RENDERED: AUGUST 25, 2023; 10:00 A.M. TO BE PUBLISHED 

# Commonwealth o f Kentucky Court of Appeals

NO. 20 22

- CA

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- M R

ERIN HELM APPELLANT

APPEAL FROM HARDIN CIRCUIT COURT v. HON ORABLE KELLY MARK EASTON, JUDGE ACTION NO

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- CR

- 00 581

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRM ING
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BEFORE: CALDWELL, JONES, AND TAYLOR , JUDGE S

. JONES , JUDGE: Erin Helm appeals from the Hardin Circuit Court ’ s order sentencing her to an alternate term of twelve months ’ incarceration after she

a bsconded from pretrial divers ion

. Helm now contend s the trial co urt did not have authority to modify her diversion because the diversionary period had expired

. After considering the f

acts and the law, we affirm the judgment of the trial court.- 2

- I. B ACKGROUN D On October 8 , 201 3 , the Hardin Co unty Commonwealth ’ s A ttorney , proceed ing by information , charg ed Helm for nine count s of second

- degree criminal possession of a forged instrument. 1 Helm ha d forged and cashed checks belong ing to Betty Hawk , with the tot al amount dra wn on the forged checks amounting to $221.46

. Helm enter ed a negotiated guilty plea on the counts in the indictment

. Upon the Commonwealth’s recommendation, t he trial court thereafter

se nt enced Helm to a t erm of two years ’ imprisonmen t , dive rted for five years under the state ’ s pretrial diversion program outlined in KRS 533.250

. As part of her conditions for pret rial diversion, Helm agreed t o pay restitution of $221.46.
She also a ckno wledged that her diversion period would be superv ised by the Division of Probation and Parole

. Hel m a greed to the terms fo r diversion in both her signed agreement with the Commonwealth and during her plea col lo quy with the trial court on Octo ber 1 5, 20 13. If H elm completed the five

- year diversionary period suc cessfu lly, her charges would be dism issed

- diverted and wo uld not constitut e a criminal conviction pursuant to KRS 533.25 8.

Unfortunately, within two weeks , the trial court received a n affid avit from Helm ’ s probation officer indicating that she had abscon d ed from supervision. The trial cour t ordered a bench war rant for Helm ’ s arrest on October 31, 2013 , but

1 Ke ntucky Re v ised S t atute (KRS) 51 6.060, a Class D f elony.- 3

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Helm was not a r re sted until Ap ril 9, 201 5 . The Commonwealth moved to void Helm ’ s pretrial diversion based on the violation

. In a hearing on the motio n, Helm ack nowl edge d her wrong doing

. After ordering an e valuation, and i n lieu of
revocat ion, the trial court added a condition that Helm must complete mental health court to suc cessfully complete her diversion.

A litt le o ver one year later, on Jun e 6, 2 01 6, Helm r eported to her probation o fficer and listed he r address a s 105 Black burn Road , Rineyville, Kentucky . However , when the officer contacted the resident of 105 Blackburn Road , the res ident indicated that Helm had not lived ther e for a p proximately ten days

. This mean t that Helm had filed a false rep ort o f her current address on June
6 , a nd her whereabouts were once again unknown. Furthermore, the program
super visor at mental health court file d an affidavit indicat ing that Helm had abscon ded from t he program on June 8, 2016

. The trial court thereafter t erminated Helm from the mental health court program and issued a nother bench warrant f or her arrest. The bench warrant, entered on June 14, 2 016 , would not be exec uted until August 29, 20 22, when He lm turned herself in. The C ommonwealth moved to void Hel m ’ s diversion on September 6, 20 22, the same day H elm was brought before the trial court on the warrant . T he trial court explained to Helm t hat she had violated her diversion and , with her per missio n, the diversion would be ex tended- 4

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for another week so sh e and her lawyer could prepare for a hearing on the violation. Helm agreed

.

