COMMONWEALTH v. RAIDER (2024)

We granted discretionary review to determine whether a trial court could, upon discovering that a defendant had absconded from Drug Court and been previously terminated from the program, conduct a hearing to revoke a defendant's related pretrial diversion on its own initiative and without the Commonwealth filing a motion to revoke. The Court of Appeals held as a matter of first impression,¹ that Kentucky Revised Statutes (KRS) 533.256 requires the Commonwealth to first make a motion to revoke in order to initiate a defendant's revocation.

We disagree and rule that KRS 533.256 does not mandate that the Commonwealth first make a motion for revocation before a trial court may act. In accordance with our statutes and rules, a trial court may take notice that a defendant has absconded from Drug Court and terminate that defendant from Drug Court. If the successful completion of Drug Court is required for the completion of diversion, this renders the defendant in violation of the conditions of diversion. Under such circumstances, a trial court may sua sponte notice, schedule and conduct such hearings as may be necessary to revoke diversion and sentence a defendant. We therefore reverse the opinion of the Court of Appeals which reversed the Estill Circuit Court's revocation of Thomas Raider's pretrial diversion.

I. FACTUAL AND LEGAL BACKGROUND

On September 8, 2016, Raider was arrested on charges of first-degree trafficking in a controlled substance, first offense (less than two grams of methamphetamine); trafficking in marijuana, first offense (less than eight ounces); first-degree possession of a controlled substance, first offense (methamphetamine); and possession of drug paraphernalia. Raider was subsequently indicted on all four charges and a public advocate was appointed to represent him. On September 27, 2016, Raider was granted monitored conditional release (MCR), which required that he report to pretrial services, not commit any new offenses, refrain from consuming drugs or alcohol, and submit to random drug testing.

Following his release, pretrial services notified the trial court that Raider had failed to “test or contact pre-trial services” as he had been directed. The trial court then entered an order which stated that it had been “advised by Pretrial Services pursuant to [Kentucky Rules of Criminal Procedure (RCr)] 4.42 that the Defendant has violated his conditions of release” and issued a bench warrant for his arrest. Raider was subsequently apprehended and remained incarcerated until the later entry of his plea agreement.

On April 4, 2017, the trial court entered an order referring Raider to Drug Court. On May 4, 2017, the Commonwealth submitted a formal offer on a plea of guilty ² in which the Commonwealth agreed to recommend sentences of: (1) five years’ diverted for five years on completion of Drug Court for the charged offense of first-degree trafficking in a controlled substance, first offense (less than two grams of methamphetamine); (2) “12 [months] concurrent diverted” on the charge of trafficking in marijuana, first offense (less than eight ounces); (3) dismissal of the first-degree possession of a controlled substance, first offense (methamphetamine) charge; and (4) “12 [months] concurrent for a total of 5 years diverted” on the possession of drug paraphernalia charge. Notably, the Commonwealth's offer also stated, “Def[endant] currently has 2 pending cases involving poss[ession] and trafficking meth.”

On May 26, 2017, Raider signed two motions. The first was for pretrial diversion ³ stating he would enter a guilty plea in exchange for the Commonwealth's recommendation that his cases be diverted, such diversion would be supervised, and that he would enter and complete Drug Court. The motion stated that, “[i]n return for my plea, the Commonwealth had recommended a sentence of ‘5 (five) years.’ ”

Pursuant to the parties’ agreement, on June 23, 2017, the trial court sentenced Raider to five years with pretrial diversion to be run concurrently with a separate three-year diversionary period stemming from a separate conviction ⁴ in the same court. On that same date, the trial court also entered an order of admission to Drug Court and an order granting pretrial diversion.⁵

The latter order stated Raider's diversion would be supervised by the Drug Court and specifically noted that his diversion was conditioned upon his successful completion of Drug Court. The order was signed by Raider acknowledging that he understood all these conditions.

In order to avoid prison, Raider had to satisfactorily meet the terms of his agreed-upon pretrial diversion. One of the terms was that he not commit any additional crimes. Another term was his completion of Drug Court.

Pretrial diversion is governed by KRS 533.250 to 533.262 and RCr 8.04. Drug Court is not a “court” in the jurisprudence sense but is a drug treatment program recognized by our General Assembly (KRS 26A.400) and administered by the Kentucky Supreme Court, which has adopted rules for its governance. See Kentucky Administrative Procedures of the Court of Justice (AP) Part XIII (Procedures for Drug Court).

Drug Court, Kentucky's first Specialty Court program, was created with the intention of reducing the negative impacts of drug use and associated criminal behavior. Its comprehensive treatment and support services are designed to address the root cause of a defendant's involvement in the justice system leading to reduced rates of recidivism, improved health outcomes and increased opportunities for successful re-entry.

Individuals eligible for Drug Court are those who have been charged with drug use or nonviolent drug-related crime, with their main problems stemming from having a substance use disorder. Drug Court combines a treatment component with the legal weight of the judiciary. Instead of spending time in jail or serving a prison sentence, participants agree to complete a substance use disorder program supervised by a judge. The program uses a team approach that involves collaboration among local judges, Drug Court staff, prosecutors, defense counsel, treatment professionals, law enforcement officers and other community agencies. Kentucky has found this to be a cost-effective and meaningful alternative to confinement.

Those who complete the Drug Court program may have their charges dismissed through diversion. That was the plan for Raider when he agreed to participate in Drug Court and entered his plea agreement, but by August 2017, Raider's noncompliance with the rules of Drug Court were already of record. However, instead of being dismissed from Drug Court, having his diversion revoked, and thereafter being sentenced to five years of incarceration, the trial court repeatedly ordered Raider to serve sanctions. On August 9, 2017, the trial court ordered Raider to serve five days in custody. On August 23, 2017, the trial court ordered Raider to serve an additional fourteen days in custody. These “graduated” sanctions not only exhibited the trial court's patience with Raider but were also in keeping with the stated goal of Drug Court, namely effective treatment over incarceration.⁶

On September 20, 2017, Raider was again jailed for “Drug Court violations” and was ordered to remain in “custody until transfer order.” On September 28, 2017, the trial court ordered Raider to be transported to the Crossroad Treatment Center in Corbin, Kentucky where he was to remain until completion of a ninety-day in-house drug treatment program.

On January 3, 2018, the Drug Court recovery coordinator signed and transmitted a violation form ⁷ to the court with the box checked for “Absconded from the program” and the handwritten entry of “FTA [failure to appear] for DC [Drug Court] on 1-3-2018,” which would have been a date following completion of the ordered in-house treatment program.

Acting upon this information, on January 4, 2018, the trial court terminated Raider from the Drug Court program using a form titled Notice of Violations and Termination from Drug Court.⁸ The trial court checked the box corresponding to “absconded” and noted Raider “[d]id not return to program after in-house treatment.”

Raider's case remained procedurally stagnant for more than four years until Raider appeared for a revocation hearing May 3, 2022, after being taken into custody on new charges.⁹ No motion had been filed by the Commonwealth seeking revocation or requesting this hearing. This hearing and all subsequent revocation proceedings appear from the record to have been wholly initiated by the trial court.

At the May 3rd hearing, the trial court inquired if this was Raider's first appearance regarding revocation and Raider's counsel responded affirmatively and announced they were ready to proceed. The trial court informed the parties that it was taking judicial notice of Raider's prior violations and his 2018 termination from Drug Court, and that such violations were grounds for revocation. Raider's counsel argued that the Commonwealth had not filed a motion to revoke. The trial court informed the parties that such a motion was not necessary, pronounced that Raider's diversion in this case was revoked and scheduled the matter for sentencing. The record in this matter contains the trial court's docket sheet for this hearing which states, “[d]iversion revoked due to D.C. [Drug Court] termination—Sentencing 6/7.”

The trial court also took up the issue of revocation regarding Raider's separately pled and unrelated criminal case, 17-CR-00037, which had been diverted for three years. Raider's counsel objected to the revocation of the three-year diversion in 17-CR-00037 on the grounds the diversionary period had expired. The trial court determined that it no longer had jurisdiction of that case. No appeal was made of that ruling and it is not a subject for consideration by this Court.

