Troy Robert Calvert v. Commonwealth of Kentucky

RENDERED: MARCH 18, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0689-MR
TROY ROBERT CALVERT APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT
v. HONORABLE KEN M. HOWARD, SPECIAL JUDGE
ACTION NO. 19-CR-00360
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: COMBS, JONES, AND McNEILL, JUDGES.
McNEILL, JUDGE: Troy Calvert (“Calvert”) appeals the Daviess Circuit Court’s
judgment convicting him of five counts of retaliating against a participant in the
legal process and sentencing him to five years in the penitentiary. Specifically, he
appeals the circuit court’s denial of his motion to withdraw his guilty plea. Finding
no error, we affirm.
BACKGROUND
On March 7, 2019, Calvert was indicted by a Daviess County Grand
Jury on six counts of retaliating against a participant in the legal process related to
a divorce case. On the day of trial, Calvert entered a guilty plea pursuant to a plea
deal. In exchange for his guilty plea, the Commonwealth agreed to dismiss one
count of retaliating against a participant in the legal process and recommended five
years on each remaining count to be served concurrently. The Commonwealth also
agreed to recommend shock probation after ninety days.
At the shock probation hearing, the Commonwealth stated that it
stood by its recommendation for shock probation, provided Calvert have no
contact with his wife or children. The circuit court clarified with the
Commonwealth that it was actually recommending probation and not just declining
to take a stance. The court then questioned Calvert at length about his ability to
comply with conditions of shock probation, specifically having no contact with the
victims. Following the hearing, the court took the motion under submission.
The next day, the Commonwealth filed a “pleading” with the circuit
court out of “candor,” containing recorded telephone conversations between
Calvert and his mother following the shock probation hearing. The
Commonwealth believed the recordings were relevant to Calvert’s “intentions of
abiding by the plea agreement.” At a hearing on January 17, 2020, the
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Commonwealth played several of the phone conversations for the court. The
phone calls reflected, generally, Calvert’s frustration at not being released on the
day of the shock probation hearing, as well as his intentions to contact his family
following his release.
Calvert objected at the hearing to the introduction of any new
evidence relevant to shock probation, arguing that the Commonwealth’s
introduction of prejudicial evidence is an implicit violation of their agreement to
recommend probation. Before listening to the calls, the court clarified with the
Commonwealth whether it was changing its position on recommending probation,
noting that if so, that was a separate legal matter that would need to be addressed.
The Commonwealth agreed, and the court reiterated that it understood the
Commonwealth to be recommending probation. At the end of the hearing, the
court stated its belief that the phone calls were “marginally, if at all probative” to
its decision. The court gave either party time to file a motion if they were
changing their position on shock probation.
On January 22, 2020, the court entered an order denying Calvert’s
motion for shock probation. It noted that since the Commonwealth agreed to
recommend shock probation as part of the plea agreement, it was required to give
“due consideration” to the agreement of the parties. The court further noted,
however, that shock probation was discretionary. Ultimately, the court denied
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shock probation based upon a finding that Calvert was likely to commit another
crime during the period of shock probation. The court specifically mentioned the
inconsistency between Calvert’s agreement to avoid contact with his wife and
children and his statements in his presentence investigation report and the recorded
jail phone calls with his mother upon which the indictment was based.
Importantly, the court did not cite the phone calls introduced at the January 17,
2020 hearing as a basis for his decision.
Subsequently, Calvert filed a pro se “Motion that the Commonwealth
Violated the Plea Agreement and to Vacate the Guilty Plea and Set a Date for
Trial,” arguing that the Commonwealth’s introduction of prejudicial information at
the January 17, 2020 hearing amounted to a non-favorable recommendation for
shock probation and a violation of the plea agreement. On April 30, 2020, the
circuit court denied the motion, noting that the Commonwealth “recommended the
Defendant be granted shock probation at both shock probation hearings on January
2 and 17, 2020 consistent with the plea agreement.” Significantly, it expressly
stated the evidence introduced at the January 17, 2020 hearing “did not form the
basis for the court’s ruling denying shock probation as reflected in the court’s
written order.” This appeal followed.
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STANDARD OF REVIEW
“[T]he decision whether to grant a motion to withdraw a guilty plea is
reviewed under the abuse of discretion standard.” Prater v. Commonwealth, 421
S.W.3d 380, 387 (Ky. 2014). Calvert argues on appeal that the Commonwealth
breached the plea agreement when it introduced prejudicial phone calls which
induced the circuit court to deny shock probation. Effectively, he argues, this
prejudicial information amounted to a non-recommendation for shock probation
from the Commonwealth.
ANALYSIS
“Courts have recognized that accepted plea bargains are binding
contracts between the government and defendants.” Elmore v. Commonwealth,
236 S.W.3d 623, 626 (Ky. App. 2007) (citation omitted). “Once a plea agreement
is accepted by a defendant, the agreement is binding upon the Commonwealth –
subject to approval by the trial court – and the accused is entitled to the benefit of
his bargain.” Id. (citation omitted). “Accordingly, plea agreements are interpreted
according to ordinary contract principles.” Id. (citation omitted).
Pursuant to the plea agreement, the Commonwealth agreed to
recommend shock probation after 90 days. The Commonwealth performed their
part of the agreement. The Commonwealth recommended probation at the shock
probation hearing and did not change that stance at the January 17, 2020 hearing.
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The court gave both parties the opportunity to change their positions on shock
probation before it ruled on the motion and neither party did so. The circuit court
noted in its order denying shock probation that it gave due consideration to the
Commonwealth’s recommendation pursuant to the plea agreement. Therefore,
Calvert received the benefit of his bargain.
While Calvert argues that the Commonwealth’s introduction of
prejudicial evidence after the shock probation hearing effectively amounted to a
non-recommendation, the circuit court declined to consider this evidence in its
denial of shock probation. Therefore, the circuit court did not err in denying
Calvert’s motion to withdraw his guilty plea.
CONCLUSION
For the foregoing reasons, the judgment of the Daviess Circuit Court
is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
J. Ryan Chailland Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Jenny L. Sanders
Assistant Attorney General
Frankfort, Kentucky
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