Layw Thomas, a youthful offender, appeals to us as a matter of right1

from the circuit court’s judgment sentencing him to prison for life plus fifty

years. At sentencing, the trial court found Thomas ineligible for consideration

for probation, presumably because Thomas, who was nineteen years old when

he pleaded guilty, stood convicted of serious crimes that would place him in the

violent offender category and render him ineligible for probation. Thomas

raises several issues in this appeal of which we find no merit. But we do find

merit in a single issue and hold that the violent offender statute is inapplicable

to youthful offenders for the purposes of the trial court’s consideration of

probation, even if the youthful offender has reached the age of majority at the



1 Ky. Const. § 110(2)(b).

3

time of sentencing. Consequently, the judgment is vacated, and the case

returned to the trial court for resentencing consistent with this opinion.

I. BACKGROUND AND PROCEDURAL HISTORY

A. Proceedings leading to the first judgment that was set aside by the

Court of Appeals.

For crimes committed when he was seventeen years old, Thomas’s

charges were brought to the juvenile session of the district court, which

transferred the charges to circuit court for Thomas’s prosecution as a youthful

offender under the provisions of KRS2 635.020(4). The charges wound up in

two separate indictments in circuit court, and, by the time Thomas resolved the

charges by entering guilty pleas under agreements with the Commonwealth, he

was a nineteen-year-old adult.

In one indictment, in which he was represented by Eric Bearden, Thomas

pleaded guilty to first-degree robbery, first-degree assault, second-degree

assault, and wanton endangerment in exchange for a recommended twelveyear sentence. In the other indictment, in which Thomas was represented by

William Aldred, Thomas entered an Alford plea3 to murder for a recommended

sentence of twenty years. This last plea agreement provided that the sentence

would run concurrently with the sentence in the first-mentioned indictment. In

short, the Commonwealth agreed to recommend all sentences to run

concurrently for a total of twenty years’ imprisonment.



2 Kentucky Revised Statutes.

3 North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

4

Both plea agreements included a “hammer clause,”4 which stated the

following: “Failure to appear at sentencing shall result in the Commonwealth

moving to modify the sentence to the maximum sentence on all charge(s), to

run consecutively, or to the maximum aggregate allowed by law.” Neither plea

agreement tallied the number of years a maximum prison sentence might

contain.

At the plea colloquy conducted in the case involving the murder charge,

the Commonwealth recommended a twenty-year sentence, denial of probation,

and Thomas’s release to remain at home wearing an electronic tagging device.5

The trial court was also informed that Thomas was cooperating with the

Commonwealth on matters beyond the scope Thomas’s present charges. The

trial court expressed reservations about the release terms offered to Thomas

under the plea agreement but ultimately agreed.6 Thomas went on to answer



4 A hammer-clause provision is “a provision in a plea agreement which, in lieu

of bail, allows the defendant, after entry of his guilty plea, to remain out of jail pending

final sentencing. Generally, a hammer clause provides that if the defendant complies

with all the conditions of his release and appears for the sentencing hearing, the

Commonwealth will recommend a certain sentence. But, if he fails to appear as

scheduled or violates any of the conditions of his release, a specific and substantially

greater sentence will be sought.” Knox v. Commonwealth 361 S.W.3d 891, 893–94 (Ky.

2012).

5 The Commonwealth stated that it already checked to see if this arrangement

would be possible because Thomas’s mother, with whom Thomas lived, lived in

Clarksville, Tennessee, and found that the GPS tracking was possible. The prosecutor

did not ask, and the trial court did not verify, who would supervise Thomas’s release,

but the trial court directed Thomas to cooperate with the Kentucky Office of Probation

and Parole.

6 The trial court accepted the term in the plea agreement providing for Thomas’s

release pending the sentencing hearing after the Commonwealth and Thomas’s

defense attorney approached the bench and showed the trial court unidentified

papers—presumably describing Thomas’s cooperation with the Commonwealth—to

peruse. The record does not identify these papers or disclose their content.

5

all the questions asked by the judge during the Boykin7 plea colloquy. Thomas

confirmed that he understood the terms of the plea agreement, that he

understood that he would be waiving certain constitutional rights by pleading

guilty, that he was given no promises to receive a certain sentence if he pleaded

guilty, and that he was satisfied with counsel’s representation.8

The trial court accepted Thomas’s plea, finding that it was entered

willingly, freely, intelligently, and voluntarily. The court then told Thomas that

he must cooperate with Probation and Parole and come back to court for

sentencing or he would receive the maximum sentence on both charges, to run

consecutively. The trial court did not explicitly state the number of years the

maximum sentence would be if Thomas failed to appear. But it did admonish

Thomas that he had “a lot riding on this” agreement, to which Thomas replied,

“You don’t have to worry about that.” The Commonwealth also included a

verbal warning that he was not to commit any new crimes while on home

incarceration or it would move to amend the plea agreements to reflect the

maximum sentences. This condition was not contained in either written plea

agreement, but Thomas stated that he understood he was not to commit more

crimes.

The trial court entered a home incarceration order, and Thomas was

released with an electronic ankle monitor to live with his mother in Clarksville,



7 Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

8 Thomas also provided these affirmative answers when asked these same

questions by the trial court during the plea colloquy on the other indictment. The only

substantive difference for the purposes of this case is that Thomas responded “yes”

when the trial court asked him if he was satisfied with the representation provided to

him by Bearden.

6

Tennessee. Thomas later failed to appear for the final sentencing hearing. He

cut off the ankle monitor and disappeared.

When Thomas eventually came before the trial court, his pleas for

leniency were rejected and the hammer clause provisions were enforced by

imposing a life sentence with the fifty-year sentence to run consecutively. In

the judgment, the trial court specifically noted that it sentenced Thomas to

“Imprisonment because . . . the defendant is not eligible for probation.” The

trial court did not state the basis for Thomas’s ineligibility. The trial court

specifically found that the maximum sentences were imposed on account of

“defendant having failed to appear as ordered for previous sentencing hearing

in violation of the plea agreement.”9

After unsuccessful motions for post-conviction relief over the ensuing

seven years, Thomas, acting pro se, filed a motion for relief under CR10 60.02

(d), (e) and (f), arguing that the trial court had improperly imposed the hammer

clauses at sentencing. The trial court denied CR 60.02 relief without a hearing.

On appeal, the Court of Appeals found merit in Thomas’s argument that

the trial court erred in sentencing him under the hammer clauses. The Court of

Appeals reversed the trial court’s denial of CR 60.02 relief, vacated the

judgment, and remanded the case, finding that the trial court “did not exercise

its independent judgment as to the proper sentence to be imposed under the

applicable statutory law and rules of criminal procedure.” The Court of Appeals



9 The trial court arraigned Thomas on new charges of tampering with a prison

monitoring device, escape and bail jumping following the final sentencing hearing.