At the scheduled sentencing hearing on June 7, 2022, Raider's counsel renewed his prior objection to revocation occurring without a motion from the Commonwealth. The Commonwealth noted that the revocation had already occurred, and such revocation was effective prior to the expiration of Raider's diversion term which would have otherwise occurred on June 23, 2022. The trial court took the objections under submission indicating it would revisit the matter at a subsequent hearing which it scheduled for July 22, 2022.

On July 22, 2022, Raider's counsel argued that the five-year diversionary period had, by now, expired despite the fact that the court had pronounced Raider revoked on May 3rd. The trial court informed the parties that it had reviewed Raider's files, would do so again, and take the matter under submission.

On August 2, 2022, the trial court entered an opinion and order styled “Order Revoking Pretrial Diversion Imposition of Sentence,” finding “from a preponderance of evidence that the Defendant violated his Diversion by being terminated from Drug Court, and by receiving a new felony charge in Estill Circuit Court Case #21-CR-113.” The order noted that Raider's diversion was not set to expire until June 23, 2022, and he “was revoked on May 3rd, 2022,” before the expiration of the diversionary period. Raider was ordered to serve a five-year sentence in accordance with his plea agreement and granted credit for time already served.

Raider appealed and the Court of Appeals reversed Raider's judgment and sentence with instructions that the charges in the underlying action be dismissed with prejudice. In its opinion, the Court of Appeals determined that KRS 533.256 defines the roles of the trial court and the prosecution and that it could not ignore the fact that KRS 533.256(1) did not contain any language signifying that a trial court could revoke diversion on its own. It opined that if the legislature intended to allow for such, it could have inserted specific language within the statute. The Court of Appeals also found that Tucker v. Commonwealth, 295 S.W.3d 455 (Ky. App. 2009), and the related decision in Ballard v. Commonwealth, 320 S.W.3d 69 (Ky. 2010), evidenced an “implicit understanding” that a motion by the prosecution “is a necessary predicate before revocation may be imposed.”

II. ANALYSIS

Revocations of diversions are to be determined by the same criteria as probation revocation, and the defendant is entitled to the same rights as if probation revocation were at issue. KRS 533.256(2). Therefore, the standard for reviewing a trial court's decision to void a diversion agreement is the same abuse of discretion standard which is used to review probation revocation decisions. 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).

Raider agreed to a diversion program with the completion of Drug Court being a clear condition precedent to the successful completion of his diversion. Raider knowingly agreed that he would be subject to a five-year sentence if he failed to complete Drug Court or in any other way violated the terms of his diversion.

Pursuant to AP Part XIII(I), § 12(3)(f), “[p]articipants may be terminated from the Drug Court if they no longer can be managed safely in the community or if they fail to comply with treatment or supervision requirements.” Raider repeatedly violated the terms and conditions of Drug Court. His failure to correct his behavior after the imposition of graduated sanctions, failure to make progress toward recovery, and final act of absconding, fully justified the trial court's decision to terminate him from the Drug Court program. Since Raider's successful completion of the Drug Court program was a necessary condition of his diversion, it is perfectly logical that the trial court would wish to revoke his diversion on its own volition. Importantly, Raider has failed to offer any excuse for his noncompliance with the conditions of his diversion.

It is against that rather straight forward backdrop that Raider asks us to agree, as a matter of statutory law, that his conviction and agreed upon sentence must be dismissed because the trial court, rather than the Commonwealth, initiated his revocation proceedings. These issues require statutory interpretation, a question of law, which we review de novo Commonwealth v. Love, 334 S.W.3d 92, 93 (Ky. 2011).

We begin our review by considering the precedent in Tucker v. Commonwealth, 295 S.W.3d 455 (Ky. App. 2009), and a related decision in Ballard v. Commonwealth, 320 S.W.3d 69 (Ky. 2010), which were relied upon by the Court of Appeals as demonstrating an “implicit understanding” in KRS 533.256 that a motion by the Commonwealth is a “necessary predicate” before a trial court may consider revoking diversion.

