Home Table of Contents

Appendix D Class D Felony Pretrial Diversion Protocol for the 34th Judicial Circuit--McCreary a...

Baldwin's Kentucky Revised Statutes Annotated34th Judicial Circuit - Mccreary and Whitley Circuit Courts

Baldwin's Kentucky Revised Statutes Annotated
34th Judicial Circuit - Mccreary and Whitley Circuit Courts
KY RMWC App. D
Appendix D Class D Felony Pretrial Diversion Protocol for the 34th Judicial Circuit--McCreary and Whitley County, Kentucky
Currentness
806.1 DEFINITION
Pretrial diversion is the postponement of imposition of sentence upon any person who qualifies for this program, for a period of time not to exceed five (5) years, subject to certain conditions established by the Court.
806.2 PERSONS ELIGIBLE (KRS 533.250)
A. Any person charged with a Class D felony, who has not had a felony conviction in the ten (10) years prior to commission of the current offense, or who has not been on felony probation or parole or released from felony incarceration within the ten (10) years prior to commission of the current offense, shall be eligible for pretrial diversion. (This paragraph includes persons whose current offense involves charges of multiple Class D felonies. It also includes non-Kentucky residents who would still be supervised by the Kentucky Department of Corrections.)
B. The person charged must enter a plea of guilty, or a plea pursuant to North Carolina v. Alford, before becoming eligible for pretrial diversion.
C. Persons ineligible for probation, parole or conditional discharge under KRS 532.045 shall be ineligible for this program.
D. A person convicted of a Class D felony for which early release is disallowed by statute, including KRS 189A.010(8), shall be ineligible for this program.
E. No person shall be eligible for this program more than once in any five (5 year period.
F. No person shall be eligible for pretrial diversion who has committed a sex crime as defined in KRS 17.500. (KRS 533.250).
G. Unless the court waives compliance under KRS 533.251 (2), any defendant charged with a Class D felony offense under KRS Chapter 218A and any defendant whose criminal, medical, or mental health record indicates a present need for or benefit from substance abuse must participate in a substance abuse treatment or recovery program pursuant to KRS 533.241, if space is available, as a condition precedent to entry in the pretrial diversion program.
806.3 PROCEDURE
A. After indictment in circuit court, and no later than 30 days before trial, any person eligible for the program may apply to the Circuit Court and the Commonwealth for entry of a pretrial diversion order.
B. In applying for pretrial diversion, counsel for the defendant must state, and the defendant must agree on the record, that in the event diversion is granted, any right to a speedy trial or disposition of the charge against him/her is waived.
C. The Commonwealth shall make a written recommendation to the Court in response to each application. KRS 533.250(6).
D. Before making a recommendation to the Court, the Commonwealth shall:
i. Have a criminal record check made by telephoning Pretrial Services at AOC (not local pretrial services), at 1-800-928-6381, or faxing the request to (502) 573-1669.
ii. Interview and seek input from the victim and/or victim's family and advise them of the time, date and place the motion will be heard by the Court.
iii. When diversion is recommended, the Commonwealth must make written recommendations to the Court of conditions for the pretrial diversion as well as the appropriate sentence to be imposed if the diversion agreement is unsuccessful. KRS 533.252(3). AOC Form 347, styled Motion for Pretrial Diversion of a Class D Felony, which contains the Commonwealth's recommendation and is signed by the defendant, defense attorney and the Commonwealth's Attorney, shall be used for this purpose. This diversion plan shall be submitted to the Court as part of defendant's plea agreement.
iv. The Commonwealth will be bound by its recommendation. In the event diversion is unsuccessful, the Commonwealth cannot argue for a sentence in excess of the original recommendation, nor can the Court impose a sentence greater than the recommendation without allowing the defendant the opportunity to withdraw the plea.
v. The Court cannot consider diversion without a written, favorable recommendation from the Commonwealth.
vi. The Commonwealth may withhold its recommendation pending completion of a partial presentence investigation.
807. ORDER OF PRETRIAL DIVERSION
807.1 The Court may, in its discretion, order pretrial diversion for eligible petitioners upon terms and conditions it deems appropriate. AOC Form 345, styled Order Granting Pretrial Diversion of a Class D Felony shall be used for this purpose. When a defendant who has applied for diversion enters his/her guilty plea or plea pursuant to North Carolina v. Alford, the Court shall modify its inquiry to reflect these items on the record:
A. Is your guilty plea/plea pursuant to Alford in this case part of an agreement you and your attorney have made with the Commonwealth?
B. In return for your guilty plea/plea pursuant to Alford, the Commonwealth has agreed to recommend a sentence of __________.
C. The Commonwealth has also recommended your case be diverted on the following conditions: ____________________ __________.
