ROARK v. COMMONWEALTH (2025)

OPINION

The Appellant, Clinton Roark (“Roark”), challenges the denial of his CR ¹ 60.02 motion. Roark claims the circuit court erred by denying his motion to vacate the voiding of his pretrial ² diversion, because the circuit court had lost jurisdiction to do so. We affirm because the Commonwealth made a timely application to void the felony diversion and the circuit court had the independent authority to begin the process for voiding the felony diversion.

FACTUAL AND PROCEDURAL HISTORY

Roark was charged with Burglary in the Third Degree (a Class “D” felony) in December 2018. He entered into a plea bargain with the Commonwealth. Roark pled guilty in exchange for felony diversion. Roark agreed to a three-year sentence subject to a felony diversion for a period of three years. The parties agree that the felony diversion began on February 26, 2019.

A final review hearing occurred on February 25, 2022, to determine if Roark had successfully completed his felony diversion. At this hearing, the Commonwealth objected to a dismissed-diverted result for this case due to Roark having had several convictions ³ out of the Knox District Court, as well as a pending DUI ⁴ charge. Roark had been arrested on his latest DUI charge just three days prior to the review hearing.

Roark was present at the final review hearing (he was already in custody due to the pending DUI 3rd case). The circuit court appointed DPA ⁵ to represent Roark for the proceedings in this case as well. The Commonwealth said it objected to dismissal and “would move to revoke his diversion” and asked for time to prepare and file a formal, written motion.

The circuit court said: “I'm not going to dismiss the case obviously” because of the pending charges. The circuit court also commented on unpaid costs. The circuit court then stated a finding of “necessity” to “extend” the diversion to the end of March which would allow time for the Commonwealth's formal, written motion and proper preparation by both sides for a hearing. The date for the hearing was set for March 25, 2022. Neither Roark nor his counsel stated any objection. The attorney simply stated: “Yes, your honor” as the hearing concluded.

The circuit court signed a bench order dated February 25, 2022. The court clerk did not stamp the order as entered until March 18, 2022. This delay is not explained. The record does not reveal any separate notation of the entry of this order pursuant to CR 58.

On March 25, 2022, counsel for Roark and the Commonwealth informed the circuit court that they had reached an “agreement.” Roark stipulated that he had violated the terms of his felony diversion. The Commonwealth stated they were “not asking for him to be incarcerated but asking for his diversion to be set aside.”⁶ The circuit court voided the felony diversion and set a sentencing hearing for the following month.

On April 22, 2022, Roark appeared with counsel for sentencing. His counsel stated to the circuit court her understanding that Roark would be granted probation. The Assistant Commonwealth Attorney, not the one present on March 25, 2022, indicated he could find no such agreement and asked the circuit court to sentence Roark to the agreed-upon three years. The circuit court, after considering a presentence investigation report with Roark's criminal history, sentenced him to the three-year sentence initially agreed upon in 2019. Roark did not appeal.

Over a year later, in June 2023, Roark filed a “Motion to Vacate Voiding of Pretrial Diversion Pursuant to CR 60.02.” In this motion, Roark argued that because no written motion to void the felony diversion was filed by the Commonwealth until more than three years after the felony diversion had begun, the circuit court lost jurisdiction to void his felony diversion. The circuit court denied the CR 60.02 motion by an order entered on April 17, 2024. This appeal follows.

STANDARD OF REVIEW

“The standard of review of an appeal involving a CR 60.02 motion is whether the trial court abused its discretion.” White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). “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) (citations omitted).

Specifically, Roark complains about jurisdiction to proceed with voiding his felony diversion. “The question of jurisdiction is ordinarily one of law, meaning that the standard of review to be applied is de novo.” Harrison v. Park Hills Bd. of Adjustment, 330 S.W.3d 89, 93 (Ky. App. 2011) (emphasis added) (citing Appalachian Regional Healthcare, Inc. v. Coleman, 239 S.W.3d 49, 53-54 (Ky. 2007)). To determine Roark's argument requires us to apply statutory language. Statutory interpretation is a matter of law, which we also review de novo. Commonwealth v. Raider, 706 S.W.3d 62, 67 (Ky. 2024).

ANALYSIS

We begin our analysis with the observation that we may affirm the circuit court for any reason supported by the record. Emberton v. GMRI, Inc., 299 S.W.3d 565, 576 (Ky. 2009). We then note that neither party argued the inapplicability of CR 60.02 due to Roark's failure to appeal the decision voiding the felony diversion and then imposing a sentence.

