IMPORTANT NOTICE

NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” 

PURSUANT TO THE RULES OF CIVIL PROCEDURE 

PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), 

THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE

CITED OR USED AS BINDING PRECEDENT IN ANY OTHER

CASE IN ANY COURT OF THIS STATE; HOWEVER, 

UNPUBLISHED KENTUCKY APPELLATE DECISIONS,

RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR 

CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED

OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE 

BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION

BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED

DECISION IN THE FILED DOCUMENT AND A COPY OF THE 

ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE

DOCUMENT TO THE COURT AND ALL PARTIES TO THE 

ACTION.

 
RENDERED: MARCH 24, 2022

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2021-SC-0152-MR

JAMES GARRIGUS APPELLANT

ON APPEAL FROM GRAYSON CIRCUIT COURT

V. HONORABLE BRUCE BUTLER, JUDGE 

NO. 19-CR-00051

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

James Garrigus entered a conditional guilty plea to murder for the death 

of his girlfriend’s baby and received a 30-year sentence, retaining the right to 

appeal the Grayson Circuit Court’s denial of his motion to enforce a previouslyoffered, more favorable 20-year plea bargain. The 20-year offer was withdrawn 

by the Commonwealth before Garrigus accepted it or otherwise acted upon it. 

Garrigus argued below that he had waived his right to a speedy trial in reliance 

that the 20-year offer would remain open until the next status conference and 

thus was entitled to its benefit. Following a hearing on Garrigus’s motion to 

enforce the withdrawn offer, the trial court found that he had not shown 

reliance on the 20-year offer to his detriment or provided any valid
2

consideration exchange for the offer and therefore the Commonwealth was free 

to withdraw the offer at any time. We affirm. 

I. Facts and Procedural Background

In December 2018, Garrigus beat his girlfriend’s 23-month-old son to 

death because the baby threw up and did not eat the eggs Garrigus had cooked 

for him. His two biological children witnessed the incident and recalled its 

details to investigators.

The sole issue on appeal concerns the applicability of contract law 

principles in the plea-bargaining context and whether the trial court correctly 

denied Garrigus’s motion to enforce the Commonwealth’s withdrawn 20-year 

offer. In February 2019, Garrigus was indicted for the baby’s murder, 

arraigned, and pled not guilty. At an April 2019 status conference, the trial 

court continued the case at Garrigus’s request to allow him time to review 

discovery. At the next status conference in July 2019, Garrigus again asked 

the court to continue his case for more time to review discovery; the 

Commonwealth stated it wished to set the case for trial. Garrigus responded 

that he was not ready to set his case for trial. The trial court told Garrigus it 

would grant him one more continuance but that the case would be set for trial 

at the next status conference which, at Garrigus’s request, was set for October 

15, 2019.

On October 15, 2019, Garrigus, unaware that a plea offer had been filed 

the day before, thus requested a trial date. The Commonwealth informed him 

and the court that it had filed an offer the day before: 20 years for murder. 
3

Garrigus asked to continue the case to give him time to consider the offer. The 

trial court provided November 5, 2019 as the next available date but granted 

Garrigus’s request to push it back to November 19, 2019. The Commonwealth 

commented, “If this isn’t realistic we can go ahead and set a trial date. I don’t 

want to waste anybody’s time. I mean if he wants to consider it seriously, I’m 

happy to go to the 19th.” Garrigus responded, “Well I think let’s go to the 

19th.” Thus, the case was continued until November 19.

On October 24, 2019, the Commonwealth filed a notice revoking the 20-

year offer. Apparently, the offer had been extended by the Grayson County 

Commonwealth’s Attorney’s First Assistant without reaching a conclusive 

agreement with the Commonwealth’s Attorney as to the severity of Garrigus’s 

punishment. On November 8, 2019, the Commonwealth’s Attorney sent 

Garrigus’s attorney a letter of apology for the miscommunication within his 

office and for putting defense counsel in an untenable position. The letter in 

essence stated that the Commonwealth’s Attorney disagreed with the 20-year 

offer made and that was the basis for its revocation. 

The day before the scheduled November 19 conference, Garrigus filed a 

motion to enter guilty plea and attached the 20-year offer that had been 

withdrawn nearly a month before. The Commonwealth informed the trial court 

that it had revoked the 20-year offer; nonetheless, Garrigus stated that he 

wished to accept the revoked offer. Noting that the offer had been revoked, the 

court asked if the case should be set for trial, to which Garrigus responded 

affirmatively, but indicated that he would like a hearing on the issue of offer 
4

revocation. The court granted Garrigus’s request for a hearing on the issue 

and then set the case for trial on June 10-12, 2020 and scheduled a final

status conference for May 5, 2020.

On May 5, 2020, the court remanded the case from the trial docket due 

to COVID-19 and set a status conference for June 16, 2020. On June 16, 

2020, Garrigus asked for, and was granted, continuance of the case until 

August 18, 2020, stating that he would likely need a trial date set then. At the 

August 18 conference, the court offered December 7-10, 2020 as a trial date

but on Garrigus’s request for a date farther out, the case was set for trial for

March 9-12, 2021. 

On November 6, 2020, the Commonwealth filed a new offer of 30-years’ 

imprisonment for murder, which included Garrigus’s right to appeal the issue 

of whether the prior 20-year offer was revoked prior to acceptance. Garrigus 

accepted the Commonwealth’s 30-year offer and filed a motion to enter a 

conditional guilty plea. He then filed a separate motion to enter a plea, asking 

the court to enforce the withdrawn 20-year offer on the basis that he had 

waived his right to a speedy trial in detrimental reliance on it and thus was 

entitled to its benefit, citing Workman v. Commonwealth, 580 S.W.2d 206, 207 

(Ky. 1979) (“[t]he question is not whether the Commonwealth’s bargain was 

wise or foolish. The question is whether the Commonwealth should be 

permitted to break its word[]”), overruled on other grounds by Morton v.

Commonwealth, 817 S.W.2d 218 (Ky. 1991). Garrigus emphasized that he 

reasonably believed the offer would remain open until November 19 and had he 
5

realized it was a “ticking time-bomb that must be accepted as soon as 

possible,” he would have consulted with his counsel immediately. In response, 

the Commonwealth pointed out that Garrigus was not entitled to any plea offer

at all, nor had he asserted or shown a desire for a speedy trial; consequently he 

could not argue that he had detrimentally relied on the 20-year offer or that the 

one-month continuance from October 15 until November 19 sufficed as valid 

consideration.

In March 2021, the trial court considered Garrigus’s motion to enforce 

the withdrawn offer and his motion to enter a guilty plea. The court accepted 

Garrigus’s 30-year conditional guilty plea and sentenced him accordingly. By 

separate order, the court denied Garrigus’s motion to enforce the 20-year offer, 

finding that Garrigus had provided no consideration to support an options 

contract, no conditions existed in the offer for Garrigus to perform thereby 

creating detrimental reliance and the Commonwealth validly revoked the offer 

before acceptance. This appeal followed. 

II. Analysis

Garrigus argues that the trial court should have granted his request for 

specific enforcement of the Commonwealth’s 20-year offer. He asserts that the 

Commonwealth’s 20-year offer created a binding irrevocable options contract, 

requiring the offer to remain open until November 19, and that the trial court 

erred in finding that he had not offered any consideration in exchange. Thus, 

he contends that the Commonwealth’s revocation of the offer before November 

19 was a breach of the options contract.
6

Garrigus notes that the trial court’s order incorrectly found that the 

purpose of the continuance from October 15 to November 19 was for the 

defense to review discovery, rather than to allow him time to consider the offer. 

Garrigus states he was expecting to pick a trial date at the October 15 

conference since the Commonwealth had not extended any offers. He claims 

he was surprised to learn of the Commonwealth’s 20-year offer, and that the 

sole purpose of the continuance until November 19 was to give him time to 

consider it. Garrigus maintains he was prepared to accept the offer on 

November 19, but the Commonwealth had already withdrawn it. Garrigus 

contends that by not picking a trial date on October 15, in reliance on having 

until November 19 to contemplate the plea offer, his forbearance of a speedy 

trial was valid consideration to create an options contract. 

The Commonwealth concedes that the portion of the trial court’s order 

finding that discovery was the purpose for the continuance from October 15 to 

November 19 was mistaken, noting that discovery was not discussed at the 

October 15 conference. Nevertheless, the Commonwealth argues that the 

remainder of the trial court’s order correctly found that the 20-year offer was 

validly revoked prior to acceptance and that Garrigus had not relied on the 

offer to his detriment because no conditions were contained in the offer for him 

to rely on; specifically, no written or verbal promise by the Commonwealth to 

keep the offer open for any period of time. Thus, despite the trial court’s 

incorrect finding regarding discovery, the Commonwealth asserts that the 

record shows that Garrigus offered no consideration for, or experienced any 
7

detrimental reliance on, the plea offer before it was revoked. See McCloud v. 

Commonwealth, 286 S.W.3d 780, 786 n.19 (Ky. 2009) (“an appellate court may 

affirm a lower court for any reason supported by the record[]”).

“[T]he formation of a contract requires a bargain in which there is a 

manifestation of mutual assent to the exchange and a consideration.” 

Restatement (Second) of Contracts § 17 (1981). “An option contract is a 

promise which meets the requirements for the formation of a contract and 

limits the promisor’s power to revoke an offer.” Restatement (Second) of 

Contracts § 25 (1981). “It is well settled that an option is not binding as a 

contract where there is no consideration, unless it is accepted within the time 

limit and before the offer is withdrawn.” Combs v. Turner, 304 Ky. 179, 181, 

200 S.W.2d 288, 289 (1947).

As this Court has noted, plea agreements are constitutional contracts 

involving “[t]he due process right to a fair trial; the right against selfincrimination; the right to remain silent; the due process right to fundamental 

fairness.” Commonwealth v. Reyes, 764 S.W.2d 62, 64 (Ky. 1989). The Reyes

court further noted,

It seems obvious that if the state makes a promise to an accused 

and the accused takes no action in reliance on the promise, the state 

may withdraw the offer. No agreement has been reached. There is 

nothing to enforce. The prosecutor's right to withdraw is equal to his 

right to withhold an offer. No defendant has a constitutional right to 

plea bargain. The prosecutor may engage in it or not in his sole 

discretion. If he wishes, he may go to trial. Weatherford v. Bursey,

429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). If the prosecutor 

makes a plea bargain offer and withdraws it before it is accepted or 

detrimentally acted upon by the defendant, the defendant will not 

be heard to complain that his constitutional rights to due process 
8

and effective counsel have been violated. Government of the Virgin

Islands v. Scotland, 614 F.2d 360 (CA 3, 1980).

However, if the offer is made by the prosecution and accepted by the 

accused, either by entering a plea or by taking action to his 

detriment in reliance on the offer, then the agreement becomes 

binding and enforceable. Constitutional as well as contractual rights 

become involved. . . . A case to compare is Adkins v. Commonwealth,

Ky.App., 647 S.W.2d 502 (1983) where the defendant never accepted 

the state's offer and had taken no action in reliance upon it. “Here, 

because appellant never personally accepted the Commonwealth's 

offer, it remained an offer and was revocable by the Commonwealth 

at any time.” The element of estoppel was alluded to in Government

of Virgin Islands, supra. “When, however, the defendant 

detrimentally relies on the government's promise, the resulting harm 

from this induced reliance implicates due process guarantees.”

Id. at 64–65.

The question of whether a valid and enforceable contract was made is 

one of fact, Hickey v. Glass, 149 S.W.2d 535, 536 (Ky. 1941), and the trial 

court’s factual findings cannot be set aside unless clearly erroneous. CR1

52.01. Undisputedly, Garrigus did not accept the Commonwealth’s 20-year 

offer before it was withdrawn. Contrary to Garrigus’s assertion, nothing in the 

Commonwealth’s 20-year written offer indicated that the offer would remain 

open for a certain period of time and the Commonwealth did not expressly 

promise as much during the October 15 conference. At the October 15 

conference, in response to Garrigus’s request for more time to consider the 

offer, the Commonwealth stated: “If this isn’t realistic, we can go ahead and set 

a trial date. I don’t want to waste anybody’s time. I mean if he wants to 

consider it seriously, I am happy to go to the 19th.” The Commonwealth’s 

 

1 Kentucky Rules of Civil Procedure.
9

comment was not an implicit agreement to hold the 20-year offer open until 

November 19; rather, it was an explicit agreement not to set the case for trial 

that day and to reconvene on the 19th. A meeting of the minds is “the most 

essential factor to constitute a binding contract.” Commonwealth v. Jackson, 

529 S.W.3d 739, 744 (Ky. 2017) (citation omitted). Without a meeting of minds 

on the revocability of the offer, no options contract was created requiring the 

Commonwealth to hold the offer open until November 19. The language of the 

plea offer and the exchange between counsel at the October 15 status 

conference does not unequivocally demonstrate mutual assent that the plea 

offer would remain on the table for a guaranteed period of time. And without 

consideration on Garrigus’s behalf, the Commonwealth could withdraw the 

offer at any time before Garrigus notified it that he intended to accept it.