On Sep tember 13, 20 22, the trial court heard testimony from a probation and parole officer outlin ing Helm ’ s history of noncompl iance with the
terms of her diversion. The o ffic er fin ished by pointing out that Helm had effectively disappeared f

or six years, and probation and parole had no idea what she had been doing in the meantime. Helm testi fied in her defense , stating how mental health court had given her the tools to mainta in sobriety, but she ackno wledged that abscon ding was a po or decision. She also stated that she turned herself in because she wanted to do the right thing. Helm then testified that she just made a payment on her restitution

. The trial cour t, unimpressed , pointed out that this payment , over nine years later, was the first time she had mad e a ny payments toward her restitu tion

. In response to her testimony that she was now maintaining sobriety , the t rial court also pointed out that sh e tested positive for

ma rijuana when she was arrested. Helm then admitted she had smoked ma r ijuana.

In the h e a r i n g ’ s final arguments , Helm ’ s cou nsel argued that the trial court no longer had jurisdiction over the case because the diversionary period had expired , and the Com monwealth had not filed a timely motion to void diversion. As a result, Helm ’ s counsel asserted that the trial co urt had no option other than to order the ch arges dismissed

- diverted. The Commonweal th, citing the number and- 5

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length of the times Helm had ab sconded, argued that Helm had shown no re spec t for the trial court . The Commonwealth then asked the tr ial court to impose an alternate sentence

. The trial court agreed and ultimately declined to vo id Helm ’ s diversion , instead ord ering her to serve twelve months as an alternate s entence. The trial court followed up on i ts order with a written memorandum explaining its ruling. This appeal follow ed

. II. A NALYSIS

Pre trial dive rsion is conducted under the aus pices o f RCr 2 8.04 and
KRS 533.250 e t seq. A trial c ourt’s dec isions regarding pretrial diversion are reviewed using the same criteria as decision s to revoke probation. Richardson v. Commonwealth , 494 S.W.3d 495, 498 (Ky. App. 2015). “A decis ion to r evoke probation is reviewed for an abuse of discretion.” Commonwealth v. Andrews , 448 S.W.3d 773, 780 (Ky. 2014) ( citation omitted). “Under our abuse of discretion standard of review, we will disturb a rulin g only u pon finding that ‘the trial judge’s
de cision was arbitrary, unreasonable, unfair, or unsupporte d by sound legal principles.’” Id . (quoting Commonwealth v. English , 993 S.W.2d 941, 945 (Ky. 1999)). In her sole argument on appeal, Hel m contends the trial court incorrectly ruled that it had the authority to impose a sanction after the

2 Ke ntucky Rule of Criminal Procedure.- 6

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diversionary pe riod had expired. Helm asserts “ [ t ] he only action the trial court was

au thori zed to take was to enter a final disposition of the case as diverted

di smi ssed

. ” (Appellant ’ s Brief at 6.) For s upport, s he cites as authority Ballard v.
Common wealth , 320 S.W. 3d 69 (Ky. 2010) , and Tucker v. Commonwealth , 295 S.W.3d 455 (Ky. App. 2009) . These cases collectively stand for the proposition that , al though a trial court has authority to void diversion a fter ex piration of the diversionary period, a “ motion by [the] C ommonwealth to void [a] diversion agreement is ‘ required to be made before expiration of the pretrial diversion period

. ’ ” Ballard , 320 S.W.3d at 74 (quoting Tucker , 295 S.W.3d at 458). H e l m

a s s erts that the Commonwealth failed to file a motion to vo id he r diversion prior to its ex piration , which left t he trial co urt with no authority except to dismiss the

c harges as diverted in her case.

