Wilson v. Commonwealth Of Kentuck

839 S.W.2d 17 (Ky. Ct. App. 1992)

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Nature of the Case

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Facts

On or about July 22, 1989, D attacked Sheila M. Alexander Claycomb slashing her with a piece of glass inflicting multiple cuts on her face, arms, and chest. D was indicted and entered into a plea agreement with the Commonwealth whereby he would plead guilty to assault in the second degree, and the Commonwealth would recommend the minimum sentence of five (5) years while taking no stand on probation. The plea agreement was signed by Hon. Thomas Faulkner, Jefferson County Assistant Commonwealth's Attorney, on behalf of the Commonwealth, Hon. Anne Penn Hardy as counsel for D, and D. A 'Motion to Enter Guilty Plea' was also signed by Ms. Hardy and D on that date. Jefferson Circuit Judge Ken G. Corey accepted D's guilty plea on October 24, and Judge Corey then passed the case to Jefferson Circuit Judge Edwin A. Schroering for sentencing. The 'Judgment on Guilty Plea' dated October 25, 1990, was signed by Judge Schroering. The judge held a sentencing hearing at which attorneys Faulkner and Hardy were present along with Ms. Claycomb, Claycomb's spouse, and D. The Commonwealth asserted that it had no stand on probation; however, it informed the court that the victim, Ms. Claycomb, was present and willing to answer any questions asked by the court. Judge Schroering made an inquiry regarding restitution. D did not at the time of sentencing nor on appeal object to Judge Schroering's discussion with the Commonwealth and Ms. Claycomb at the sentencing hearing. A five-year sentence was imposed. D filed a timely motion for shock probation and a hearing on the motion. Both the Commonwealth and Ms. Claycomb argued against shock probation. Counsel for D objected to the Commonwealth's stated opposition and Ms. Claycomb's testimony claiming that both had violated the plea agreement. The court proceeded under the assumption that probation was not covered by the agreement and that mistake was compounded by the fact that counsel for D was proceeding under the erroneous belief that Ms. Claycomb had signed-off on the plea agreement. The judge stated that he always considered the plight of the victim when assessing punishment. Further, the judge operating under the belief that the Commonwealth had not bargained away in the plea agreement its right to oppose shock probation, considered the Commonwealth's argument against shock probation. The motion was denied. This appeal resulted.