CRIMINAL: Separate hearing for sentencing required upon removal from pretrial diversion — Glen Alan Peeler v. Com. of Kentucky (COA 12/12/2008)

LAMBERT, SENIOR JUDGE: The issue presented for review is whether it was reversible error for Glenn Peeler to be sentenced to prison following his removal from the Hardin Circuit Court pretrial diversion program without a separate sentencing hearing and a new pre-sentence investigation report.

Peeler claims that the Hardin Circuit Court erred by sentencing him to prison without a separate sentencing hearing following the court’s determination that he had violated the conditions of pre-trial diversion, and also by sentencing him without an updated
PSI. The COA agreed and reversed the trial court on the view that the essence of diversion is postponed sentencing. Upon the failure of pretrial diversion, a subsequent sentencing proceeding is required as provided by law KRS 533.256(1).

If the court determines that the defendant has violated the terms and conditions of his pre-trial diversion agreement with the Commonwealth, the court must decide whether or not to void the agreement. KRS 533.256(2). If the court voids the agreement, it must notify the prosecutor and “the prosecutor shall decide whether or not to proceed on the plea of guilty in accordance with the law.” KRS 533.256(4).
From these provisions, when the court decides that a defendant has violated the conditions of diversion and voided the defendant’s agreement with the Commonwealth, the prosecutor has discretion to seek imposition of sentence pursuant to the guilty plea. The defendant has the same right to a sentencing hearing as if he or she had pled guilty without the diversion agreement. 
From the architecture of KRS 533.256(1) and (4), it is clear that separate proceedings are contemplated. There must be a hearing to determine whether the diversion agreement should be voided, and a subsequent hearing to determine what action shall be taken thereafter. The Act does not suggest that a maximum sentence shall be automatically and immediately imposed, as it was in this case.