D. The Commonwealth has tendered to the Court a diversion agreement. Have you read the diversion agreement? Have you discussed it with counsel? Has your attorney answered any questions you have about the diversion agreement?
E. Have you signed the diversion agreement?
F. Did you voluntarily sign the agreement?
G. Do you understand that if you successfully complete the diversion agreement, the charge(s) against you will be dismissed?
H. Do you understand that if the Commonwealth alleges you have failed to comply with the terms of the diversion agreement, the Court will schedule a hearing and, upon completion of the hearing, make a finding as to whether you failed to comply with the diversion agreement?
I. Do you understand that if the Court finds you have violated the diversion agreement, the Court will schedule a sentencing hearing and at that hearing, the Court may sentence you to the penalty recommended by the Commonwealth?
807.2 The Order of Diversion shall include the following:
A. Restitution, if applicable. (This is mandatory pursuant to KRS 533.254 where victim has suffered monetary damage.)
B. Whether the diversion shall be supervised or unsupervised. If supervised, a monthly supervision fee of not less than $10.00 nor more than $25.00 shall be imposed on the divertee, unless the fee is waived by the court in the case of indigency KRS 533.250(7).
C. Duration of the diversion.
D. Requirement that defendant obeys all rules and regulations imposed by Probation and Parole.
E. As required by KRS 533.030(1), that the defendant shall not commit any offense during the period of the pretrial diversion. Defendant shall also comply with the directions of the Probation and Parole Officer (and any other provision of KRS 533.030 or any other condition the Court deems appropriate).
F. The Order of Diversion shall also include the following:
i. Defendant shall remain drug and alcohol free and be subject to random testing.
ii. Defendant shall possess neither firearm nor any other deadly weapon.
807.3 The duration of the pretrial diversion shall not exceed five (5) years without the agreement of the defendant. Duration of the diversion agreement shall not be less than the time required to make restitution in full.
A. The Court shall advise the parties as to whether it will accept the diversion agreement. If it is accepted, a specific finding shall be made on the record that the defendant entered the plea and entered into the diversion agreement voluntarily, freely, intelligently and understandingly.
B. If the plea agreement and the diversion agreement are rejected, the Court shall notify the parties and advise the defendant he/she has the option of withdrawing the plea and proceeding to trial, OR maintaining the plea with the knowledge the Court will not order diversion but instead will impose a sentence within the penalty range permitted by law.
C. After questioning the defendant on the record, if the Court is uncertain as to whether it will accept the agreement without the benefit of a PSI, a partial PSI shall be requested. If a partial PSI is requested, the Court shall assign the case for a later date, review the partial PSI, and announce the decision either accepting or rejecting the guilty plea and the diversion agreement.
807.4 VOIDING A DIVERSION ORDER (KRS 533.256)
A. The Commonwealth may apply in writing to the Court for a hearing to determine whether the pretrial diversion agreement should be violated. The application must contain notice of the grounds for voiding the agreement. KRS 533.256(1) and 533.050(2). After the hearing, the Court may void a person's participation in pretrial diversion upon a showing of failure to comply with the conditions of diversion or a failure to make satisfactory progress. AOC Form 346, styled Order Voiding Pretrial Diversion Of A Class D Felony, shall be used for this purpose.
B. If an order of pretrial diversion is voided, the prosecutor shall decide whether or not to proceed on the guilty plea. KRS 533.256(4). If the prosecutor proceeds on the guilty plea, the defendant shall be sentenced according to law, based on his or her prior plea of guilt/plea pursuant to North Carolina v. Alford. If revocation is ordered, a full PSI shall be ordered and a sentencing hearing shall be scheduled.
C. Under KRS 533.256(2), the same criteria applicable to a probation revocation hearing shall apply to a proceeding to void an order granting diversion. Pursuant to KRE 1101(d)(5), the Rules of Evidence are inapplicable in miscellaneous proceedings such as those revoking probation. A proceeding to determine whether an order granting diversion should be voided also constitutes a miscellaneous proceeding and therefore Rules of Evidence are inapplicable to such hearings.
807.5 COMPLETION OF DIVERSION PROGRAM
If the defendant successfully completes the provisions of the pretrial diversion agreement, the charges against the defendant shall be dismissed-diverted and the matter shall be treated as required by KRS 533.258. Defendant should be informed from the beginning that successful completion of a diversion contract does not result in automatic expungement of a criminal charge under KRS 431.076.

Credits

HISTORY: Adopted effective August 4, 2017.
McCreary and Whitley Circuit Court App. D, KY R MCCREARY WHITLEY CIR CT App. D
Current with amendments received through November 15, 2023. Some rules may be more current, see credits for details.
End of Document