10 Kentucky Rules of Civil Procedure.

7

found that the trial court considered only Thomas’s violation of the plea

agreement and punished Thomas for that violation instead of imposing

punishment for the underlying crimes.11 Accordingly, the Court of Appeals held

that Thomas was entitled to have the judgment set aside under CR 60.02(f)12

because the trial court erred under the substantive rules established in

McClanahan v. Commonwealth13 and Knox v. Commonwealth14 when it did not

consider whether the sentences imposed for the underlying crimes were



11 The Court of Appeals also rejected Thomas’s argument that the trial court

imposed an illegal sentence when it ordered the fifty-year sentence run consecutively

to the life sentence, holding that a definite-term sentence may properly run

consecutively to an indefinite-term sentence when the two sentences arise from

different cases. Higgins v. Commonwealth, No. 2014-SC-000466-MR, 2016 WL 671150

(Ky. Feb. 18, 2016); Clay v. Commonwealth, No. 2009-SC-000012-MR, 2010 WL

2471862 (Ky. June 17, 2010). The Court of Appeals also rejected the Commonwealth’s

argument that Thomas’s CR 60.02 motion was procedurally improper. The Court of

Appeals found that Thomas’s case “presented circumstances of such an extraordinary

nature” necessary to invoke CR 60.02 relief even if other procedural steps were

required to be followed by Thomas before bringing the CR 60.02 action. The Court of

Appeals reasoned that Thomas was entitled to the extraordinary relief provided under

CR 60.02 for many reasons, the “[m]ost glaring is that Thomas was denied counsel in

his post-conviction proceedings[,]” despite repeated requests for assistance of counsel.

12 CR 60.02(f) provides the following: “On motion a court may, upon such terms

as are just, relieve a party or his legal representative from its final judgement, order, or

proceeding upon the following grounds: . . . or (f) any other reason of an extraordinary

nature justifying relief.”

13 308 S.W.3d 694, 702 (Ky. 2010) (reversing the sentence imposed pursuant to

the hammer clause in the plea agreement because the trial court failed to exercise

independent discretion in setting the sentence, the sentence was imposed without

giving due consideration to the presentence report, and the sentence was imposed

without consideration of “the nature and circumstances of the crime and the history,

character and condition of the defendant”).

14 361 S.W.3d at 899 (holding that a “judge’s commitment to impose a sentence

based upon a defendant’s breach of a hammer clause condition, coupled with the

imposition of that sentence without proper consideration of other relevant factors, is

an abuse of discretion”).

8

appropriate considering all of the other factors required under RCr15 11.02,16

KRS 532.050,17 and KRS 533.010(2).18

B. Proceedings leading to the judgment under review by this Court.

On remand from the Court of Appeals, the trial court denied Thomas’s

motion for recusal, finding that there was nothing in the record that showed

bias against Thomas or called into question the trial court’s objectivity or

impartiality. But the trial court held an evidentiary hearing on Thomas’s

motion to withdraw his guilty pleas and final sentencing.

During the evidentiary hearing on the motion to withdraw his guilty

pleas, Aldred and Bearden, Thomas’s attorneys in the prior prosecutions,

Rebecca DiLoreto, Director for the Institute on Compassionate Justice, and

Thomas himself testified.

Aldred testified about his conduct in representing Thomas before and

during plea negotiations, Thomas’s cooperation with law enforcement,19 and



15 Rules of Criminal Procedure.

16 RCr 11.02(1) provides, in part, that “. . .[b]efore imposing sentence the court

shall, if the defendant is guilty of a felony, cause a presentence investigation to be

conducted, examine and consider the report, and furnish a copy of the report to the

attorney for the Commonwealth and the attorney for the defendant no later than two

(2) business days prior to final sentencing….”

17 KRS 532.050(1) provides, in part, that “[n]o court shall impose a sentence for

conviction of a felony, other than a capital offense, without first ordering a presentence

investigation after conviction and giving due consideration to a written report of the

investigation . . . .”

18 As this Court explained in Knox, 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: [one of the conditions provided in (a-c) applies in the

particular case]”. 361 S.W.3d at 896 (quoting KRS 533.010(2)).

19 Aldred testified that he was reluctant to go into detail about the negotiations

involving Thomas’s cooperation with law enforcement because of the risk to Thomas.

9

his discussion of the hammer clauses with Thomas before signing the

agreements.

Aldred, Thomas’s retained counsel in the second indictment, testified

that before negotiating the challenged plea, he conducted standard discovery,

received all the evidence from the Commonwealth, visited the murder scene

where he interviewed witnesses, and met with Thomas roughly fifteen times.

Aldred stated that he did not collect Thomas’s mental health or school records.

Based on his investigation and review, Aldred concluded that Thomas could

not succeed at trial. He began plea negotiations with the Commonwealth that

included an offer to cooperate in other criminal investigations.20 Aldred did not

remember verbatim his discussions with Thomas about the terms of the plea

agreement, but he met with Thomas three to five times to discuss the plea

agreement and Thomas’s cooperation with police. Aldred admitted that

Thomas met with the prosecutor and police without him and that it was

Thomas who informed Aldred that the Commonwealth might allow him to be

released to go home before final sentencing.

As for the discussion with Thomas about the hammer clauses, Aldred

testified that these clauses are common in plea agreements in the jurisdiction

where Thomas was prosecuted. Before Thomas accepted the plea bargain,

Aldred explained to Thomas and his mother the nature of the hammer clause,



The attorney further remarked that when he first heard that Thomas had cut his ankle

monitor off and fled, the attorney feared that the “bad guys had gotten him.”

20 It appears from statements in the record that Thomas received favorable

terms in exchange for his cooperation with law enforcement. But the record does not

disclose the nature or extent of Thomas’s cooperation.

10

including the potential consequences of violating it. Alfred also testified that he

emphasized to Thomas that he was getting a favorable sentencing

recommendation considering the gravity of the underlying charges and that if

he failed to appear for sentencing or violated any other term of the agreement,

he could go to prison for life. Aldred further testified that despite his youth,

Thomas understood the plea agreements and the consequences of breaching

their terms, and that Thomas could enter a knowing, intelligent, and voluntary

plea.

Bearden, Thomas’s appointed counsel in the first indictment, testified

regarding his representation of Thomas before he entered the first guilty plea.

The extent of Bearden’s participation in the case is unclear, specifically in

negotiating the plea agreements, but Aldred took the lead in representing

Thomas during the plea negotiations. Bearden testified that he did not actively

participate in the case after Thomas’s family hired Aldred to represent Thomas

in the murder case. Bearden did not meet with Thomas often, did not

remember ever meeting with Thomas while he was held in juvenile detention,

and did not remember participating in the plea negotiations. Like Aldred,

Bearden confirmed that hammer clauses were standard in local plea

agreements. Bearden also testified that he did not remember specifically

discussing the plea agreement with Thomas but stated that it was his practice

to go over the terms of any plea agreement offered to his clients. Finally,

Bearden testified that he did not remember Thomas making any statements

that suggested a lack of understanding of the plea agreements.

11

DiLoreto described the process she has routinely undertaken when

representing juveniles. Although she admitted that she never met Thomas and

was not involved in negotiating the plea agreements, DiLoreto flatly stated that

she would not have allowed Thomas to commit to the hammer-clause

provisions. She based that statement on information she gleaned from her

review of Thomas’s school and medical records, which disclosed that Thomas

had a demonstrated history of problems with impulsivity and resistance to

authority. DiLoreto testified that, had she represented Thomas pre-trial, she

would have had a more in-depth discussion with him about his goals beyond

simply being released from jail before sentencing because she did not believe

Thomas could succeed on release under the circumstances as they existed at

the time of negotiations.

