within
ninety (90) days after the grounds for revocation
come to the attention of the Department of
Corrections, whichever occurs first.
(Emphases added.) Litteral likens pretrial diversion revocation to probation
revocation and urges that this statute should apply. Thus, he continues, the circuit
court erred in ordering consecutive sentences because the 90-day window had
expired.
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The Commonwealth counters that pretrial diversion is considered
“awaiting trial,” and, therefore, KRS 533.040(3) is inapplicable. The
Commonwealth urges application of KRS 533.060(3), which states: “When a
person commits an offense while awaiting trial for another offense, and is
subsequently convicted or enters a plea of guilty to the offense committed while
awaiting trial, the sentence imposed for the offense committed while awaiting trial
shall not run concurrently with confinement for the offense for which the person
is awaiting trial.” (Emphasis added.)
The issue of “awaiting trial” has been addressed in controlling
precedent:
The Kentucky Supreme Court addressed the
interpretation of the phrase “awaiting trial” as applied in
a case where a guilty plea had been entered in Cosby v.
Commonwealth, 147 S.W.3d 56 (Ky. 2004). In Cosby,
the Supreme Court found that the phrase “awaiting trial”
in KRS 533.060(3) encompassed the time period after a
defendant pleads guilty but before he is sentenced. Id. at
60. However, Cosby did not directly address the issue
we are faced with here. Indeed, there are, as of yet, no
published cases in the Commonwealth dealing with
whether periods of pretrial diversion may be considered
periods where one is “awaiting trial.”
....
Because violation of a pretrial diversion agreement
may result in the voiding of the agreement, we find that
the period of pretrial diversion may essentially be
construed as a period “awaiting trial.” As the Supreme
Court found in Cosby that “awaiting sentencing” was
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essentially tantamount to “awaiting trial,” we find that
the period of pretrial diversion is also equivalent to
“awaiting trial.” Indeed, the effect of a court voiding a
pretrial diversion agreement is that the diversionary
period essentially reverts to a period of presentencing.
This construction of the statute comports with the
Supreme Court’s description of pretrial diversion in Flynt
v. Commonwealth, 105 S.W.3d 415 (Ky. 2003) as an
“interruption of prosecution prior to final disposition[.]”
Id. at 424. (Emphasis added).
We also note that this holding is in line with
legislative intent, because the purpose of the legislature’s
enactment of KRS 533.250 as interpreted by the Supreme
Court in Cosby, was to penalize recidivism during
periods of release or while awaiting additional court
proceedings. Cosby, 147 S.W.3d at 60.
Williams v. Commonwealth, 354 S.W.3d 158, 160-61 (Ky. App. 2011) (footnote
omitted). Accordingly, the time constraints in KRS 533.040(3) urged by Litteral
are inapplicable here, and the circuit court did not err in ordering Litteral’s
convictions to run consecutively with each other. Price, supra.
The judgment of the Boyd Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Steven Nathan Goens Daniel Cameron
Assistant Public Advocate Attorney General of Kentucky
Department of Public Advocacy
Frankfort, Kentucky Christopher Henry
Assistant Attorney General
Frankfort, Kentucky
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