Our process for post-conviction review is well-established. CR 60.02 may not be used to grant relief if the issue could have been addressed on direct appeal. See Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). Roark argues about particular-case jurisdiction, not subject matter jurisdiction. See generally Louisville Historical League, Inc. v. Louisville/Jefferson County Metro Government, 709 S.W.3d 213 (Ky. 2025). If Roark believed that the circuit court lost jurisdiction to act in his case because of the lack of a timely written motion, this could and should have been raised by direct appeal. The same may be said of any complaint regarding an “agreement” about the sentence to be imposed.

We also may not consider arguments advanced by an appellant which were not first raised with the trial court. Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989). Roark now contends that the extension of his felony diversion term (which did not violate the maximum allowed total term of five years) violated his due process rights. This argument was not made to the circuit court. For reasons which we will later explain, the question of an extension does not necessarily control the propriety of the circuit court's actions in this case.

Felony diversion is specifically governed by KRS 533.250 et seq.⁷ KRS 533.254 provides that the period of a felony diversion and its conditions are to be treated the same as cases of probation “in so far as possible.” But how a probation may end and how a felony diversion may end are not the same, and the difference is important.

Under KRS 533.020(4), if the probation revocation process has not been completed during the term,⁸ probation automatically expires unless a warrant is pending. If a warrant is served after the expiration of the probation term, then the probation is extended only until the first appearance of the defendant after arrest on the warrant. Commonwealth v. Tapp, 497 S.W.3d 239 (Ky. 2016). If the circuit court does not further extend the probation, if necessary,⁹ at that first appearance by a proper court order,¹⁰ the power to revoke probation is lost. Such an extension does not require a hearing. Tapp, 497 S.W.3d at 242.

Tapp creates a logical approach to the process given the language of the probation statutes. The circuit courts will often find that the defendant does not object to a short extension so that written specifications may be met with a defense and arguments may be better presented before a revocation decision is made. The implicit alternative left by Tapp is to proceed immediately at the first appearance so as not to lose jurisdiction to act. Without an extension, due process concerns would arise.

The Kentucky Supreme Court has suggested legislative corrections when its decisions illustrate perhaps unintentional problems with the existing process. The most recent example may be found in Commonwealth v. Ellery, 713 S.W.3d 114 (Ky. 2025). In Ellery, a divided Kentucky Supreme Court applied Tapp and held that, even when a defendant absconds from probation and a warrant is pending for years, this does not toll the time of the probation term. Thus, because the Tapp process was not followed in Ellery, a defendant faced no consequence for years of absence and any probation violations occurring while on the run because the probation term had expired.

It is doubtful that the General Assembly meant to provide a window of days, if not weeks, at the end of probation terms during which crimes may be committed without consequence because prosecutors and courts may not learn of such events in time to issue a last-minute warrant. But the courts may not rewrite statutes. “[T]he plain meaning of the statutory language is presumed to be what the legislature intended, and if the meaning is plain, then the court cannot base its interpretation on any other method or source.” Revenue Cabinet v. O'Daniel, 153 S.W.3d 815, 819 (Ky. 2005) (internal quotation marks and citation omitted). It is perhaps time for an orderly process to be created for a review within a limited and reasonable time after probation expires to determine whether defendants have violated their probation conditions for the entire term of their probation. But the courts may not engraft such changes to the statutes.

Regardless of these issues with the expiration of probation, felony diversion is different. To obtain a dismissal, the defendant must “successfully complete” the terms of the felony diversion. KRS 533.258(1). There is no such provision for probation. If the probation time expires, despite serious violations, the defendant can just wait for expiration of the term and hope no one finds out about violations in time to act on them. The use of the term complete for felony diversion begs the question of how this can be determined before the term expires. We do not believe that the legislative choice of the term “successfully complete” meant to suggest that serious violations at the very end of a felony diversion term are exempt or that the courts may not promptly address such violations.

Even with trying to harmonize the probation revocation process with voiding of felony diversion, the process of voiding pretrial diversion is different from probation revocation. Under KRS 533.256(1), “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 ․” (Emphasis added.) Because practices applied to probation may also apply “so far as possible,” a warrant can be issued for someone on felony diversion instituting the Tapp process, if necessary, after arrest.

With this background, we may now examine what happened in this case and how it fits within the overall statutory framework. The circuit court here engaged in the laudable practice of scheduling a final review ¹¹ to see whether the case was ready for dismissal. At such a hearing, a probation officer (such officers also supervise those on felony diversion), or the Commonwealth may inform the circuit court if the defendant has had any alleged violations.

