RENDERED: MARCH 14, 2019

TO BE PUBLISHED

2017-SC-000629-MR

,

JOSHUA T. HAMMOND APPELLANT

ON APPEAL FROM FRANKLIN CIRCUIT COURT

V. HONORABLE PHILLIP J. SHEPHERD, JUDGE

NO. 12-CR-00099-002

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE HUGHES

AFFIRMING

In 2014, Joshua T. Hammond first appealed to this Court from a

Franklin Circuit Court judgment sentencing him to twenty-five years for firstdegree robbery, first-degree assault, reckless homicide, and tampering with

evidence. Following the guilt phase of a jury trial, Hammond waived jury

sentencing and entered a plea agreement with the Commonwealth as to

sentencing, while reserving his right to appeal his conviction. The trial court

sentenced Hammond to twenty-five years in accordance with the agreement.

On Hammond ’ s appeal from the judgment, this Court reversed the first-degree

assault conviction and remanded the case to the trial court to enter a new

judgment. Hammond v. Commonwealth, 504 S.W.3d 44 (Ky. 2016). On

remand, the trial court again sentenced Hammond to twenty-five years

consistent with this Court ’ s opinion. Hammond now appeals from that secondjudgment, raising a new issue that could not have been included in the first

appeal.

FACTS

To briefly reiterate the underlying facts, Hammond and two other men

drove to Lexington to purchase drugs. After making the purchase, Hammond

devised a plan to rob Charles Monroe, a Frankfort drug dealer. Hammond set

up a meeting with Monroe and the four men drove to a local Wal-Mart. After

Hammond and Monroe spent some time in the store, they returned to

Hammond ’ s truck but instead of going toward Monroe ’ s home, Hammond drove

in a different direction. When Monroe stated that they were going the wrong

way$ Hammond stopped the truck on the side of an interstate ramp and

demanded that Monroe hand over his money and drugs. Hammond then

began hitting Monroe in the head with a police baton. Monroe attempted to

defend himself, but Hammond walked around to the passenger side while one

of the other men held Monroe in a chokehold. Hammond continued striking

Monroe on the head with the baton and searched for drugs and money,

ultimately collecting $160 and some pills. Hammond pulled Monroe from the

truck and left him on the side of the highway. Monroe died as a result of the

assault, and the medical examiner stated the death was likely a result of an

injury to Monroe ’ s throat, caused by the chokehold. 1

1 A full recitation of the facts can be found in Hammond v. Commonwealth, 504

S.W.3d 44 (Ky. 2016).

2In 2014, a Franklin Circuit Court jury found Hammond guilty of firstdegree robbery, first-degree assault, reckless homicide and tampering with

evidence. After the guilt phase, Hammond entered into a plea agreement with

the Commonwealth to avoid the jury sentencing phase, and the trial court

sentenced Hammond to twenty years for first-degree robbery and twenty years

for first-degree assault (to be served concurrently), and five years each for

reckless homicide and tampering with evidence (to be served concurrently) for a

total sentence of twenty-five years.

After entry of the judgment, Hammond appealed as a matter of right, and

this Court rendered an opinion on December 15, 2016, affirming in part,

reversing in part, and remanding. Hammond, 504 S.W.3d at 44. Hammond

raised five issues on appeal, and this Court reversed and remanded the case

solely as to the first-degree assault conviction.

In that earlier appeal, Hammond challenged his first-degree assault

conviction on three different grounds. He contended that the assault charge

merged into the robbery charge, that the assault charge merged into the

homicide charge, and that he should have received a directed verdict on the

assault charge due to insufficient evidence that he inflicted a serious physical

injury on Monroe. Hammond argued that the only physical injury to Monroe

serious enough to support an assault charge was the throat injury, and this

Court agreed. According to the medical testimony, the head wounds Hammond

inflicted on Monroe with the baton were superficial and did not cause Monroe ’ s

death. Since the head injury could not serve as the basis for the assault

3charge, the only other viable injury was the throat injury. Justice Venters,

writing for a unanimous Court, concluded that a “ single injuiy which proves to

be fatal cannot simultaneously serve as the injury in an underlying assault

conviction and. the fatal wound resulting in the death underlying the homicide

conviction. ” Hammond, 504 S.W.3d at 52. Since Monroe ultimately died

because of the throat injury, the injuiy should have only supported the

reckless homicide charge and not the assault charge.

