PROPER APPLICATION OF THE HAMMER LAW IN SENTENCING

Knox v. Commonwealth (Ky., 2012)

Knox v. Commonwealth (Ky., 2012) MARCH 22, 2012 2010-SC-000816-MR.PDF

In McClanahan, the defendant triggered a hammer clause in his plea agreement by violating the conditions governing his presentence release from custody.

As a result, instead of a ten-year sentence, the trial court imposed a thirty-five-year sentence based upon the hammer clause. We reversed the sentence imposed in McClanahan for two reasons.

First, the thirty-five-year sentence exceeded the maximum sentence authorized by statute, and was therefore illegal. Id. at 702.

In addition, we determined that the trial court had failed to exercise independent discretion in setting the sentence, that it had imposed a sentence of imprisonment without giving due consideration to the contents of the presentence report as required by RCr 11.02 and KRS 532.050(1), and that it had imposed the sentence of imprisonment without considering “the nature and circumstances of the crime and the history, character and condition of the defendant” as required by KRS 533.010(2).

We reached that conclusion largely based upon the trial judge’s statements while taking the guilty plea and during the final sentencing. Upon taking the plea, the judge issued a stern warning that she would impose the hammer clause’s sentence if McClanahan failed to appear for final sentencing or otherwise violated the conditions of his release. McClanahan violated the conditions.

At final sentencing, the judge disclaimed responsibility for the sentencing decision, stating:

“I didn’t create the time [referring to the sentence] . . . Mr. McClanahan, you made the choice and I’m giving you your choice.” McClanahan, 308 S.W.3d at 703.

In reversing the sentence we stated “[b]y assuring Appellant upon acceptance of his guilty plea that should he violate the terms of his release, the full force of the hammer clause would be dropped upon him, the judge committed to the imposition of a specific sentence in a way that precluded true compliance with KRS 532.050(1), KRS 532.110(1), KRS 533.010(1) and (2), and RCr 11.02.” Id. at 704.

Here, the trial judge that took Knox’s guilty plea and later imposed the sentence made precisely the same mistake, using words nearly identical to those we saw in McClanahan.

Upon taking the plea, the judge told Knox that the hammer clause was a serious matter and that if any conditions of his release were violated, “your sentence is going to be twenty years to serve.” The judge reiterated, “The court is going to enforce the agreement if you violate [the conditions of release].”

This stated commitment to impose the hammer clause sentence upon any violation was echoed at the sentencing hearing. The judge characterized Knox’s violations as “relatively minor” and admitted that he was “troubled by the hammer clause,” and noted, “this one is quite harsh.”

However, when defense counsel requested that he consider some sentence other than the twenty-years called for in the hammer clause, the judge declined stating, “The court is most hesitant to get into the issue of negotiations on the plea agreement because … I’m not going to at this time try to decide . . . well, the amount of the hammer clause influence on the sentence that was agreed upon by the Commonwealth and the defendant in the first place, and how did it influence that at all, that sort of thing . . . I’m just reluctant to do that.” He then reminded Knox that the hammer clause was “something, Mr. Knox, you agreed to, and therefore I am going to impose it.” Without further comment, the judgment was entered.

KRS 533.010(2) directs the trial court, not only to consider “probation, probation with an alternative sentencing plan, or conditional discharge” before imposing a sentence, but to refrain from imposing a sentence of imprisonment unless, based upon “consideration of the nature and circumstances of the crime and the history, character and condition of the defendant,” the court is of the opinion that:

“imprisonment is necessary for protection of the public because: (a) There is substantial risk that during a period of probation or conditional discharge the defendant will commit another crime; (b) The defendant is in need of correctional treatment that can be provided most effectively by his commitment to a correctional institution; or (c) A disposition under this chapter will unduly depreciate the seriousness of the defendant’s crime.”

RCr 11.02 and KRS 532.050(1) requires the court to give “due consideration” to the results of the presentence investigation.

We have reviewed the record for some indication that, in fixing Knox’s sentence, the trial judge might have considered something other than the plea agreement hammer clause. We find nothing that supplements the statements made in open court at the plea colloquy or the sentencing hearing. While the final written judgment makes specific findings about Knox’s hammer clause violation, it says absolutely nothing that suggests compliance with any part of KRS 533.010(2) or that “due consideration” was given to the report of the presentence investigation. The only reference to the presentence report that was uttered at the sentencing hearing was defense counsel’s unsolicited remark that she had read the report and had no need to controvert anything in it. We therefore have no difficulty in concluding that the trial judge committed himself to enforcing the plea agreement without ever considering the content of the presentence report or “the nature and circumstances of the crime and the history, character and condition of the defendant.” Not only did he base his decision entirely upon the plea agreement, he expressly declined to consider anything else, lest he “get into the issue of negotiations on the plea agreement.”

We find it appropriate to note at this juncture: plea agreements between prosecutors and criminal defendants are a vital part in the administration of justice. They are certainly significant considerations in a judge’s sentencing decisions, and often will be the most influential factor. But a plea agreement can never be the only factor weighing into the judge’s sentencing decision. A plea agreement does not relieve the judge of the statutory directives with respect to sentencing and it does not supplant the judge’s duty to make an independent determination of the appropriate sentence

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