The court itself may be aware from the record that violations may have occurred during the term. As with probation, the court is not required to wait for a prosecutor's decision to proceed with voiding a felony diversion. For example, upon receipt of a report of a violation from a probation officer, the circuit court sua sponte may schedule a show cause hearing or issue an arrest warrant. The circuit court, not the prosecutor, is ultimately responsible for overseeing probation and felony diversion and deciding whether action should be taken about violations.

Roark insists that a written motion by the prosecutor must be filed and that such a motion must be filed before the expiration of the felony diversion term. Indeed, a panel of this Court has stated “that in the absence of a motion to revoke[sic] being filed before [a defendant's] pretrial diversion term expired” the circuit court loses jurisdiction to void the diversion. Tucker v. Commonwealth, 295 S.W.3d 455, 456 (Ky. App. 2009).

In Tucker, the Commonwealth had made a clearly untimely motion. This does not mean that a written motion is required. As we recognized in Tucker, the controlling statute speaks in terms of an application. We simply noted that the application in Tucker was made by written motion. Tucker, supra, at 456. The problem was that the application was too late.

Citing Tucker, the Kentucky Supreme Court has held: “the trial court has authority to void the diversion agreement, even after the period of diversion has ended, so long as the Commonwealth has entered a timely motion to void prior to expiration of the diversion period.” Ballard v. Commonwealth, 320 S.W.3d 69, 74 (Ky. 2010). In spite of the question raised by the requirement of successful completion of felony diversion, this approach combines the process for probation revocation and voiding of felony diversion by mandating action before the term expires. We are obliged to follow this precedent.

In the present case, the circuit court conducted a final review before the felony diversion term expired. During that hearing, the Commonwealth stated that it objected to the dismissal of the case and sought to void the felony diversion. KRS 533.256 does not require a written motion. The application may be made orally prior to the expiration of the felony diversion term. Our rules permit oral “motions” during any hearing with the trial court. RCr 8.14.

Although KRS 533.256 says nothing about the circuit court's authority, the Kentucky Supreme Court has recently explained that the circuit court need not wait for any application, whether by motion or not, from the Commonwealth to proceed with voiding pretrial diversion. Raider, 706 S.W.3d 62. Raider recognizes the authority of the circuit court to begin proceedings sua sponte. In the present case, all that was required was for the circuit court to indicate that it would conduct a hearing to determine whether to void the felony diversion.¹²

Roark relies on two cases we should distinguish. The first is Milam v. Commonwealth, 593 S.W.3d 68 (Ky. App. 2020). In that case, the circuit court extended a felony diversion for two years in lieu of voiding the diversion on the last day of the original diversion period. But the defendant did not have notice of the motion to extend, was not present for the hearing, and had no counsel to represent him at that hearing. Id. at 70. By contrast, the issue in the present case is whether the circuit court could extend a felony diversion term (if that was actually necessary to determine if a successful completion had occurred) when the Commonwealth timely applied to proceed with voiding the diversion and the circuit court also independently stated it would not dismiss the case until an opportunity for a hearing.

Similarly, Commonwealth v. Goff, 472 S.W.3d 181 (Ky. App. 2015), does not support Roark's arguments. That case involved probation, not a felony diversion. The question presented was whether the circuit court could conduct a hearing ex parte with a probationer and modify his sentence without the presence of the prosecutor or any defense counsel. Rejecting this practice, this Court reiterated the due process requirements of written notice and a hearing before modification or revocation of probation could occur. Id. at 189. Again, extension is not the same as modification.

In this felony diversion case, the issue of voiding the diversion was timely presented prior to the expiration of the term. There was time left on the maximum length of diversion. With cause to believe serious violations had occurred, the circuit court ordered a brief extension. In doing so, the circuit court made sure that Roark's due process rights of written grounds and time to prepare for a hearing were met. This is consistent with the Tapp process.

We must remember the purpose of a motion or other application to void diversion. The “purpose of service upon the party is to make that person aware of the proceedings instituted or about to be initiated against him or her. It seems clear that the purpose for the rule disappears or has been satisfied when the party appears with knowledge of the proceedings and participates or is given an opportunity to participate[.]” Messer v. Commonwealth, 754 S.W.2d 872, 874 (Ky. App. 1988). The Commonwealth's application at the February 25, 2022, hearing gave Roark notice of its intent to ask for voiding of the diversion and its reasons for doing so. When we compare the written motion with the verbal statements the Commonwealth made on February 25, 2022, we find that the Commonwealth did not add any allegations in its subsequent written motion.