This Court also agreed with Hammond that the first-degree assault

charge merged into the reckless homicide charge. The Court determined that

“ either the trial court erred by submitting to the jury a first degree assault

charge based upon evidence insufficient to establish that the head wound was

a ‘ serious physical injury ’ ; or, the jury was improperly permitted to find

Appellant guilty of both first degree assault and reckless homicide based upon

the serious injury to Monroe's throat. ” Id. at 53. Regardless of which specific

error occurred, Hammond ’ s first-degree assault conviction was reversed, and

the case was remanded to the trial court for re-sentencing, removing the firstdegree assault conviction but leaving the other convictions intact. This Court

noted that since Hammond was sentenced to twenty years on both the assault

and robbery charges, the reversal of the assault conviction did not affect

Hammond ’ s total twenty-five year sentence or parole eligibility. Id.

On October 12, 2017, the trial court conducted a re-sentencing hearing

where Hammond moved to withdraw the sentencing plea agreement and to

have a juiy impaneled for the penalty phase. The trial court denied his motion,

4stating that the Kentucky Supreme Court ruling contemplated re-sentencing

only to clarify that the assault conviction was set aside, and reversal of the

assault conviction did not affect Hammond ’ s final sentence. Hammond was re

sentenced to twenty-five years, and now appeals from the trial court ’ s second

judgment.

ANALYSIS

Hammond argues that our holding in Hammond v. Commonwealth

changed the terms of his plea agreement and because of this change, he should

be permitted the right to proceed with a new jury empaneled for the penalty

phase. Specifically, he argues that he now faces a new set of circumstances,

i.e., he was originally facing a fifty-year sentence for all his charges while the

assault charge was still viable, but since the assault conviction has been

reversed, the longest sentence he could have received was thirty years.

I. Hammond waived his right to jury sentencing.

After the guilt phase of trial, Hammond entered a guilty plea pursuant to

a deal with the Commonwealth and waived his right to have a jury sentence

him. To be valid, a guilty plea must be entered “ intelligently and voluntarily. ”

Bronk v. Commonwealth, 58 S.W.3d 482, 486 (Ky. 2001). In determining

whether a plea is voluntary, trial courts make a fact-specific inquiry into the

totality of the circumstances surrounding the plea. Porter v. Commonwealth,

394 S.W.3d 382, 385 (Ky. 2011). In this case, the record was not preserved.

Two volumes of the trial court record are missing, and there are no video

recordings of the original trial court proceedings in the appellate record. When

5issues arise as to the completeness of the record, parties are allowed to submit

narrative statements to supplement the record. Early v. Commonwealth, 470

S.W.3d 729, 734 (Ky. 2015) (citing Kentucky Rule of Civil Procedure (CR)

75.13). No narrative statements were submitted.

“ It has long been held that, when the complete record is not before the

appellate court, that court must assume that the omitted record supports the

decision of the trial court. ” Commonwealth v. Thompson, 697 S.W.2d 143, 145

(Ky. 1985). The record does not include a copy of the plea agreement or a

recording of the trial court ’ s acceptance of the agreement. With no such

record, and no narrative supplementation, we are left to presume that the

omitted plea agreement was valid, and the trial court ’ s acceptance of the

agreement was proper.

All defendants have the right to a jury trial in all criminal prosecutions.

Kentucky Revised Statute (KRS) 29A.270(l). This is a fundamental right in our

legal system, and Hammond was entitled to, and received, this right. KRS

29A.270; U.S. Const, amend. VI. “ Cases required to be tried by jury shall be so

tried unless the defendant waives a jury trial in writing with the approval of the

court and the consent of the Commonwealth. ” Kentucky Rule of Criminal

Procedure (RCr) 9.26(1). KRS 532.055(2) requires that “ (u]pon return of a

verdict of guilty

. . . the court shall conduct a sentencing hearing before the

jury, if such case was tried before a jury. In the hearing the jury will determine

6the punishment to be imposed within the range provided elsewhere by law. ” 2

Under Kentucky law, a “ criminal defendant has a statutory right to have his

sentence set by a jury. ” Wilson v. Commonwealth, 765 S.W.2d 22 (Ky. 1989).

