ROBERT TAYLOR v. COMMONWEALTH OF KENTUCKY

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Court of Appeals of Kentucky.

ROBERT B. TAYLOR v. COMMONWEALTH OF KENTUCKY

NO. 2008-CA-001585-MR

Decided: January 29, 2010

BEFORE:  LAMBERT AND THOMPSON, JUDGES;  KNOPF, Double SENIOR JUDGE. BRIEF FOR APPELLANT:  Lisa Bridges Clare Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General David B. Abner Assistant Attorney General Frankfort, Kentucky

NOT TO BE PUBLISHED

AFFIRMING

Robert B. Taylor appeals from the sentence imposed by an order of the Grant Circuit Court dated March 26, 2008, but entered July 25, 2008, upon a plea of guilty to criminal facilitation to commit burglary in the first degree, a Class D felony.   Pursuant to the terms of his guilty plea, Taylor was sentenced to three and one-half years of imprisonment and a $1,000 fine.   Taylor now appeals the assessment of this fine, arguing that it is in violation of KRS 534.030(4).   Having determined that Taylor voluntarily waived the sentencing limitation set forth in KRS 534.030(4) by knowingly accepting the terms of the plea agreement, we hereby affirm the sentence entered by the Grant Circuit Court.

On January 10, 2007, Taylor was indicted by a Grant County Grand Jury of criminal attempt to commit first degree burglary, a Class C felony, and possession of burglary tools, a Class A misdemeanor.   Thereafter, Taylor was determined to be indigent and was appointed a public defender.

After consultation with his attorney, Taylor voluntarily entered into a plea agreement with the Commonwealth.   Pursuant to this plea agreement, Taylor pleaded guilty to criminal facilitation to commit first degree burglary, a Class D felony, and possession of burglary tools, a Class A misdemeanor.   Taylor asked to be placed into the Pretrial Diversion Program, which the Commonwealth did not oppose, but agreed to be subject to three and one-half years' imprisonment and a $1,000 fine if his participation in the program should be revoked.

On March 28, 2007, the Grant Circuit Court accepted the parties' plea agreement and granted Taylor entry into the Pretrial Diversion Program.   Thereafter, Taylor violated several conditions of his pretrial diversion and his participation in the program was duly revoked.   By order dated March 26, 2008, but entered July 25, 2008, the Grant Circuit Court sentenced Taylor pursuant to the terms of his plea agreement.   It is from this order that Taylor now appeals to this Court.

On appeal, Taylor argues that the imposition of the $1,000 fine pursuant to the terms of his plea agreement was in violation of KRS 534.030(4).  KRS 534.030(4) provides that fines mandated by KRS 534.030(1) “shall not be imposed upon any person determined by the court to be indigent pursuant to KRS Chapter 31.”   Since Taylor was indigent at the time of his plea agreement, he argues that the trial court erred when it accepted this portion of his plea agreement.   See Simpson v. Commonwealth, 889 S.W.2d 781, 784 (Ky.1994) (“Pursuant to the statute, the judge must independently determine the appropriateness of any fine, and if so, the appropriate amount and method of payment thereof.”).

The Commonwealth argues that the facts of the Simpson case are distinguishable from the facts presented here.   We agree.   In Simpson, a fine was imposed against an indigent defendant upon the conclusion of a jury trial.  Id. at 783.   In contrast, the fine in this case was imposed pursuant to a voluntary plea agreement.

As set forth in several unpublished decisions by this Court addressing facts nearly identical to the ones presented here, a defendant may voluntarily waive statutory sentencing protections in exchange for other advantageous sentencing or plea agreement terms.  Meyers v. Commonwealth, 42 S.W.3d 594, 597 (Ky.2001);  Commonwealth v. Townsend, 87 S.W.3d 12, 15 (Ky.2002);  see also Kennedy v. Commonwealth, 962 S.W.2d 880, 882 (Ky.App.1997) (defendant may “ ‘make a deal’ for a lesser punishment that is ascertainable rather than risk the full panoply of reprisals that might result from a trial on the merits”).

Here, Taylor's waiver of the limitation set forth in KRS 534.030(4) resulted in the following substantial benefits:  (1) his crime was reduced from a Class C felony to a Class D felony;  (2) he was subject to a reduced prison sentence (3.5 years instead of the maximum penalty for a Class D felony of 5 years);  and (3) he was permitted the opportunity to participate in the Pretrial Diversion Program.   The record indicates that Taylor entered his plea voluntarily with the advice of counsel.   He advised the trial court that he understood the plea agreement, that he had sufficient time to discuss the matter with his attorney, that all of his questions had been answered regarding the terms of the plea agreement, and that he was satisfied with the assistance that had been provided to him.   In light of these facts, we discern no reversible error on the part of the trial court in accepting the plea agreement offered in this case.

It is significant that Taylor does not seek to revoke the plea agreement as a whole, nor does he challenge the knowing or voluntary nature of his plea.   Rather, he simply wishes to avoid the imposition of the one term that is not beneficial to him.   Picking and choosing which terms of a plea agreement a defendant would like to abide by and which terms the defendant would like to avoid is not permitted in this Commonwealth.   See O'Neil v. Commonwealth, 114 S.W.3d 860, 864 (Ky.App.2003).   Accordingly, Taylor's contention that he should be granted relief in the form of having the fine, but not the other provisions, struck from the plea agreement entered into by the parties is without merit.

Finally, Taylor asserts that the relief he requests is mandated by the Fourteenth Amendment of the U.S. Constitution and Sections Two and Ten of the Kentucky Constitution.   His only support for these assertions is that allowing indigent defendants to waive the protection set forth in KRS 534.030(4) would result in “poor people [being] required to serve more time for the same

offense․”  In this case, Taylor's agreement to pay a fine actually resulted in him serving less time in prison.   Thus, we fail to discern how Taylor's agreement resulted in any violation of his right to equal or fair treatment under the law.

Having been presented with no reversible error, we hereby affirm the Final Judgment and Sentence imposed by order of the Grant Circuit Court dated March 26, 2008, but entered July 25, 2008, against Robert B. Taylor for criminal facilitation to commit burglary in the first degree.

ALL CONCUR.

LAMBERT, JUDGE: