Hammond v. Commonwealth

569 S.W.3d 404

Joshua T. HAMMOND, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2017-SC-000629-MR

Supreme Court of Kentucky.

MARCH 14, 2019

COUNSEL FOR APPELLANT: Mark H. Woloshin, Newport, Woloshin Law Office.

COUNSEL FOR APPELLEE: Andy Be shear, Attorney General of Kentucky, Kenneth Wayne Riggs, Assistant Attorney General, Office of Criminal Appeals.

OPINION OF THE COURT BY JUSTICE HUGHES

In 2014, Joshua T. Hammond first appealed to this Court from a Franklin Circuit Court judgment sentencing him to twenty-five years for first-degree robbery, first-degree assault, reckless homicide, and tampering with evidence. Following the guilt phase of a jury trial, Hammond waived jury sentencing and entered a plea agreement with the Commonwealth as to sentencing, while reserving his right to appeal his conviction. The trial court sentenced Hammond to twenty-five years in accordance with the agreement. On Hammond’s appeal from the judgment, this Court reversed the first-degree assault conviction and remanded the case to the trial court to enter a new judgment. Hammond v. Commonwealth, 504 S.W.3d 44 (Ky. 2016). On remand, the trial court again sentenced Hammond to twenty-five years consistent with this Court’s opinion. Hammond now appeals from that second judgment, raising a new issue that could not have been included in the first appeal.

FACTS

To briefly reiterate the underlying facts, Hammond and two other men drove to Lexington to purchase drugs. After making the purchase, Hammond devised a plan to rob Charles Monroe, a Frankfort drug dealer. Hammond set up a meeting with Monroe and the four men drove to a local Wal-Mart. After Hammond and Monroe spent some time in the store, they returned to Hammond’s truck but instead of going toward Monroe’s home, Hammond drove in a different direction. When Monroe stated that they were going the wrong way, Hammond stopped the truck on the side of an interstate ramp and demanded that Monroe hand over his money and drugs. Hammond then began hitting Monroe in the head with a police baton. Monroe attempted to defend himself, but Hammond walked around to the passenger side while one of the other men held Monroe in a chokehold. Hammond continued striking Monroe on the head with the baton and searched for drugs and money, ultimately collecting $160 and some pills. Hammond pulled Monroe from the truck and left him on the side of the highway. Monroe died as a result of the assault, and the medical examiner stated the death was likely a result of an injury to Monroe’s throat, caused by the chokehold.¹

In 2014, a Franklin Circuit Court jury found Hammond guilty of first-degree robbery, first-degree assault, reckless homicide and tampering with evidence. After the guilt phase, Hammond entered into a plea agreement with the Commonwealth to avoid the jury sentencing phase, and the trial court sentenced Hammond to twenty years for first-degree robbery and twenty years for first-degree assault (to be served concurrently), and five years each for reckless homicide and tampering with evidence (to be served concurrently) for a total sentence of twenty-five years.

After entry of the judgment, Hammond appealed as a matter of right, and this Court rendered an opinion on December 15, 2016, affirming in part, reversing in part, and remanding. Hammond, 504 S.W.3d at 44. Hammond raised five issues on appeal, and this Court reversed and remanded the case solely as to the first-degree assault conviction.

In that earlier appeal, Hammond challenged his first-degree assault conviction on three different grounds. He contended that the assault charge merged into the robbery charge, that the assault charge merged into the homicide charge, and that he should have received a directed verdict on the assault charge due to insufficient evidence that he inflicted a serious physical injury on Monroe. Hammond argued that the only physical injury to Monroe serious enough to support an assault charge was the throat injury, and this Court agreed. According to the medical testimony, the head wounds Hammond inflicted on Monroe with the baton were superficial and did not cause Monroe’s death. Since the head injury could not serve as the basis for the assault charge, the only other viable injury was the throat injury. Justice Venters, writing for a unanimous Court, concluded that a "single injury which proves to be fatal cannot simultaneously serve as the injury in an underlying assault conviction and the fatal wound resulting in the death underlying the homicide conviction." Hammond, 504 S.W.3d at 52. Since Monroe ultimately died because of the throat injury, the injury should have only supported the reckless homicide charge and not the assault charge.