Roark mentioned the “agreement” on March 25, 2022, in his brief but does not actually argue this as grounds for relief. His arguments focus on the jurisdiction of the circuit court to act. As the motion and order granting the felony diversion in this case make clear, the agreement is the original guilty plea agreement which permits the felony diversion. That agreement speaks in terms only of a recommendation ¹³ the Commonwealth may make for sentencing.

As the circuit court correctly stated during the sentencing hearing, the circuit court will consider recommendations by the Commonwealth when a diversion is voided, but the ultimate decision “is in the court's hands.” The issue first decided is whether to void a felony diversion. The sentencing decision must occur after a separate process. See Peeler v. Commonwealth, 275 S.W.3d 223 (Ky. App. 2008). The parties may not tie the hands of the circuit court when a diversion is voided, and a sentencing decision must be made by the circuit court. The circuit court must evaluate the proper factors and decide whether to probate the sentence.

We also find it difficult to ascertain what consideration Roark gave for any agreement. It is true that he stipulated to his violations at the March 25, 2022, hearing, but these multiple and serious violations were all matters of record as criminal convictions. In any event, we find no basis for any relief due to the alleged agreement in the circumstances, an argument not made by direct appeal. The circuit court acted within its discretion to require service of the agreed-upon sentence rather than grant probation.

CONCLUSION

The voiding of a felony diversion may proceed from an application made by the Commonwealth or by a sua sponte action of the circuit court. Even if we accept the premise that such an initiation must occur before the expiration of the felony diversion term, the requirement was satisfied in this case. The extension of the diversion term to allow for proper written notice and a hearing was permissible. We AFFIRM the Knox Circuit Court.

FOOTNOTES

1.   Kentucky Rules of Civil Procedure.

2.   At the outset, we note that “pretrial” diversion is to some extent a misnomer. No trial is contemplated in the process. A defendant must enter a valid guilty plea to receive diversion. If a diversion is voided, the case proceeds to sentencing consistent with the diversion agreement. We will refer to it as felony diversion to distinguish it from misdemeanor diversion, which is not subject to the statutory provisions governing felony diversion addressed in this Opinion.

3.   No. 21-M-00771: Public Intoxication Controlled Substance by guilty plea on October 28, 2021; No. 21-T-01220: Driving Under the Influence (“DUI”) 2nd by guilty plea November 16, 2021; No. 22-M-00011: Public Intoxication Controlled Substance by guilty plea on February 1, 2022.

4.   No. 22-T-00487, DUI 3rd. Roark pled guilty to this charge on April 7, 2022. We note that Roark would later plead guilty to a felony DUI 4th on May 6, 2024, in Knox Circuit Court, Case No. 24-CR-00009.

5.   Department of Public Advocacy.

6.   Enough confusion has resulted from the overlap of probation rules applied to felony diversion. Proper nomenclature has been impacted. A felony diversion is not revoked or set aside; it is voided. Kentucky Revised Statutes (“KRS”) 533.256(1).

7.   Kentucky Rules of Criminal Procedure (“RCr”) 8.04 also addresses diversion generally. But the statutory process specifically applies to felony diversion. KRS 533.262. The Kentucky Supreme Court has recognized that RCr 8.04 applies to misdemeanor cases. See Flynt v. Commonwealth, 105 S.W.3d 415, 418 (Ky. 2003). The cases we discuss in this Opinion explain application of the controlling statutory language to felony diversion.

8.   Even if a motion to revoke probation has been filed before the expiration of the probation term, but the revocation hearing occurs after the expiration of the term, the probation expires and may not be revoked. Conrad v. Evridge, 315 S.W.3d 313 (Ky. 2010).

9.   Tolling may make extension unnecessary. KRS 533.040(2). Circuit courts must be careful in cases of probation to complete the hearing process during the properly calculated term with any tolling or permissible extensions, not to exceed the total of five years allowed.

10.   Given the time constraints in such situations, typical administrative delay in the entry of the required order should not cause a loss of jurisdiction so long as the circuit court has ordered the extension verbally or by order signed at the hearing. The required court order for extension is in fact entered.

11.   This practice could also be used in probation cases with a schedule allowing sufficient time to proceed with a revocation hearing before the term expires if questions of violations are presented at the review.

12.   In this case, the proceedings began before the expiration of the felony diversion term. In light of the language of KRS 533.258 mandating a successful completion of the pretrial diversion, we must wait for another day when the Kentucky Supreme Court can revisit Ballard to decide if the circuit court has jurisdiction to act without that action being initiated by the court or the Commonwealth prior to the expiration of the felony diversion term.

13.   Trial Record at 7, 20, and 22.

EASTON, JUDGE:

ALL CONCUR.