By entering a plea agreement, Hammond waived his right to be

sentenced by the jury. “ Among the rights recognized as requiring the

defendant ’ s personal waiver are the rights ‘ to plead guilty, waive a jury

... or

take an appeal. ” ’ Commonwealth v. Simmons, 394 S.W.3d 903, 912 (Ky. 2013)

(quoting Gonzalez v. United States, 553 U.S. 242, 251 (2008)). Since there is

no record of Hammond ’ s waiver, this Court is left to presume that Hammond

was adequately apprised of his rights and voluntarily made the decision to

waive his right to jury sentencing.

II. The plea agreement constituted a contract between Hammond

and the Commonwealth, but there were no ambiguities.

“ Generally, plea agreements in criminal cases are contracts between the

accused and the Commonwealth, and are interpreted according to

ordinary contract principles. ” McClanahan v. Commonwealth, 308 S.W.3d 694,

701 (Ky. 2010). The plea agreement between Hammond and the

Commonwealth indisputably should be construed as a contract. The general

2 In Commonwealth u. Reneer, 734 S.W.2d 794, 796 (Ky. 1987), this Court

recognized KRS 532.055 as “ a legislative attempt to invade the rule making prerogative

of the Supreme Court by legislatively prescribing rules of practice and procedure [and

therefore] it violates the separation of powers doctrine enunciated in Section 28 of the

Kentucky Constitution. ” In the spirit of comity, this Court declined to hold the statute

unconstitutional and agreed to follow it for the time being. This Court recently

reiterated the continuing acceptance of the statute in Huddleston v. Commonwealth,

542 S.W.3d 237, 240 (Ky. 2018).

7rule of law is that a court ’ s construction of a contract should be “ controlled by

the intention of the parties. ” Gibson v. Sellers, 252 S.W.2d 911 (Ky. 1952). By

entering the plea agreement and waiving jury sentencing, Hammond made a

knowing and voluntary decision to avoid a potentially longer sentence by

entering into an agreement with the Commonwealth for a specific term of years.

Conversely, the Commonwealth sought to avoid the possibility that the jury

would recommend a light sentence. The intention of the parties in entering a

plea agreement is clear.

In this appeal, Hammond argues that this Court ’ s opinion reversing the

assault conviction changed the terms of the contract and thereby created an

ambiguity. Hammond relies on Elmore v. Commonwealth, 236 S.W.3d 623 (Ky.

App. 2007), a Kentucky Court of Appeals ’ case that reviewed an ambiguity in a

plea agreement. In Elmore, the defendant entered a plea agreement with the

Commonwealth in which the Commonwealth agreed to recommend that his

sentence in the current, Shelby County case would run concurrently with a

ten-year sentence entered against him in Jefferson County. Id. at 625. The

agreement also stated that if Elmore was “ probated by Jefferson County the

sentence in Shelby County would likewise be probated. ” Id. Elmore ’ s appeal

arose over the correct meaning of “ likewise ” in his agreement. Id. at 626.

Since the term had two plausible meanings in the context of the plea

agreement, the Court of Appeals was tasked with interpreting the term and

resolving the ambiguity. Id. at 628-29. The Court of Appeals held that any

ambiguity in a plea agreement “ should be resolved in favor of the defendant

8and against the government. ” Id. at 627. In this case, the plea agreement

between Hammond and the Commonwealth did not contain an ambiguity at

the outset and no contract ambiguity was created by this Court ’ s directive on

remand. The plea agreement remains intact, and none of its terms are

presented to this Court as requiring interpretation.

“ An ambiguous contract is one capable of more than one different,

reasonable interpretation. ” Central Bank & Tr. Co. v. Kincaid, 617 S.W.2d 32,

33 (Ky. 1981). “ A contract written in clear and unambiguous language is not

subject to interpretation or construction and must be enforced according to its

terms. ” Bd. of Trustees of Kentucky School Bds. Ins. Tr. v. Pope, 528 S.W.3d

901, 906 (Ky. 2017). “ In the absence of ambiguity,

... a court will interpret

the contract ’ s terms by assigning language its ordinary meaning and without

resort to extrinsic evidence. A contract is ambiguous if a reasonable person

would find it susceptible to different or inconsistent interpretations. ” Kentucky

Shakespeare Festival, Inc. v. Dunaway, 490 S.W.3d 691, 694-95 (Ky. 2016)

(internal citations omitted)

.

For an ambiguity to exist in Hammond ’ s plea agreement, the terms

would need to be open to multiple interpretations, or contain unclear language.