In Tucker, the Court of Appeals reversed a diversion revocation and sentence in a flagrant non-support matter because the Commonwealth had not filed a motion to revoke prior to the expiration of Tucker's pretrial diversion term. The opinion stated:

While we note that counsel have set forth a number of arguments, we believe this case can be resolved merely by noting that the Commonwealth had the means readily at hand to seek to have Tucker's pretrial diversion revoked if it believed his failure to pay child support, or his assault conviction, or any other alleged violation of his pretrial diversion conditions justified such action. Those means are found in KRS 533.256(1). We need not concern ourselves with why the Commonwealth failed to act to have Tucker's pretrial diversion revoked before it expired. The fact is that it did not do so.

Tucker, 295 S.W.3d at 457.

In this Court's later opinion in Ballard, the Commonwealth moved to remove the Defendant from pretrial diversion prior to the expiration of the diversion period but the hearing was not scheduled until after expiration. While the trial court dismissed the motion and determined that it lacked jurisdiction because the diversion period had ended, this Court disagreed, stating:

Unlike probation, there is no language in the statute to suggest that a trial court may only revoke the diversion agreement during the diversion period itself. See KRS 533.020(1) (when a defendant fails to obey the conditions of probation, the trial court may revoke the sentence “at any time prior to the expiration or termination of the period of probation”). Rather, 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. See RCr 8.04.

Ballard, 320 S.W.3d at 74.

Together, these opinions collectively stand for the proposition that, although a trial court has authority to void diversion after expiration of the diversionary period, a “motion by [the] Commonwealth to void [a] diversion agreement is ‘required to be made before expiration of the pretrial diversion period.’ ” Id. at 74 (quoting Tucker, 295 S.W.3d at 458).

Tucker and Ballard concerned matters where the Commonwealth had brought the issue of terminating diversion before the trial court by filing, or not filing, a motion to revoke diversion prior to the expiration of the defendant's term of diversion. Neither opinion concerned itself with analyzing our statutes and rules to decide whether a trial court, acting on its own volition and without any petition from the Commonwealth, may notice and schedule a hearing to revoke diversion within the diversion period's term. We do so now.

As a condition of pretrial diversion, a defendant is required to enter an Alford ¹⁰ plea or a plea of guilty. KRS 533.250(1)(f). If the defendant fails to complete the diversion agreement, the diversion agreement can be voided by the trial court, and the court is to “proceed on the defendant's plea of guilty in accordance with the law.” KRS 533.256(1).

KRS 533.256(1), in full, states:

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.

(Emphasis added). The Court of Appeals found this language provided the limitation that only the Commonwealth “may apply” for a hearing to void the diversion agreement and requires that the Commonwealth must petition the trial court to void the defendant's diversion agreement before the trial court can act.

KRS Chapter 533, “Probation and Conditional Discharge” (KRS 533.010 to 533.290), begins with the introductory statute KRS 533.010. It states, “[i]f during the term of the alternative sentence the defendant fails to adhere to and complete the conditions of the alternative sentence the court may modify the terms of the alternative sentence or may modify or revoke probation and alternative sentence and commit the defendant to an institution.” KRS 533.010(7) (emphasis added). This statute gives an obvious grant of oversight and discretion to the trial court.

Nothing within any relevant section of KRS Chapter 533 intimates that the Commonwealth “holds the keys” to the trial court's exercise of its authority in this area and there is no language suggesting that the Commonwealth must first file a motion to revoke in order for the trial court to be allowed to acknowledge a violation and to thereafter decide whether such violation of a defendant's conditions of release warrants either a modification or outright revocation.

KRS 533.258 states in part, “[i]f 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.” KRS 533.258(1). This law is clear that a diverted case can only be dismissed upon successful completion of the terms of the diversion. One who, like Raider, absconds for years, refuses continuing treatment and monitoring, and is dismissed from Drug Court, cannot successfully complete diversion and therefore, by law, cannot have his criminal charges dismissed. Regardless of who may, or must, initiate revocation proceedings, no court may dismiss criminal charges and list the case as “dismissed diverted” unless “the defendant successfully completes the provisions of the pretrial diversion agreement.”