This Court also agreed with Hammond that the first-degree assault charge merged into the reckless homicide charge. The Court determined that "either the trial court erred by submitting to the jury a first degree assault charge based upon evidence insufficient to establish that the head wound was a ‘serious physical injury’; or, the jury was improperly permitted to find Appellant guilty of both first degree assault and reckless homicide based upon the serious injury to Monroe's throat." Id. at 53. Regardless of which specific error occurred, Hammond’s first-degree assault conviction was reversed, and the case was remanded to the trial court for re-sentencing, removing the first-degree assault conviction but leaving the other convictions intact. This Court noted that since Hammond was sentenced to twenty years on both the assault and robbery charges, the reversal of the assault conviction did not affect Hammond’s total twenty-five year sentence or parole eligibility. Id.

On October 12, 2017, the trial court conducted a re-sentencing hearing where Hammond moved to withdraw the sentencing plea agreement and to have a jury impaneled for the penalty phase. The trial court denied his motion, stating that the Kentucky Supreme Court ruling contemplated re-sentencing only to clarify that the assault conviction was set aside, and reversal of the assault conviction did not affect Hammond’s final sentence. Hammond was re-sentenced to twenty-five years, and now appeals from the trial court’s second judgment.

ANALYSIS

Hammond argues that our holding in Hammond v. Commonwealth changed the terms of his plea agreement and because of this change, he should be permitted the right to proceed with a new jury empaneled for the penalty phase. Specifically, he argues that he now faces a new set of circumstances, i.e., he was originally facing a fifty-year sentence for all his charges while the assault charge was still viable, but since the assault conviction has been reversed, the longest sentence he could have received was thirty years.

I. Hammond waived his right to jury sentencing.

After the guilt phase of trial, Hammond entered a guilty plea pursuant to a deal with the Commonwealth and waived his right to have a jury sentence him. To be valid, a guilty plea must be entered "intelligently and voluntarily." Bronk v. Commonwealth, 58 S.W.3d 482, 486 (Ky. 2001). In determining whether a plea is voluntary, trial courts make a fact-specific inquiry into the totality of the circumstances surrounding the plea. Porter v. Commonwealth, 394 S.W.3d 382, 385 (Ky. 2011). In this case, the record was not preserved. Two volumes of the trial court record are missing, and there are no video recordings of the original trial court proceedings in the appellate record. When issues arise as to the completeness of the record, parties are allowed to submit narrative statements to supplement the record.

Early v. Commonwealth, 470 S.W.3d 729, 734 (Ky. 2015) (citing Kentucky Rule of Civil Procedure (CR) 75.13 ). No narrative statements were submitted.

"It has long been held that, when the complete record is not before the appellate court, that court must assume that the omitted record supports the decision of the trial court." Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985). The record does not include a copy of the plea agreement or a recording of the trial court’s acceptance of the agreement. With no such record, and no narrative supplementation, we are left to presume that the omitted plea agreement was valid, and the trial court’s acceptance of the agreement was proper.

All defendants have the right to a jury trial in all criminal prosecutions. Kentucky Revised Statute (KRS) 29A.270(1). This is a fundamental right in our legal system, and Hammond was entitled to, and received, this right. KRS 29A.270 ; U.S. Const, amend. VI. "Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the Commonwealth." Kentucky Rule of Criminal Procedure (RCr) 9.26(1). KRS 532.055(2) requires that "[u]pon return of a verdict of guilty ... the court shall conduct a sentencing hearing before the jury, if such case was tried before a jury. In the hearing the jury will determine the punishment to be imposed within the range provided elsewhere by law."² Under Kentucky law, a "criminal defendant has a statutory right to have his sentence set by a jury." Wilson v. Commonwealth, 765 S.W.2d 22 (Ky. 1989).

By entering a plea agreement, Hammond waived his right to be sentenced by the jury. "Among the rights recognized as requiring the defendant’s personal waiver are the rights ‘to plead guilty, waive a jury ... or take an appeal.’ " Commonwealth v. Simmons, 394 S.W.3d 903, 912 (Ky. 2013) (quoting Gonzalez v. United States, 553 U.S. 242, 251, 128 S.Ct. 1765, 170 L.Ed.2d 616 (2008) ). Since there is no record of Hammond’s waiver, this Court is left to presume that Hammond was adequately apprised of his rights and voluntarily made the decision to waive his right to jury sentencing.

II. The plea agreement constituted a contract between Hammond and the Commonwealth, but there were no ambiguities.

"Generally, plea agreements in criminal cases are contracts between...