Turning to the principles of consideration and estoppel, the record shows 

that Garrigus did not rely to his detriment by continuing the case for another 

month while he considered the offer, especially given that since his indictment,

Garrigus never expressed a desire for a speedy trial, or filed a motion 

requesting one. While a speedy trial is guaranteed to criminal defendants by 

virtue of the Sixth Amendment to the United States Constitution and the 

Kentucky Constitution, Section 11, the defendant bears the responsibility to 

assert his right to a speedy trial. Goncalves v. Commonwealth, 404 S.W.3d 

180, 202 (Ky. 2013).

In determining whether a criminal defendant has been deprived of 

his right to a speedy trial, we consider four factors: (1) the length of 

delay; (2) the reasons for the delay; (3) the defendant's assertion of 

his right to a speedy trial; and (4) prejudice to the defendant. We 
10

regard none of the four factors ... as either a necessary or sufficient 

condition to the finding of a deprivation of the right of speedy trial. 

Rather, they are related factors and must be considered together 

with such other circumstances as may be relevant. Bearing in mind 

that a fundamental right is involved, we must engage in a careful 

balancing process.

Smith v. Commonwealth, 361 S.W.3d 908, 914 (Ky. 2012) (internal quotations 

and citations omitted).

The record reflects that Garrigus never filed a motion for a speedy trial or 

asserted that right; instead, he repeatedly requested and acquiesced to 

numerous continuances. See Henderson v. Commonwealth, 563 S.W.3d 651, 

665 (Ky. 2018) (“[i]f a defendant acquiesces in a delay, he cannot be heard to 

complain about the delay[]”) (citation omitted). At the October 15 conference, 

for example, Garrigus could have simultaneously asked for a trial date while he 

contemplated the plea offer, had he wished to assert his right to a speedy trial. 

Moreover, he took no immediate action to set a trial date after the 

Commonwealth withdrew its offer; in fact, when offered a trial date in 

December 2020, Garrigus asked to go to March 2021 instead.

Garrigus argues that detrimental reliance aside, the delay of his 

constitutional right to a speedy trial sufficed as the requisite consideration for 

purposes of contract formation. He claims that both sides agreed to a 

bargained-for exchange: the Commonwealth agreed to hold its offer open until 

November 19 and Garrigus agreed to seriously consider the offer and forbear 

his right to a speedy trial. However, our review of the record shows that the 

Commonwealth did not expressly promise to keep the offer open for any period 

of time. Given that Garrigus was not entitled to the Commonwealth’s 20-year 
11

plea offer, or any plea offer at all, his better course of action would have been to 

swiftly act on the generous offer while it remained outstanding. Without 

acceptance, before revocation or detrimental reliance by Garrigus, no contract 

was formed and the Commonwealth was free to withdraw its offer at any time. 

“[A] plea bargain agreement which has not been consummated is not 

enforceable unless there has been a reliance on the bargain by the defendant 

which has resulted in detriment to him[.]” Cope v. Commonwealth, 645 S.W.2d 

703, 704 (Ky. 1983). Here, the evidence was sufficient to support the trial 

court’s determination that the 20-year plea offer was not enforceable between 

the parties. As a result, the trial court did not err by denying Garrigus’s 

motion to enforce the withdrawn offer.

III. Conclusion

For the foregoing reasons, the Grayson Circuit Court’s judgment is 

affirmed.

All sitting. All concur. 

COUNSEL FOR APPELLANT:

Aaron Reed Baker

Kathleen Kallaher Schmidt

Assistant Public Advocates

Department of Public Advocacy

COUNSEL FOR APPELLEE:

Daniel J. Cameron

Attorney General of Kentucky

Aspen Caroline Carlisle Roberts

Assistant Attorney General