Finally, Thomas testified on his own behalf about Bearden’s and Aldred’s

representation during plea negotiations. Thomas stated that Bearden did not

discuss the plea agreement with him before the guilty-plea proceeding. Instead,

Bearden brought the plea agreement to Thomas on the day of the scheduled

court date and Thomas signed it without discussion. Regarding Aldred’s

representation, Thomas stated that while he had discussed his desire to go

home and the possibility of a plea agreement with Aldred a couple of times

before signing the agreement, Aldred only discussed the specific agreement

regarding home incarceration for about five minutes before Thomas “appeared

at the podium.” According to Thomas, Aldred did not review each term of the

plea agreement with him, and neither Aldred nor Bearden discussed the

possible consequences of failure to appear for sentencing. Thomas

12

acknowledged that the trial court did inform him of the consequences of

pleading guilty and the effect of the hammer clauses, recalling the trial court’s

warning that he would receive the maximum sentence if he did not appear for

sentencing. Thomas testified that he did not understand the magnitude of what

he was agreeing to when he signed the plea agreements, and he described the

struggles he faced in his personal life that caused him to flee.21

At the close of the evidentiary hearing, the trial court denied Thomas’s

motion to withdraw his guilty pleas. The trial court articulated the standard for

withdrawing a guilty plea from Edmonds v. Commonwealth22 and found that

Thomas was aware of the direct consequences at the time he entered the plea.

The trial court observed that Thomas was not a child but a savvy person who

knew what he was doing at the time he entered the plea. The trial court entered

the following order:

Having conducted a hearing and heard the arguments of counsel and

considered the case law relevant to this motion, the court finds that

the defendant’s guilty plea was entered knowingly, intelligently and

voluntarily, that his lawyers were effective and that he was aware of

the ramifications of failing to follow his release conditions. The motion

to withdraw his plea is denied.

The sentencing hearing immediately followed the denial of Thomas’s

motion to withdraw his guilty pleas. At the sentencing hearing, Thomas called

to testify on his behalf: Dr. Lawrence Steinberg, a professor of psychology



21 Most importantly, Thomas explained that he fled because his mother’s

landlord threatened to evict her if Thomas did not leave the home. While Thomas’s

mother and Aldred were attempting to make other arrangements for Thomas to move

out, Thomas cut off his ankle monitor and fled.

22 189 S.W.3d 558, 566 (Ky. 2006).

13

specializing in adolescent development; Thomas’s mother; and Brian Westover,

a family friend.

Dr. Steinberg described the lack of impulse control common in teenagers,

a characteristic that persists past the teenage years through ages twenty-two

or twenty-three. Thomas’s mother, a friend, and Thomas himself all testified

about Thomas’s character before he committed the offenses, his character now

that he is in his thirties, and about plans for Thomas’s life if he were to be

released from prison. Thomas testified again about the problems he faced on

home incarceration and about his achievements since he has been in prison,

including completing parenting, anger management, and drug rehabilitation

courses.

At the end of the sentencing hearing, the trial court found that the

original sentence imposed under the hammer clauses was the most appropriate

sentence. The trial court stated that considering all the evidence presented

during the evidentiary hearing and the final sentencing hearing, as well as the

contents of the written PSI and the nature and circumstances of Thomas’s

charges, history, character and condition, it believed that Thomas’s guilty pleas

were proper, as was the Commonwealth’s request to enforce the hammer

clause. The trial court entered the following written order:

A separate sentencing hearing having been conducted where the

defendant testified and presented testimony of other witnesses and

having heard the arguments of counsel, and considered all the statutory

requirements of sentencing, the court finds that imposition of a sentence

consistent with the original plea agreement subject to the “hammer

clause” implications is appropriate. The judgement so stating is

incorporated here by reference.

14

The trial court again imposed a life sentence and a fifty-year sentence, to

run consecutively. And as in the first judgment, the trial court ruled that it

sentenced Thomas to “imprisonment because. . . [Thomas] is not eligible for

probation.” Again, the judgment does not explain the trial court’s basis for its

determination that Thomas was ineligible for probation, and Thomas’s counsel

did not raise any question to the determination at that time.

II. ANALYSIS

Thomas raises several issues on appeal. First, he argues that the trial

court erred in denying his motion to withdraw his guilty plea. Second, he

argues that the trial court erred in denying his recusal motion. Finally, Thomas

raises several arguments in support of his assertion that, even if his guilty

pleas were voluntary, the trial court erred by imposing the challenged sentence.

The Commonwealth disputes Thomas’s first two claims of error but concedes

that the trial court erred by failing to consider probation before imposing the

sentence of imprisonment.

For the reasons explained below, we find that the trial court did not

abuse its discretion in denying Thomas’s motion to withdraw his guilty pleas

nor in denying recusal. But we agree with Thomas, as conceded by the

Commonwealth, that the trial court erred in failing to consider probation or

another form of conditional discharge in accordance with KRS 533.010 before

sentencing Thomas to imprisonment.

A. The trial court did not err by failing to allow Thomas to withdraw his

guilty pleas.

RCr 8.10 provides, in part, that “[a]t any time before judgment the court

may permit the plea of guilty or guilty but mentally ill, to be withdrawn and a

15

plea of not guilty substituted.” We have previously established that the use of

the word “may” in the statute indicates that a trial court has discretion to

determine whether to allow a defendant to withdraw a guilty plea, but this

discretion is not “unfettered.”23 To determine whether the trial court erred

when it denied Thomas’s motion to withdraw his guilty pleas, we must conduct

a two-step analysis.

First, we must determine whether the trial court erred in finding that

Thomas’s guilty pleas were voluntary.24 This determination is subject to the

clearly erroneous standard of review,25 meaning that the trial court’s ruling on

that issue stands if supported by substantial evidence.26 If there is no clear

error in finding the pleas voluntary, we must then determine if the trial court

abused its discretion by not allowing Thomas to withdraw his guilty pleas.27 A

trial court abuses its discretion when it makes a decision that is “arbitrary,

unreasonable, unfair, or unsupported by sound legal principles.”28



23 Rodriguez v. Com., 87 S.W.3d 8, 10 (Ky. 2002).

24 See id.; Bronk v. Commonwelath, 58 S.W.3d 482, 487–88 (Ky. 2001); Rigdon

v. Com., 144 S.W.3d 283, 288 (Ky. App. 2004).

25 Edmonds, 189 S.W.3d at 566; Rigdon, 144 S.W.3d at 288 (citing Bronk, 58

S.W.3d at 489 (Cooper, J. concurring)).

26 See, e.g., Edmonds, 189 S.W.3d at 566 (explaining that to determine whether

a ruling was made in clear error, the question is “whether the determination was

supported by substantial evidence”); Bronk, 58 S.W.3d. at 488 (“Our review of the

totality of the circumstances surrounding Bronk's plea finds substantial evidence that

supports the trial court's finding.”).

27 Rigdon, 144 S.W.3d at 288 (explaining that if the trial court finds that a plea

was entered voluntarily, it is within the discretion of the trial court to grant or deny a

motion to withdraw) (internal citations omitted). In contrast, if a trial court finds that a

plea was involuntary the trial court is required to grant a defendant’s motion to

withdraw. Id.