This ambiguity must have existed in the contract at the time it was formed,

and that, obviously, is not the nature of his argument on appeal. Although

framed as a contract ambiguity, Hammond is essentially seeking a “ do-over, ”

with hopes of having a jury sentence him, despite having already waived that

right.

9We acknowledge that Hammond has had a change in circumstances.

Hammond initially faced up to fifty years in prison but the reversal of the

assault conviction changed his circumstances. If the assault charge had been

dismissed pretrial or by directed verdict, Hammond would have only faced up

to thirty years in prison following the guilt phase. But Hammond apparently

fails to recognize that he initiated this change in circumstances by appealing

his case, a right he specifically reserved in the plea agreement. His successful

appeal on the assault conviction does not invalidate the plea agreement. “ [P]lea

agreements are interpreted by what they say, not what they might have said if

the defendants or the government could have foreseen the future. ” United

States v. Melton, 861 F.3d 1320, 1329 (11th Cir. 2017). 3 * * * * * * 10

As observed by the United States Court of Appeals for the Seventh

Circuit:

3 United States v. Melton involved two defendants who entered plea agreements

with the government that stated the court would impose a sentence, and that the

United States Sentencing Guidelines would apply in an “ advisory manner. ” 861 F.3d

at 1322. The agreements also stated that the United States agreed to move for

downward departure from the Sentencing Guidelines if the defendants assisted the

United States in investigation or prosecution of other criminal offenses. Id. The

agreements did not say anything about filing motions under 18 U.S.C. § 3553(e),

which would allow the district court to impose a sentence below the statutory

mandatory minimum. Id. The defendants assisted the United States, and the United

States moved for a downward departure from the Sentencing Guidelines. Id. Several

years later, the Sentencing Guidelines were amended, applying retroactively, and the

amendment combined with the downward departure would have resulted in

significantly lower sentences for the defendants. Id. at 1324. The defendants filed

motions seeking to reduce their sentences, and the district court held that the

government would breach its plea agreement with the defendants unless the

government acted to ensure they received the same level of downward departure from

the post-Amendment guidelines ranges that they received when they were originally

sentenced. Id. The Court of Appeals reversed, reading the plea agreements for what

they said, not what they did not say. Id. at 1329.

10In a contract (and equally in a plea agreement) one binds

oneself to do something that someone else wants, in exchange for

some benefit to oneself. By binding oneself one assumes the risk

of future changes in circumstances in light of which one ’ s bargain

may prove to have been a bad one. That is the risk inherent in all

contracts; they limit the parties ’ ability to take advantage of what

may happen over the period in which the contract is in effect.

United States v. Bournes, 405 F.3d 634, 636 (7th Cir. 2005). Hammond

specifically reserved his right to appeal the finding of guilt in exchange for the

twenty-five-year sentence. At the time he entered the agreement, there was no

way to know whether his claims would be successful on appeal. “ Courts are

not authorized to ink in revisions to ensure that the defendants continue to

receive the same value regardless of future changes

. . . . ” Melton, 861 F.3d at

1329.

Here, Hammond bargained with the Commonwealth for a twenty-year

concurrent sentence for both the assault and robbery charge, each of which

could have carried a twenty-year sentence independently. Hammond accepted

and received the bargained-for sentence. His partially successful appeal does

not call the entire plea agreement into question. Simply put, a change in

circumstances is a risk inherent in all contracts, including Hammond ’ s plea

agreement, and changed circumstances do not permit his withdrawal from the

agreement.

Finally, this Court ’ s directive in Hammond v. Commonwealth was clear:

“ this case is remanded for entry of a new judgment consistent with this

opinion. ” 504 S.W.3d at 58. “ Because the twenty year assault conviction was

adjudged to run concurrently with the first degree robbery conviction, the

11reversal of the assault conviction affects neither [Hammond ’ s] total sentence

nor his parole eligibility. ” Id. at 54. We find no basis for disturbing

Hammond ’ s valid jury waiver and plea agreement.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the Franklin Circuit

Court.

Minton, C.J.; Keller, Lambert, VanMeter, and Wright, JJ., sitting. All

concur.

COUNSEL FOR APPELLANT:

Mark H. Woloshin

Woloshin Law Office

COUNSEL FOR APPELLEE:

Andy Be shear

Attorney General of Kentucky

Kenneth Wayne Riggs

Assistant Attorney General

Office of Criminal Appeals

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