KRS 533.260 (“Rules for administration”) states, “[t]he Supreme Court of Kentucky shall, by rule, determine all forms and other matters necessary for the proper administration of the pretrial diversion program.” RCr 8.04 sets out the rules we apply to pretrial diversions and contains provisions for terminating these agreements.

RCr 8.04(4) provides as follows:

Termination of agreement; resumption of prosecution.

․

(b) The court may order the agreement terminated and the prosecution resumed if, prior to completion of the agreement by the defendant, the court finds at a hearing ․

(ii) The defendant has committed a material violation of the agreement or has failed to complete the terms of the agreement.

Pursuant to RCr 8.04(4)(b), the trial court is empowered to terminate the agreement and order prosecution to resume if the trial court finds the defendant has “committed a material violation of the agreement or has failed to complete the terms of the agreement.” This provision does not mandate the Commonwealth initiate the proceeding or agree that termination is appropriate.

We have published Administrative Procedures which address procedure between Drug Court and the trial courts. The trial court itself, rather than the Commonwealth, initiated Raider's revocation proceedings. Such process is in conformity with AP Part XIII(I), § 11(1) which provides that once a Drug Court judge issues a notice terminating a participant from Drug Court, “the case shall be referred back to the appropriate circuit or district court for further proceedings.”

This section also stated “[t]he receiving judge shall schedule the case for a hearing on a criminal motion docket for further proceedings.” AP Part XIII(I), § 11(3).¹¹ While the trial court waited until Raider was back before it on a different matter to schedule “further proceedings” in this case, the process outlined in our Administrative Procedures does not call for the Commonwealth to serve as a necessary intermediary between the Drug Court, which first terminates a defendant from the program, and the trial court which then schedules further proceedings to consider terminating diversion.

III. CONCLUSION

It is clear in this Commonwealth that diversion is a privilege. There is no constitutional right to either diversion or participation in Drug Court programs, rather they are matters of legislative and judicial grace. Like probation, a defendant whose criminal case has been diverted may retain that status only as long as the trial court is satisfied that he has not violated the terms or conditions of his diversion.

Clearly our procedural rules and statutes were meant to be read and applied together. RCr 8.04 and our Administrative Procedures highlight the trial court's oversight of diversion and underlying Drug Court proceedings.

The obvious goal of our Drug Courts is for defendants to achieve sustained sobriety. Our General Assembly and this Court have for years endeavored together to address drug abuse and dependency in a manner which prioritizes treatment and healing in lieu of incarceration when defendants are amenable to treatment and can commit themselves to recovery.

For our laws to be interpreted to permit a defendant to abscond for years, not complete required treatment and not demonstrate any intent to achieve recovery, all without any consequence, defeats the purpose of our Drug Court program. This would be an absurd result which neither the General Assembly nor this Court, ever intended.

Accordingly, we reverse the Court of Appeals and affirm the Estill Circuit Court's order revoking Raider's diversion and sentencing him in accordance with his plea agreement.

FOOTNOTES

1.   Raider v. Commonwealth, 2022-CA-1070-MR, 2023 WL 6521602 (Ky. App. Oct. 6, 2023) (unpublished).

2.   Administrative Office of the Courts (AOC) Form 491.1.

3.   AOC Form 347.

4.   Commonwealth v. Raider; 17-CR-00037.

5.   AOC Form 345.

6.   “Incarceration is imposed judiciously and sparingly.” AP Part XIII(I), § 12(3)(e).

7.   Drug Court form DC-23 (Revised 10-09).

8.   Drug Court form DC-24 (Revised 6-11).

9.   This new criminal charge would have been sufficient for the trial court to have revoked Raider's diversion.

10.   North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

11.   This section was subsequently amended by Order 2022-50; effective March 1, 2023, and is now found at AP Part XIII, § 16(3); Involuntary termination, which reads: “Upon entry of the Notice of Termination, the case shall be assigned to the appropriate circuit or district court judge or venue shall be transferred as provided in Section 9 for further proceedings.”

OPINION OF THE COURT BY JUSTICE THOMPSON

All sitting. All concur.