28 Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (“The test for

abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable,

16

In Edmonds v. Commonwealth, we explained that:

A guilty plea is involuntary if the defendant lacked full awareness of the

direct consequences of the plea or relied on a misrepresentation by the

Commonwealth or the trial court. . . . A guilty plea is intelligent if a

defendant is advised by competent counsel regarding the consequences

of entering a guilty plea, including the constitutional rights that are

waived thereby, is informed of the nature of the charge against him, and

is competent at the time the plea is entered.29

A presumption of voluntariness arises from a properly conducted plea

colloquy under Boykin v. Alabama,

30 but simply looking at the colloquy is not

enough to determine that a guilty plea is voluntary. Trial courts must further

consider the totality of circumstances surrounding the plea, an inherently factsensitive inquiry.31

The crux of Thomas’s claim of error on the voluntariness issue turns on

the alleged ineffectiveness of trial counsel. He adds that his pleas were not

voluntary and intelligent because the prosecutor added terms at the guilty-plea

hearing. Finally, he argues that cognitive characteristics affecting teenagers

like him distorted his appreciation of the consequences under the hammer

clauses of failing to appear for sentencing. Thomas claims that but-for these



unfair, or unsupported by sound legal principles.”); see also Rigdon, 144 S.W.3d at

288 (citing Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000)).

29 189 S.W.3d at 566 (citing Brady v. United States, 397 U.S. 742, 755–56, 90

S.Ct. 1463, 1472–73, 25 L.Ed.2d 747 (1970); Boykin, 395 U.S. at 243, 89 S.Ct. at

1712, 23 L.Ed.2d 274).

30 395 U.S. at 242–44, 89 S.Ct. at 1711–12, 23 L.Ed.2d 274 (“A plea of guilty is

more than a confession which admits that the accused did various acts; it is itself a

conviction; nothing remains but to give judgment and determine punishment. . .

‘Presuming waiver [of several federal constitutional rights that are involved when a

guilty plea is entered] from a silent record is impermissible.’”).

31 Edmonds, 189 S.W.3d at 566; Rodriguez, 87 S.W.3d at 10–11 (citing Brady,

397 U.S. at 749); Leyra v. Denno, 347 U.S. 556, 558, 74 S.Ct. 716, 717, 98 L.Ed. 948

(1954); Bronk, 58 S.W.3d. at 486).

17

circumstances, he would not have signed a plea agreement that involved a

hammer clause. We find no merit in any of these arguments.

With respect to the ineffective assistance of counsel claim, Thomas

argues specifically that his trial counsels’ performance was deficient because

they failed to: (1) investigate adequately his background before advising him to

accept the plea offers; (2) investigate adequately the underlying charges; (3)

accompany him in all negotiations with the Commonwealth; (4) satisfy their

duty to explain the terms of the plea agreement in terms he could understand;

(5) ensure that he could comply with home incarceration; (6) warn against

accepting a plea deal that contained a hammer clause; and (7) explain the

sentences that could be imposed under the hammer clause if he violated the

terms of the plea agreements.

We considered similar arguments in Bronk v. Commonwealth,

32 a case in

which Bronk was prosecuted in circuit court as a youthful offender for crimes

he committed in connection with a fire in which a firefighter was killed.33 After

Bronk failed a polygraph examination that his counsel arranged but failed to

attend, Bronk confessed to his involvement in the fire. 34 He later agreed to

plead guilty and testify against a co-defendant in exchange for a recommended

sentence of twenty-five years’ imprisonment.35 The trial court accepted Bronk’s

guilty plea, but postponed final sentencing until after the co-defendant’s trial.36



32 58 S.W.3d. 482.

33 Id. at 484.

34 Id. at 485.

35 Id.

36 Id.

18

Before the co-defendant’s trial, the trial court granted Bronk’s motion to

appoint new counsel, who in turn moved to withdraw his guilty plea based on

the assertion that he entered the plea involuntarily because his counsel

provided ineffective assistance.37 The trial court denied Bronk’s motion to

withdraw his guilty plea, and he was sentenced in accordance with the plea

agreement.38

On appeal to this Court, Bronk argued that the trial court erred in

denying his motion to withdraw his guilty plea because his first counsel’s

ineffective assistance rendered his plea involuntary.39 He claimed that his

retained counsel’s performance was deficient because, among other reasons, he

failed to conduct any independent investigation of the case and to accompany

him to the polygraph examination.40

In denying relief, this Court stated that whenever a defendant disputes

the voluntariness of a guilty plea based on claims of ineffective assistance of

counsel, trial courts must apply the following standard:

In cases where the defendant disputes his or her voluntariness, a

proper exercise of this discretion requires trial courts to consider the

totality of the circumstances surrounding the guilty plea and juxtapose

the presumption of voluntariness inherent in a proper plea colloquy

with a Strickland v. Washington[41]

inquiry into the performance of

counsel: A showing that counsel's assistance was ineffective in

enabling a defendant to intelligently weigh his legal alternatives in

deciding to plead guilty has two components: (1) that counsel made

errors so serious that counsel's performance fell outside the wide

range of professionally competent assistance; and (2) that the deficient



37 Id.

38 Id.

39 Id.

40 Id. at 486.

41 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

19

performance so seriously affected the outcome of the plea process that,

but for the errors of counsel, there is a reasonable probability that the

defendant would not have pleaded guilty, but would have insisted on

going to trial. Evaluating the totality of the circumstances

surrounding the guilty plea is an inherently factual inquiry which

requires consideration of the accused's demeanor, background and

experience, and whether the record reveals that the plea was

voluntarily made.42

In applying the standard above, this Court found in Bronk that the trial

court did not abuse its discretion when it found that, despite acknowledged

errors made by counsel, Bronk’s plea was voluntary.43 The Court found that

there was substantial evidence to support the trial court’s finding given that,

among other things, the trial court relied on the testimony of the original judge

that, despite his awareness of Bronk’s retained counsel’s deficiencies, he still

believed that Bronk’s plea was voluntarily entered, Bronk was an adult at the

time he pleaded guilty, Bronk appeared to be “articulate and to have an aboveaverage comprehension of the proceedings,” and Bronk was given an

opportunity during the plea colloquy to retract his plea and inform the court

that he was dissatisfied with his retained counsel.44 Furthermore, the Court

emphasized that Bronk faced life in prison and the plea agreement involved a

more lenient sentence and earlier parole-eligibility date.45

Like the defendant in Bronk, Thomas was transferred to circuit court to

be tried as a youthful offender but entered the guilty pleas after he reached the

age of majority. Thomas also points to failures by his trial counsel like defense



42 Bronk, 58 S.W.3d. at 486–87.

43 Id. at 487–88.

44 Id.

45 Id. at 488.

20

counsel’s alleged failures in Bronk. Thomas claims that: Bearden’s conduct was

deficient because he failed to represent him during plea negotiations and to

appear to represent him during the original sentencing hearing; Aldred’s

conduct was deficient because he failed to accompany Thomas to all plea

negotiations with the Commonwealth;46 and both Bearden and Aldred failed to

adequately investigate Thomas’s background and the circumstances

surrounding the underlying charge.47

Thomas also raised claims of deficient representation by counsel that are

novel in comparison to the claims made in Bronk. Thomas claims that his

attorneys had a duty to communicate with him in a different way than they

would with adult offenders because he was proceeding in the case as a

youthful offender, was only nineteen at the time his accepted the plea bargains

and had ADHD and a documented history of conflict with authority. Thomas

further argues that these same characteristics required his trial counsel not

only to ensure that he had adequate guidance while on home incarceration

but, more importantly, to refrain from advising Thomas to accept a plea

bargain that involved a hammer clause. In support of these arguments,

Thomas relies on DiLoreto’s testimony48 and on the Supreme Court’s decisions



46 Bronk claimed that his trial counsel was ineffective because he failed to

accompany Bronk when he went to take a polygraph examination at the police

department. Bronk, 58 S.W.3d. at 486.