Helm is correct regarding the points of law in her cited auth ori ties

. However, she fail s to recognize that these auth orities are inapplicable to the facts of her case. The crucial distinguis hing factor s are (1) the trial court never voided her diversion, and (2 ) the trial court issued a bench warrant for her arres t after she ab scond ed during the diversionary period

. In its memorand um explaining its decision , the trial court pointed out that “ [t]he law recognizes probation and diversion are to be generally tr eated the same. ” (R ecord (R. ) at 106.) The trial
court also noted that KRS 533.254(1) appl ies the provisions of KRS 533.020 to- 7

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pretrial diversion, which ext ends the probationary period while a warrant is pending. The trial court ’ s analysis is correct

. KRS 533.254(1) states , in relevant part, that “ [t]he pro visions of KRS 533.020 relating to the period of probatio n shall, in so far as possible , be appli cable to the period of pretrial diversion[.] ” KRS 533.020(4) read s , in relevant part, that “ [u] pon completion of the probationary period, probation with an al ternative sentence, or the period of conditional discharg e, the defendant shall be deemed finally discharged, provided no warrant issued by the court is pending against him [.] ” (Emphasis added .) The Kentucky Su preme Court explaine d :

The language of KRS 5 33.020(4) is cle ar: probation is automatically discharge d upon completion of a probationary period unless it has been revoked or an arrest warrant is pending. If neither condition exists, the trial court loses jurisdiction both to revoke and to modify th e conditions of pr obation. A warrant remains “pending” u ntil the defendant is brought before the court at which time, given probable cause to do so, the court may extend the probationary period for a reasonable time until a revocation hearing can be held. Commonwealth v. Tapp , 497 S.W.3d 239, 242 (Ky. 2016)

. More succinctly, “ the issuance of a warrant for a probation violation will toll the period of probation preventing the probationer from being automatically discharged pursuant to KRS 533.020(4). ” Wh itcomb v. Commonwealth , 424 S.W.3d 417, 420 (Ky. 2014)

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- T here are very few cases discussi ng K RS 533.020(4) in the context of extend ing pretrial diversion based on a pending warrant

. The unpublished cases which are on point, however, agree that a p ending warrant permits the trial court to continue e xer cis ing ju risdiction over the case ; see , e.g. , McElroy v. Commonwealth , No. 2005

- CA

- 0025 47

- MR, 2006 WL 3375244 (Ky. App. Nov. 22, 20 0 6); Ko

pp v. Commonwealth , No. 2002

- CA

- 001629

- MR , 2004 WL
81644 1 (Ky. App. Apr . 16, 2004)

. 3 Furthermore , the statut ory language is
exp ansive, in dicat in g that the General Assembly wished to apply the provisions of KRS 533.020 to pretrial diversion “ in so far as possible. ” KRS 533.254(1 )

. “ Our ultimate goal when reviewing and apply ing statutes is to give effect to the intent of the Gener al Assembly.

. . . We also presume that the General Assembly did not intend an absurd statute or an unconstitutional one. ” Commonwealth v. Wright , 415 S.W.3d 606, 609 (Ky. 2013) (citing Shawnee Tel ecom Resources, Inc. v.
Brown , 354 S.W.3d 542, 551 (Ky. 2 011 ) )

.

As the tri al court noted in its memorandum, “ F or the law to be interpreted and applied to permit a multiyear absco nding without consequence

wou ld be an absurd result which the General Assem bly could not possibly have
i ntended when considering how the various relevant statutes are to be applied. ” (R. at 108 .) Despite her nearly co mplete his tory of noncompliance , during which

3 P ursuant to Kentucky R ule of Appellate Procedure (RAP) 41 , t hese unpublished cases are not binding authority and are cited o nly for the ir illu strative value on the relevant point of law

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Helm was supervised for a p pro ximately fourteen months instead of t he five years to which she agreed , the trial court noneth eless g ave her an alternat e s entence which wil l ultimately result in diver ted charges ra th er than a felony record

. We discern no abuse of discretion

. III. C ONCLUSION

For the foregoi ng reasons, we af fir m the judgment of the Hardin
C ircuit C ourt

.

ALL CONCUR.

BR IEF S FOR APP ELL ANT: Sarah D. Dailey Frankfort , Kentucky BRIEF FOR APPELLEE: Daniel Cameron Attorney General of Kentucky Ch risto pher Henry Assistant Attorney General Frankfort, Kentucky