Criminal, Home Confinement: ELMORE V. COM. (COA 9/21/2007)

ELMORE V. COM.
CRIMINAL: PLEA AGREEMENT, HOME CONFINEMENT

2006-CA-001455
PUBLISHED: VACATING AND REMANDING
PANEL: COMBS PRESIDING; ACREE, TAYLOR CONCUR
SHELBY COUNTY
DATE RENDERED: 09/21/2007

CA held that Elmore’s plea agreement in Shelby Circuit Court should be construed to require the trial court to enter the exact order of probation as that which was entered in the Jefferson Circuit Court.  Shelby Circuit Court’s later inclusion of an additional condition of confinement to home under Adult Supervision 24 hours a day – 7 days a week in its order of probation was erroneous.  Upon remand, Elmore shall be entitled to specific performance of the plea agreement at his re-sentencing or to the withdrawal of his original guilty plea pursuant to RCr 8.10.  If he elects specific performance, the court shall re-sentence Elmore according to the terms of the plea agreement as resolved in this opinion.

Kentucky has no clear rule as to which party should benefit from an ambiguity where a plea agreement is involved. However, our courts have long adhered to the rule contra proferentem in construing contracts; i.e., “when a contract is susceptible of two meanings, it will be construed strongest against the party who drafted and prepared it.”  The overwhelming sentiment among Kentucky’s sister states is that any ambiguity in such an agreement should be resolved in favor of the defendant and against the government.

Digested by Scott C. Byrd

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