47 Bronk also claimed that his trial counsel “failed to interview witnesses or

otherwise investigate the case. . . .[and] to review with Bronk the discovery materials

provided by the Commonwealth.” Id.

48 Specifically, DiLoreto’s testimony regarding how the law applies differently to

juveniles based on the brain science on juvenile cognitive development, and regarding

how Supreme Court Rules (SCR) 3.130(1.4) and 3.10(1.4) apply to require attorneys to

21

in Roper v. Simmons,

49 Graham v. Florida,50 Miller v. Alabama,

51 and

Montgomery v. Louisiana.52

Thomas argues that Diloretto’s testimony and the decisions in Roper and

the cases following it indicate that the law requires youths to be treated

differently in some circumstances to comport with the Eighth53 and

Fourteenth54 Amendments of the United States Constitution. We disagree with

Thomas that this is one of those cases. Here, based on the totality of the

circumstances surrounding Thomas’s guilty pleas, we find that Thomas’s case

is more akin to Bronk and supports the trial court’s finding that Thomas’s

pleas were voluntarily entered. We acknowledge that, at the very least,

Bearden’s apparently lackadaisical approach may have fallen “outside the wide

range of professionally competent assistance.”55 We further acknowledge that



communicate with client’s in different way when the client suffers from “diminished

capacity,” including that of which is due to age.

49 543 U.S. 551, 578, 125 S.Ct. 1183, 1200, 161 L.Ed.2d 1 (2005) (ruling that

imposing the death penalty on offenders who are convicted of crimes committed when

they were under the age of eighteen is unconstitutional under the Eighth and

Fourteenth Amendments).

50 560 U.S. 48, 82, 130 S.Ct. 2011, 2034, 176 L.Ed.2d 825 (2010) (ruling that

the Eighth and Fourteenth Amendments prohibit the sentence of life without the

possibility of parole for juvenile offenders who did not commit homicide).

51 567 U.S. 460, 479, 132 S.Ct. 2455, 2469, 183 L.Ed.2d 407 (2012) (ruling

that the Eighth and Fourteenth Amendments prohibits any sentencing scheme that

mandates life without the possibility of parole on any juvenile offender).

52 136 S.Ct. 718, 736 193 L.Ed.2d 599 (2016) (holding that Miller is retroactive).

53 U.S. CONST. amend. VIII (“Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments inflicted.”).

54 U.S. CONST. amend. XIV (“No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal protection of the laws”).

55 Id.

22

Thomas alleges additional instances of ineffective assistance of counsel that are

different than the claims presented in Bronk. But we cannot say, even taken

together, that Bearden’s and Aldred’s performance “so seriously affected the

outcome of the plea process that, but for the[se] errors . . . there is a

reasonable probability” that Thomas would not have pleaded guilty but instead

insisted on going to trial.56

Thomas was not a juvenile when he entered these guilty pleas. Bearden

and Aldred both testified that Thomas seemed like an intelligent man, and that

he never did or said anything that indicated that he could not fully understand

the terms of the plea agreements. Aldred took the lead in representing Thomas

in the plea negotiations for both indictments, which resulted in a potentially

lenient disposition for Thomas in both cases. Thomas was competent enough to

negotiate, alone, with the Commonwealth in a way that convinced the

prosecutor to agree to allow him to return to his mother’s home in Clarksville,

Tennessee, before final sentencing while still recommending a total sentence of

twenty years. And while it is disputed that Thomas was explicitly told that if he

did not appear for sentencing the hammer-clause provisions in the plea

agreements could cause him to be sentenced to life plus 50 years, Aldred

testified that he emphasized the hammer-clause provision to Thomas before he

entered the plea and explained that it was crucial that Thomas show up for

sentencing. Even if Thomas did not know he could receive a life sentence plus

fifty years, he knew that he received a very favorable recommendation from the



56 Bronk, 58 S.W.3d. at 486–87.

23

Commonwealth and he knew that if he did not follow the terms of both the

written agreement and those explained to him orally during the guilty-plea

hearing, that he could receive a life sentence.

Thomas also argues that even if his guilty plea were voluntarily entered,

the trial court still abused its discretion by denying his motion to withdraw the

pleas based on: the disparity between the sentence offered in exchange for the

pleas and the sentence actually imposed; the ineffective assistance of counsel

in failing to investigate his case and advise him of the consequences of violating

the plea agreement; and the ultimate imposition of a “grossly unfair sentence,”

especially considering the “great benefit” Thomas provided through his

cooperation with the Commonwealth and law enforcement.57

As stated above, a trial court abuses its discretion when it renders a

decision that is “arbitrary, unreasonable, unfair, or unsupported by sound

legal principles.”58 These arguments are essentially the same as the arguments

addressing the voluntariness issue, and we reject them for the same reasons.59

Accordingly, we find that the trial court did not abuse its discretion by denying

Thomas’s motion to withdraw his guilty pleas.



57 The record does not reflect the extent of Thomas’s cooperation with law

enforcement and the Commonwealth.

58 English, 993 S.W.2d at 945; see also Rigdon, 144 S.W.3d at 288.

59 See Bronk, 58 S.W.3d. at 486–87; see also Simpson v. Commonwealth, No.

2007-SC-000623-MR, 2009 WL 735878 *1, *6–*7 (Ky. Mar. 19, 2009) (rejecting

defendant’s argument that the court abused its discretion in denying his motion to

withdraw his voluntary guilty plea).

24

B. The trial court did not err in denying Thomas’s motion asking the

judge to recuse.

Thomas further argues that the trial court erred by denying his motion

for recusal. Thomas asserts that considering the Court of Appeals’ holding that

the trial court erroneously imposed the first sentence based solely on the

hammer clause instead of considering all the factors required by law, the same

trial court “could not preside over the resentencing without letting that bias

affect its decisions or appearing to be partial to the hammer clause sentence.”

In support of this argument, Thomas relies primarily on the trial court’s

earlier judgment and its pointed statements made to Thomas and Thomas’s

mother from the bench. Thomas cites to SCR 4.300 Canon 3E(1)(a) of the

Judicial Code of Ethics, KRS 26A.015, and supporting case law for rules

governing recusal. In response, the Commonwealth argues that relying on an

adverse ruling in prior proceedings is not enough to satisfy the “onerous”

burden of proof required for recusal of a trial judge and that the record

discloses no bias against Thomas. We agree with the Commonwealth that

Thomas did not satisfy his burden of showing that the trial court should have

recused and find no abuse of discretion in the trial court’s denial of that motion

to recuse.

