SULLIVAN (JANIE) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: DECEMBER 4, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000752-MR
JANIE SULLIVAN
v.
APPELLANT
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE DAVID A. TAPP, JUDGE
ACTION NOS. 07-CR-00222 AND 07-CR-00379
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: FORMTEXT LAMBERT AND TAYLOR, JUDGES; HENRY,
SENIOR JUDGE.
TAYLOR, JUDGE: Janie Sullivan brings this appeal from a March 11, 2008,
judgment of the Pulaski Circuit Court sentencing her to fifteen-years’ in prison.
This appeal involves unique circumstances where Sullivan, after entering into a
plea agreement with the Commonwealth, committed additional criminal acts prior
to her sentencing. The issue looks to the effect of Sullivan’s actions upon her final
sentence. For the reasons stated, we affirm.
On August 23, 2007, Sullivan was indicted by a Pulaski County
Grand Jury upon the offenses of complicity to commit criminal possession of a
forged instrument in the second degree and promoting contraband in the first
degree (07-CR-00222). At Sullivan’s arraignment, the Commonwealth agreed to
Sullivan being released on an ROR (release on own recognizance) bond. The
circuit court released Sullivan on the bond.
On October 25, 2007, the court ordered a routine drug test of Sullivan.
Sullivan tested positive for methamphetamine and for amphetamine. Sullivan was
retested on October 30, 2007. Sullivan again tested positive for methamphetamine.
The test also revealed that Sullivan had diluted her urine specimen. Sullivan was
tested a third time and, once again, tested positive for amphetamine. By order
entered November 9, 2007, the circuit court found that Sullivan violated the
conditions of the bond by using controlled substances and revoked Sullivan’s
bond.
On December 21, 2007, Sullivan was indicted by a Pulaski County
Grand Jury upon the additional offenses of wanton endangerment in the first
degree, fleeing or evading in the first degree, and with being a persistent felony
offender (PFO) in the first degree (07-CR-00379).
Thereafter, the Commonwealth and Sullivan reached a plea agreement
as to both actions (07-CR-00222 and 07-CR-00379). Pursuant to the plea
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agreement, on January 3, 2008, Sullivan entered a guilty plea to possession of a
forged instrument, promoting contraband, wanton endangerment and fleeing or
evading. Sullivan was again released on an ROR bond pending final sentencing.
On January 7, 2008, the Commonwealth filed a motion to revoke
Sullivan’s bond and attached thereto a police report wherein an arrestee stated that
he witnessed Sullivan purchase and smoke methamphetamine the previous day.
Thereupon, the circuit court issued a bench warrant for Sullivan’s arrest. After
Sullivan’s arrest, she was again tested for drugs, which again yielded a positive
result. Apparently, she admitted to illegal drug use at sometime after entering into
the plea agreement and prior to her final sentencing hearing.
Sullivan filed motions to suppress the results of her last drug test and
her admission of illegal drug use. The court denied both motions. Sullivan then
filed a motion to enforce the plea agreement and to sentence her to ten-year’s
imprisonment probated for a period of five years. The court denied the motion.
By a March 11, 2008, judgment, the circuit court sentenced Sullivan to fifteenyear’s imprisonment. This appeal follows.
Sullivan contends that the circuit court erred by not enforcing the plea
agreement or, in the alternative, by not allowing Sullivan to withdraw her guilty
plea. Specifically, Sullivan alleges that the Commonwealth breached the plea
agreement by recommending a twenty-year sentence of imprisonment and that the
circuit court effectively rejected the plea agreement by sentencing her to fifteenyears’ imprisonment. Sullivan argues that under the plea agreement, the
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Commonwealth was bound to recommend a ten-year sentence probated for a term
of five years.
At the guilty plea colloquy on January 3, 2008, the circuit court stated
the terms of the plea agreement very clearly to Sullivan. Under the plea
agreement, Sullivan would enter a guilty plea to possession of a forged instrument
(second degree), promoting contraband (first degree), wanton endangerment (first
degree), and fleeing or evading (first degree). The Commonwealth would dismiss
the PFO charge and recommend a sentence of ten-years’ imprisonment probated
for a term of five years. However, the court plainly informed Sullivan that if she
“tested positive” while released pending sentencing, the Commonwealth would not
be bound to recommend a probated sentence but would be free to recommend the
full twenty-year sentence. The court told Sullivan that her good behavior and
abstinence from drugs were material terms of the plea agreement. Sullivan stated
she understood and agreed to these terms.
Because Sullivan used illegal drugs while released awaiting
sentencing, the Commonwealth recommended a twenty-year sentence of
imprisonment per the terms of the plea agreement. See Jones v. Com., 995 S.W.2d
363 (Ky. 1999). The Commonwealth did not breach the plea agreement by
recommending a twenty-year sentence of imprisonment; rather, the
Commonwealth abided by the terms of the agreement in so doing. And, the circuit
court did not reject the plea agreement by sentencing Sullivan to fifteen-years’
imprisonment. In fact, Sullivan received a lighter sentence by the circuit court than
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possibly provided under the terms of the plea agreement. For this reason, we also
conclude that no basis exists to permit Sullivan to withdraw her guilty plea under
Kentucky Rules of Criminal Procedure (RCr) 8.10. Simply stated, the terms of the
plea agreement were followed by the Commonwealth and by the circuit court. It
was Sullivan’s own use of illegal drugs that triggered the increased sentence of
imprisonment under the plea agreement. As such, we believe Sullivan’s contention
that the plea agreement was breached to be meritless.
Sullivan next contends that the circuit court erred by denying her
motions to suppress the results of her last drug test and her admission of illegal
drug use. In support thereof, Sullivan argues that RCr 4.14 requires the court to
issue a statement of all nonfinancial conditions imposed upon a defendant for her
release upon bond in a written order. Sullivan argues that there existed no written
condition in an order requiring her to abstain from use of illegal drugs. Thus,
Sullivan asserts that abstaining from use of illegal drugs was not a condition of her
release upon bond. Consequently, her use of illegal drugs could not support the
issuance of a bench warrant. Sullivan also believes the bench warrant was invalid
because it was issued without a supporting affidavit. For these reasons, Sullivan
maintains that the circuit court erred by denying her motions to suppress.
Regardless of whether Sullivan’s use of illegal drugs violated a
written nonfinancial condition of her release upon bond, it is clear that use of
illegal drugs was prohibited under the terms of the plea agreement. When the
police obtained information indicating that Sullivan had used illegal drugs, the
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Commonwealth was certainly empowered to determine if Sullivan had done so.
This would, of course, include testing Sullivan for illegal drug use. Consequently,
we view any error harmless. See Jones v. Com., 239 S.W.3d 575 (Ky. 2007).
For the foregoing reasons, the judgment of the Pulaski Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Shannon Dupree
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Stephen B. Humphress
Assistant Attorney General
Frankfort, Kentucky
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