Commonwealth v. Derringer
386 S.W.3d 123
| Ky. | 2012Background
- Commonwealth certified a question on whether a conviction for which a defendant is on felony pretrial diversion can qualify as a basis for a second-degree persistent felony offender (PFO 2) if the defendant commits a later felony.
- Court held that such diverted convictions cannot support a PFO 2 charge unless a sentence for the prior felony has actually been imposed at the time of the later offense.
- A PFO status is judged in the penalty phase after the underlying conviction; once established, it enhances punishment for subsequent felonies.
- Pretrial diversion interrupts prosecution and can avoid a conviction if completed; if diversion is successful, charges are dismissed-diverted and no conviction exists.
- A sentence on a diverted felony is only imposed if diversion is revoked and a sentencing hearing occurs; diversion itself does not impose a sentence.
- In Derringer’s case, on diversion when indicted for later offenses, the court concluded the prior diverted felony cannot form the basis for a PFO 2 because no sentence had been imposed at that time.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can a conviction while on pretrial diversion form the basis of a PFO 2? | Commonwealth: focus is on the prior conviction, not the sentence. | Derringer: without a sentence imposed, the prior conviction cannot support PFO 2. | No; diversion prevents a sentence from being imposed until revocation. |
| Does pretrial diversion itself constitute imposition of a sentence? | Commonwealth contends diversion imposes a sentence for the prior felony. | Derringer: diversion is an interruption, not a sentence. | Diversion does not impose a sentence; only revocation and sentencing do. |
| Must a prior felony sentence be imposed before the later crime to trigger PFO 2? | Commonwealth argues the sentence imposition requirement is satisfied by the prior conviction itself. | Derringer: sentence must be imposed; status as convicted felon before later crime is insufficient. | Yes; a sentence must be imposed prior to the later offense. |
| Can the Commonwealth revoke diversion and then charge PFO 2 after imposing a sentence? | Commonwealth could argue revocation and sentencing could retroactively satisfy PFO 2. | Derringer: not applicable if sentence not imposed at time of later crime. | No; if diversion is ongoing at the time of the later crime, PFO 2 cannot attach. |
| What is the controlling time for the imposition of a prior felony sentence in relation to the later crime? | Commonwealth urges focus on prior conviction status. | Derringer: sentencing occurs only after diversion is revoked. | The sentence must be imposed at the time the later crime is committed for PFO 2. |
Key Cases Cited
- White v. Commonwealth, 770 S.W.2d 222 (Ky. 1989) (establishes that diversion status affects conviction characterization)
- Thomas v. Commonwealth, 95 S.W.3d 828 (Ky. 2003) (diversion creates felon status pending sentence)
- Prather v. Commonwealth, 301 S.W.3d 20 (Ky. 2009) (diversion and concurrent sentencing considerations)
- Commonwealth v. Love, 334 S.W.3d 92 (Ky. 2011) (PFO framework and prior convictions)
- Commonwealth v. Harrelson, 14 S.W.3d 541 (Ky. 2000) (PFO statutory interpretation context)
- Chapman v. Commonwealth, 265 S.W.3d 156 (Ky. 2007) (judicial sentencing considerations in plea contexts)
- Knox v. Commonwealth, 361 S.W.3d 891 (Ky. 2012) (sentencing and diversion-related issues)
- Flynt v. Commonwealth, 105 S.W.3d 415 (Ky. 2003) (diversion and related procedural points)
- Peeler v. Commonwealth, 275 S.W.3d 223 (Ky. App. 2008) (diversion program characteristics)