Supreme Court Rule (SCR) 4.300, Canon 3E of the Judicial Code of

Conduct, provides that “[a] judge shall disqualify himself or herself in a

proceeding in which the judge's impartiality might reasonably be questioned,

including but not limited to instances [where] the judge has a personal bias or

prejudice concerning a party or a party's lawyer, or personal knowledge of

disputed evidentiary facts concerning the proceeding[.]” “The burden of proof

25

required for recusal of a trial judge is an onerous one. There must be a showing

of facts ‘of a character calculated seriously to impair the judge's impartiality

and sway his judgment.’”60 A court’s denial of a motion for recusal is reviewed

for abuse of discretion, which again is defined as “‘whether the trial judge’s

decision was arbitrary, unreasonable, unfair, or unsupported by sound legal

principles.’”61

In Minks v. Commonwealth, this Court upheld a trial court’s denial of the

defendant’s recusal motion, which he filed before a hearing on his motion to

suppress evidence obtained upon execution of a search warrant signed by the

same judge.62 And in Dunlap v. Commonwealth, this Court upheld the trial

court’s denial of the defendant’s recusal motion despite the fact that the judge

previously presided over a custody case involving the victims of the defendant’s

crimes.63 In Dunlap, the Court distinguished the circumstances in that case

from those present in Sommers v Commonwealth,

64 a case in which this Court

held that a judge should have recused himself from a murder case in which he

had previously presided over the guardianship case that placed the murder

victims in the custody of the defendant, and the judge had accessed media

outlets to defend his custody decision after the murders were committed.65



60 Dunlap v. Commonwealth, 435 S.W.3d 537, 590 (Ky. 2013) (quoting Stopher v.

Commonwealth, 57 S.W.3d 787, 794 (Ky. 2001)).

61 Id. at 587 (quoting English, 993 S.W.2d at 945).

62 427 S.W.3d 802, 806 (Ky. 2014).

63 Dunlap, 435 S.W.3d at 590.

64 843 S.W.2d 879 (Ky. 1992).

65 Dunlap, 435 S.W.3d at 591.

26

We agree with Thomas that the trial court’s on-the-record statements

that were directed at Thomas’s mother reflected the trial court’s irritation over

Thomas’s failure to appear for final sentencing. But it is clear from the

authorities cited above that this Court has been reluctant to disqualify a judge

unless the judge’s conduct is egregious, or the claims of impartiality or bias are

based on more than an adverse ruling. We disagree that the trial court’s angry

words or previous sentencing decision were evidence that the judge was

incapable of presiding fairly and impartially in the present matter. And we

reject Thomas’s argument that the trial court’s failure to embrace his

arguments in mitigation of punishment raises legitimate concern over the trial

court’s lack of impartiality. A trial court is not required to impose a more

lenient sentence simply because evidence is presented that could justify

mitigation.66 The trial court is only required to give due consideration to such

mitigating evidence.

C. The trial court erred in sentencing Thomas, a youthful offender,

without first considering probation or another form of conditional

discharge as a sentencing option.

Finally, Thomas offers four arguments in support of his assertion that,

even if his guilty pleas were voluntary, the trial court erred by denying his

request to impose the original twenty-year sentence. First, Thomas argues that

the trial court violated Kentucky’s Juvenile Code and KRS 533.010 in

determining the sentence. Second, Thomas argues that the trial court violated

KRS 532.110 in determining the sentence. Third, Thomas argues that the trial



66 Prater v. Commonwealth, 421 S.W.3d 381, 384 (Ky. 2014) (explaining that

sentencing is a discretionary function of the trial court and therefore subject to review

for abuse of discretion).

27

court ignored this Court’s holdings in Knox and McClanahan and KRS 533.010

by again imposing the hammer-clause sanction in lieu of a sentence. Finally,

Thomas argues that even if the trial court did not violate Knox and

McClanahan, considering all the mitigating evidence presented in favor of

imposing the sentence available under the original terms of the plea agreement,

the trial court still abused its discretion by imposing the maximum sentence

available under the law. Thomas also requests that this court hold that a

hammer clause that results in a maximum sentence for a youthful offender

violates state and federal constitutions.

We find merit only in Thomas’s first argument and agree that the trial

court erred by failing to follow the directives of Kentucky’s Juvenile Code by

imposing a sentence of imprisonment in violation of KRS 533.010, which

requires consideration of probation, conditional discharge, or an alternative

sentence before imposing imprisonment. It appears that the trial court and

counsel for both sides—who failed to raise the issue before the trial court—

erroneously assumed Thomas was ineligible for probation.

Thomas primarily relies on KRS 533.010, KRS 600.010(2) and

KRS 640.030 to argue that the trial court violated Kentucky’s Juvenile Code.

Specifically, Thomas argues, and the Commonwealth agrees, that the special

probation rules under KRS 635.020(4), KRS 640.040(3) and Merriman v.

Commonwealth67 required the trial court, before imposing the challenged

sentence, to determine whether probation or another form of alternative



67 265 S.W.3d 196, 198–201 (Ky. 2008).

28

sentence was appropriate for Thomas. The trial court did not consider these

alternative sentencing options because it found that “the Defendant is not

eligible for probation,” but the trial court does not state for the record its

reason for finding Thomas ineligible. And even though Thomas himself failed to

raise the issue of probation eligibility before the trial court, sentencing issues

may be raised for the first time on appeal.68

KRS 533.010(1) provides that “[a]ny person who has been convicted of a

crime and who has not been sentenced to death may be sentenced to

probation, probation with an alternative sentencing plan, or conditional

discharge as provided in this chapter.” KRS 533.010(2) provides that “[b]efore

imposition of a sentence of imprisonment, the court shall consider probation,

probation with an alternative sentencing plan, or conditional discharge. Unless

the defendant is a violent felon as defined in KRS 439.3401 or a statute

prohibits probation . . . .”69 And KRS 533.060(1) provides, in part, that “[w]hen

a person has been convicted of an offense or has entered a plea of guilty to an

offense classified as a Class A, B, or C felony and the commission of the offense

involved the use of a weapon from which a shot or projectile may be discharged



68 Jones v. Commonwealth, 382 S.W.3d 22, 27 (Ky. 2011) (explaining that the

statement made in Cummings v. Commonwealth, 226 S.W.3d 62, 66 (Ky. 2007), that

sentencing is jurisdictional was “simply [] a manifestation of the non-controversial

precept that an appellate court is not bound to affirm an illegal sentence just because

the issue of the illegality was not presented to the trial court); Hughes v.

Commonwealth, 875 S.W.2d 99, 100 (Ky. 1994) (finding that it could still consider

appellant’s argument that the trial court was required to consider appellant’s request

for probation under KRS 533.010 before sentencing him pursuant to his unconditional

plea agreement even though the appellant did not raise this argument before the trial

court because “all defendants have the right to be sentenced after due consideration of

all applicable law[]”) (citations omitted).

69 (emphasis added).

29

that is readily capable of producing death or other serious physical injury, the

person shall not be eligible for probation . . . .”

These statutes establish that a trial court must consider probation for an

adult defendant before imposing a sentence of imprisonment unless: (1) the

defendant has been sentenced to death;70 (2) the crime of which the defendant

stands convicted falls within one of the categories outlined in KRS 533.060; or

(3) the defendant is considered a violent offender as defined in KRS 439.3401.71

But this standard is different when the defendant being sentenced committed

the underlying crimes before he or she reached the age of majority and was

transferred to circuit court to be prosecuted as a youthful offender.72

The crimes for which Thomas entered pleas would certainly render him

ineligible for probation consideration by operation of either KRS 533.060(1) or

KRS 533.010(2) if the crimes had been committed after he reached the age of



70 KRS 533.010(1) (“Any person who has been convicted of a crime and who has

not been sentenced to death may be sentenced to probation. . .”).

71 KRS 533.010(2). KRS 439.3401 defines a “violent offender” as, among other

things, “any person who has been convicted of or pled guilty to the commission of: (a)

A capital offense; (b) A Class A felony;(c) A Class B felony involving the death of the

victim or serious physical injury to a victim. . . .”

72 KRS 635.020(4) provides that “[a]ny other provision of KRS Chapters 610 to

645 to the contrary notwithstanding, if a child charged with a felony in which a

firearm, whether functional or not, was used in the commission of the offense had

attained the age of fourteen (14) years at the time of the commission of the alleged

offense, he shall be transferred to the Circuit Court for trial as an adult if, following a

preliminary hearing, the District Court finds probable cause to believe that the child

committed a felony, that a firearm was used in the commission of that felony, and that

the child was fourteen (14) years of age or older at the time of the commission of the

alleged felony. If convicted in the Circuit Court, he shall be subject to the same

penalties as an adult offender, except that until he reaches the age of eighteen (18)

years, he shall be confined in a facility or program for juveniles or for youthful

offenders, unless the provisions of KRS 635.025 apply or unless he is released

pursuant to expiration of sentence or parole, and at age eighteen (18) he shall be

returned to the sentencing Circuit Court for proceedings consistent with KRS

640.030(2).”

30

majority. But, as the parties agree, even though Thomas was transferred to the

circuit court to be tried as an adult under KRS 635.020, he was still entitled to

the protections provided for youthful offenders under Kentucky’s Juvenile

Code.73 With respect to KRS 533.060, Kentucky’s Juvenile Code explicitly

states that the probation limitations contained in KRS 533.060(1) are

inapplicable to youthful offenders like Thomas.74 With respect to KRS

533.010(2), while none of the provisions of Kentucky’s Juvenile Code explicitly

states that KRS 533.010(2) is inapplicable to youthful offenders, based on our

holdings in Merriman v. Commonwealth,75 Buckner v. Commonwealth,76 and

Edwards v. Harrod,

77 it is perhaps unclear whether the statute is applicable to

youthful offenders who are sentenced after they reach age eighteen.78



73 KRS 600.020(72) defines a “youthful offender” as “any person regardless of

age, transferred to Circuit Court under the provisions of KRS Chapter 635 or 640 and

who is subsequently convicted in Circuit Court.”

74 KRS 640.040(3) provides that “No youthful offender shall be subject to

limitations on probation, parole or conditional discharge as provided for in KRS

533.060.”

75 265 S.W.3d at 198–201.

76 No. 2006–SC–000479–MR, 2008 WL 5051578 (Ky. Nov. 26, 2008).

77 391 S.W.3d 755, 760–62 (Ky. 2013).

78 KRS 640.030 provides, in part, that “. . . any sentence imposed upon the

youthful offender shall be served in a facility or program operated or contracted by the

Department of Juvenile Justice. . . If an individual sentenced as a youthful offender

attains the age of eighteen (18) prior to the expiration of his sentence, and has not

been probated or released on parole, that individual shall be returned to the

sentencing court. At that time, the sentencing court shall make one (1) of the following

determinations: (a) Whether the youthful offender shall be placed on probation or

conditional discharge; (b) Whether the youthful offender shall be returned to the

Department of Juvenile Justice to complete a treatment program, which treatment

program shall not exceed the youthful offender's attainment of the age of eighteen (18)

years and five (5) months . . . or (c) Whether the youthful offender shall be

incarcerated in an institution operated by the Department of Corrections[.]”

31

As indicated above, Thomas argues, and the Commonwealth agrees, that

this case should be remanded for resentencing because the trial court was

required under KRS 533.010(2), Merriman, Buckner, and Edwards to consider

whether probation or another form of conditional discharge was an option for

Thomas before imposing a sentence of imprisonment. While we agree with the

parties that our decisions in Merriman, Buckner, and Edwards are relevant and

instructive, these cases did not decide the precise issue now before us: whether

the probation limitation for violent offenders contained in KRS 533.010(2)

applies to youthful offenders sentenced after they reach the age of majority? As

explained below, we now hold, consistent with our holdings in Merriman,

Buckner, and Edwards, that considering “statutory interpretation, logic, and

belief in the good sense of the legislature,”79 the violent offender statute is not

applicable to youthful offenders who are convicted or sentenced after they

reach the age of majority.

In Merriman v. Commonwealth, we held that the violent offender statute

cannot be used to render youthful offenders ineligible for probation because

the youthful-offender sentencing scheme contained in KRS 640.030

contemplates that the offenders will be brought back to court for “resentencing”

upon reaching age eighteen.80 In Merriman, two youthful offenders were

convicted of the crimes charged, committed to the Department of Juvenile

Justice in accordance with KRS 640.030(2), and thereafter brought back to the



79 Merriman, 265 S.W.3d at 201.

80 Id. at 198–201.

32

trial court for resentencing once they reached the age of majority.81 In

determining whether the violent-offender statute should have been applied to

render the respective offenders ineligible for probation at their resentencing

hearings, we reviewed relevant provisions of Kentucky’s Juvenile Code.

We explained in Merriman that Kentucky’s Juvenile Code was enacted to

provide rules for treatment of individuals who commit crimes before they reach

the age of majority and discussed multiple provisions contained in KRS

Chapter 640 that apply to youthful offenders who are transferred to the Circuit

Court to be tried as an adult.82 The Court placed emphasis on the resentencing

scheme required when a juvenile who has been tried and sentenced as an

adult:

to be housed in a juvenile detention facility until his sentence expired,

he was probated or paroled, or he reached his 18th birthday. If the

juvenile turned 18 before expiration, probation, or parole, then the

sentencing court had to make further adjudications, which in

common parlance came to be called “resentencing.” In fact, the length

and all other conditions of the Youthful Offender's sentence remain

the same except for whatever statutory determinations the trial court

makes at that review. The court's options at that point are to place the

Youthful Offender on probation or conditional discharge, incarcerate

him in adult prison, or return him to the Department of Juvenile

Justice to complete a treatment program of up to five months. Under

the latter option, the youthful offender again returns to the court after

completing a treatment program for it to determine whether to

probate, conditionally discharge, or incarcerate.83



81 Id. at 197–98.

82 Id. at 198–201. The Merriman court also noted that KRS Chapter 640 must

be read with the legislature’s intent in mind: “[P]romoting protection of children”; that

“[a]ny child . . . under KRS Chapters 600 to 645 . . . shall have a right to treatment

reasonably calculated to bring about an improvement in his condition”; “providing

each child a safe and nurturing home”; and that “all parties are assured prompt and

fair hearings,” plus other specific intentions.” Id. at 199 (citing KRS 600.010).

83 Id. at 198–99 (explaining KRS 640.030 (1–3)).

33

Based on the language of KRS 640.030(2), we held that the violent

offender statute “cannot act to prevent consideration of probation or

conditional discharge on the youthful offender's 18th birthday.”84

A short time after Merriman was decided, in Buckner, an unpublished

opinion, this Court relied on Merriman to find that a defendant who was

charged and convicted for crimes committed when he was seventeen years old

was not subject to the violent offender statute and held that he was entitled to

a new sentencing hearing “in accordance with KRS 640.030 and Merriman.”85

And then in Edwards we considered Merriman to determine “whether youthful

offenders who are convicted and sentenced in circuit court can also be

classified as violent offenders subject to the parole-eligibility restrictions

imposed by Kentucky's Violent Offender Statute.”86 In Edwards we found that

Merriman “does not extend to the parole limitations of the Violent Offender

Statute because of the difference between probation and parole” and because

the General Assembly explicitly intended for the violent offender statute’s

parole restrictions to apply to certain youthful offenders.87

We acknowledge that there are several factual differences between

Merriman and Thomas’s case, and that the “resentencing” scheme in KRS

640.030(2) does not apply in the same way to Thomas’s case as it did to the

defendants in Merriman. Thomas is considered a youthful offender under KRS



84 Id. at 200.

85 2008 WL 5051578 at *1, *12.

86 391 S.W.3d at 756.

87 Id. at 756, 758–60.

34

600.020(72) for the purposes of underlying charges and was transferred to the

circuit court to be tried as an adult.88 But Thomas was nineteen years old

when he entered his guilty pleas and was sentenced. Unlike the defendants in

Merriman, he was not transferred to the Department of Juvenile Justice to

await resentencing under KRS 640.030(2). This does not mean that Merriman

is inapplicable here. In fact, we ruled in Buckner that a defendant in

circumstances very similar to Thomas’s was entitled to resentencing and

probation consideration under Merriman and later cited Merriman in support of

its statement in Edwards that “[a]lthough the legislature did not intend the

probation constraints on violent offenders to apply to youthful offenders, it did

intend to subject youthful offenders to the parole restrictions of the Violent

Offender Statute.” As such, we must determine whether the violent offender

statute is applicable to youthful offenders like Thomas who were sentenced

after they reached the age of majority.

There are other subsections of KRS 640.030, as well as other provisions

of KRS Chapter 640 that were not relevant in Merriman that indicate that the

legislature intended for probation to be available as a sentencing option for

youthful offenders, even when such offenders qualify as a violent offender and

are sentenced after they reach the age of majority. Again, under KRS

640.030(2), when a youthful offender reaches the age of majority and is

returned to the trial court for resentencing, “the length and all other conditions



88 KRS 600.020(72) defines a “youthful offender” as “any person regardless of

age, transferred to Circuit Court under the provisions of KRS Chapter 635 or 640 and

who is subsequently convicted in Circuit Court.”

35

of the Youthful Offender's sentence remain the same except for whatever

statutory determinations the trial court makes at that review.” The

“determinations” available for youthful offenders who reach the age of majority

are “to place the Youthful Offender on probation or conditional discharge,

incarcerate him in adult prison, or return him to the Department of Juvenile

Justice to complete a treatment program of up to five months.” KRS 630.030(3)

provides that those youthful offenders who have “attained the age of eighteen

(18) years but less than eighteen (18) years and five (5) months prior to

sentencing” shall also be returned for resentencing when they are eighteen

years and five months old, and the trial court is again directed to make the

same “determinations,” including whether the defendant is a good candidate

for probation.89

Also, KRS 640.075(1) provides that youthful offenders who were

committed to the Department of Corrections under KRS 640.030(2)(c) may,

until age twenty-one, remain in the custody of the Department of Juvenile

Justice under some circumstances. KRS 640.075(4) then provides that the

“youthful offender whose custody has been retained under subsection (1) of

this



89 KRS 640.030(3) (explaining that the youthful offender who was sentenced

after he turned 18 “shall be returned to the sentencing court upon attaining the age of

eighteen (18) years and five (5) months if that individual has been sentenced to a

period of placement or treatment with the Department of Juvenile Justice. The court

shall have the same dispositional options as currently provided in subsection (2)(a)

and (c) of this section[]”). Again, the determinations to be made by the sentencing

court under KRS 640.030(2)(a) & (c) are “[w]hether the youthful offender shall be

placed on probation or conditional discharge[]” or “[w]hether the youthful offender

shall be incarcerated in an institution operated by the Department of Corrections[.]”

36

section . . . may, on one (1) occasion and after the completion of a minimum

twelve (12) months additional service of sentence, petition the sentencing

Circuit Court for reconsideration of probation and, except as provided in KRS

439.3401, may be considered for early parole eligibility.”

While it is true that the clear mandates of the resentencing scheme

provided under KRS 640.030 would not be frustrated to the same extent as it

would have been by an alternate holding in Merriman if this Court were to rule

that the violent offender statute does apply to youthful offenders such as

Thomas, we still think that the General Assembly intended for trial courts to

consider whether youthful offenders are viable candidates for probation even if

such individuals qualify as violent offenders.

First, as seen above, there are multiple provisions of KRS Chapter 640

that provide for trial courts that are sentencing youthful offenders to consider

probation as a sentencing option. Nowhere in the Juvenile Code does the

General Assembly place a limit on this option based on the violent offender

statute. In contrast, the General Assembly explicitly states that the limitations

provided under the violent offender statute do apply to youthful offenders’

parole eligibility. While this citation to the violent offender statute is not

determinative, it does indicate that the General Assembly was cognizant of the

potential applicability of the violent offender statute to certain provisions of the

Juvenile Code and chose not to provide that the violent offender statute applies

to youthful offenders’ probation eligibility, even after this Court’s rulings in

Merriman, Buckner, and Edwards.

37

Second, even though Thomas, because he was over the age of eighteen

years and five months at the time he was initially sentenced, was not first

committed to the Department of Juvenile Justice and then brought back for

resentencing in accordance with KRS 640.030(1) or (3), he was sentenced as a

youthful offender in the first instance. While the language of KRS 640.030(3)

does contemplate the return of a defendant for resentencing, it also directs,

without exception, for trial courts to make the same “determinations” provided

under (2)(a) & (c), including whether the defendant is a good candidate for

probation. It seems to us illogical to assume that because a youthful offender

was age eighteen years and five months, or older, and thus was not committed

to the Department of Juvenile Justice under KRS 640.030(1) or (3) in the first

instance, that he is not entitled to the same probation consideration that is

guaranteed to a youthful offender who was sentenced before he reached age

eighteen years and five months.

Finally, this holding seems to best represent the intent of the General

Assembly in enacting the Juvenile Code. KRS 600.010(2)(a) provides, in part,

that “KRS Chapters 600 to 645 shall be interpreted to effectuate the . . .

express legislative purposes[, including that] [t]he Commonwealth shall direct

its efforts to promoting protection of children[.]” Similar to the consequences of

an alternate holding discussed in the previous paragraph, it also seems to us

illogical to hold that this Court’s decision in Merriman was correctly made in

light of this purpose, but this purpose would not be equally served by entitling

those youthful offenders who are sentenced after they reach age eighteen years

and five months the same protection provided in Merriman. Also, KRS

38

600.010(2)(f) further provides that “KRS Chapter 640 shall be interpreted to

promote public safety and the concept that every child be held accountable for

his or her conduct through the use of restitution, reparation, and sanctions, in

an effort to rehabilitate delinquent youth.” We emphasize that today we merely

hold that trial courts must consider probation for youthful offenders who also

qualify as violent offenders before committing them to the Department of

Corrections. This Court’s current holding does not undermine the trial court’s

ample discretion to hold youthful offenders fully accountable for their actions

but simply provides for an additional avenue for rehabilitating delinquent

youth.

In sum, we hold that Kentucky’s Juvenile Code and this Court’s holdings

in Merriman, Buckner, and Edwards support the conclusion that the violent

offender statute is not applicable to youthful offenders for purposes of

consideration of probation, even if they are sentenced after they reach age

eighteen years and five months. Because the trial court here sentenced Thomas

to a term of imprisonment under the assumption that Thomas was ineligible

for probation, the trial court erred in failing to consider whether probation or

other forms of conditional discharge as possible alternatives. So, we are

constrained to vacate the judgment in this case and remand to the trial court

once again to resentence Thomas in accordance with this opinion.