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

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-1232-MR

ERIN HELM APPELLANT

APPEAL FROM HARDIN CIRCUIT COURT

v. HONORABLE KELLY MARK EASTON, JUDGE

ACTION NO. 13-CR-00581

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING

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BEFORE: CALDWELL, JONES, AND TAYLOR, JUDGES.

JONES, JUDGE: Erin Helm appeals from the Hardin Circuit Court’s order

sentencing her to an alternate term of twelve months’ incarceration after she 

absconded from pretrial diversion. Helm now contends the trial court did not have 

authority to modify her diversion because the diversionary period had expired. 

After considering the facts and the law, we affirm the judgment of the trial court.
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I. BACKGROUND

On October 8, 2013, the Hardin County Commonwealth’s Attorney,

proceeding by information, charged Helm for nine counts of second-degree 

criminal possession of a forged instrument.1 Helm had forged and cashed checks 

belonging to Betty Hawk, with the total amount drawn on the forged checks

amounting to $221.46. Helm entered a negotiated guilty plea on the counts in the 

indictment. Upon the Commonwealth’s recommendation, the trial court thereafter 

sentenced Helm to a term of two years’ imprisonment, diverted for five years 

under the state’s pretrial diversion program outlined in KRS 533.250. As part of 

her conditions for pretrial diversion, Helm agreed to pay restitution of $221.46. 

She also acknowledged that her diversion period would be supervised by the 

Division of Probation and Parole. Helm agreed to the terms for diversion in both 

her signed agreement with the Commonwealth and during her plea colloquy with 

the trial court on October 15, 2013. If Helm completed the five-year diversionary 

period successfully, her charges would be dismissed-diverted and would not 

constitute a criminal conviction pursuant to KRS 533.258.

Unfortunately, within two weeks, the trial court received an affidavit 

from Helm’s probation officer indicating that she had absconded from supervision. 

The trial court ordered a bench warrant for Helm’s arrest on October 31, 2013, but 

1

 Kentucky Revised Statute (KRS) 516.060, a Class D felony.
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Helm was not arrested until April 9, 2015. The Commonwealth moved to void 

Helm’s pretrial diversion based on the violation. In a hearing on the motion, Helm 

acknowledged her wrongdoing. After ordering an evaluation, and in lieu of 

revocation, the trial court added a condition that Helm must complete mental 

health court to successfully complete her diversion.

A little over one year later, on June 6, 2016, Helm reported to her 

probation officer and listed her address as 105 Blackburn Road, Rineyville, 

Kentucky. However, when the officer contacted the resident of 105 Blackburn 

Road, the resident indicated that Helm had not lived there for approximately ten 

days. This meant that Helm had filed a false report of her current address on June 

6, and her whereabouts were once again unknown. Furthermore, the program 

supervisor at mental health court filed an affidavit indicating that Helm had 

absconded from the program on June 8, 2016. The trial court thereafter terminated 

Helm from the mental health court program and issued another bench warrant for 

her arrest. The bench warrant, entered on June 14, 2016, would not be executed 

until August 29, 2022, when Helm turned herself in. The Commonwealth moved 

to void Helm’s diversion on September 6, 2022, the same day Helm was brought 

before the trial court on the warrant. The trial court explained to Helm that she had 

violated her diversion and, with her permission, the diversion would be extended 
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for another week so she and her lawyer could prepare for a hearing on the 

violation. Helm agreed. 

On September 13, 2022, the trial court heard testimony from a 

probation and parole officer outlining Helm’s history of noncompliance with the 

terms of her diversion. The officer finished by pointing out that Helm had 

effectively disappeared for six years, and probation and parole had no idea what 

she had been doing in the meantime. Helm testified in her defense, stating how 

mental health court had given her the tools to maintain sobriety, but she 

acknowledged that absconding was a poor 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 court, unimpressed, pointed out 

that this payment, over nine years later, was the first time she had made any 

payments toward her restitution. In response to her testimony that she was now 

maintaining sobriety, the trial court also pointed out that she tested positive for 

marijuana when she was arrested. Helm then admitted she had smoked marijuana. 

In the hearing’s final arguments, Helm’s counsel argued that the trial 

court no longer had jurisdiction over the case because the diversionary period had 

expired, and the Commonwealth had not filed a timely motion to void diversion. 

As a result, Helm’s counsel asserted that the trial court had no option other than to 

order the charges dismissed-diverted. The Commonwealth, citing the number and 
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length of the times Helm had absconded, argued that Helm had shown no respect 

for the trial court. The Commonwealth then asked the trial court to impose an 

alternate sentence. The trial court agreed and ultimately declined to void Helm’s 

diversion, instead ordering her to serve twelve months as an alternate sentence. 

The trial court followed up on its order with a written memorandum explaining its 

ruling. This appeal followed.

II. ANALYSIS

Pretrial diversion is conducted under the auspices of RCr2 8.04 and 

KRS 533.250 et seq. A trial court’s decisions regarding pretrial diversion are 

reviewed using the same criteria as decisions to revoke probation. Richardson v. 

Commonwealth, 494 S.W.3d 495, 498 (Ky. App. 2015). “A decision to revoke 

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 ruling only upon finding that ‘the trial judge’s 

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

principles.’” Id. (quoting Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 

1999)).

In her sole argument on appeal, Helm contends the trial court 

incorrectly ruled that it had the authority to impose a sanction after the 

2

 Kentucky Rule of Criminal Procedure.
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diversionary period had expired. Helm asserts “[t]he only action the trial court was 

authorized to take was to enter a final disposition of the case as diverteddismissed.” (Appellant’s Brief at 6.) For support, she cites as authority Ballard v. 

Commonwealth, 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, although a trial court has authority to void diversion after expiration of the 

diversionary period, a “motion by [the] Commonwealth 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). Helm

asserts that the Commonwealth failed to file a motion to void her diversion prior to 

its expiration, which left the trial court with no authority except to dismiss the

charges as diverted in her case.

Helm is correct regarding the points of law in her cited authorities. 

However, she fails to recognize that these authorities are inapplicable to the facts 

of her case. The crucial distinguishing factors are (1) the trial court never voided 

her diversion, and (2) the trial court issued a bench warrant for her arrest after she 

absconded during the diversionary period. In its memorandum explaining its 

decision, the trial court pointed out that “[t]he law recognizes probation and 

diversion are to be generally treated the same.” (Record (R.) at 106.) The trial 

court also noted that KRS 533.254(1) applies the provisions of KRS 533.020 to 
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pretrial diversion, which extends 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 provisions of KRS 533.020 relating to the period of 

probation shall, in so far as possible, be applicable to the period of pretrial 

diversion[.]” KRS 533.020(4) reads, in relevant part, that “[u]pon completion of 

the probationary period, probation with an alternative sentence, or the period of 

conditional discharge, the defendant shall be deemed finally discharged, provided 

no warrant issued by the court is pending against him[.]” (Emphasis added.) The 

Kentucky Supreme Court explained:

The language of KRS 533.020(4) is clear: 

probation is automatically discharged 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 

the conditions of probation. A warrant remains 

“pending” until 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).” Whitcomb v. Commonwealth, 424 S.W.3d 417, 420 (Ky. 2014).
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There are very few cases discussing KRS 533.020(4) in the context of 

extending pretrial diversion based on a pending warrant. The unpublished cases

which are on point, however, agree that a pending warrant permits the trial court to 

continue exercising jurisdiction over the case; see, e.g., McElroy v. 

Commonwealth, No. 2005-CA-002547-MR, 2006 WL 3375244 (Ky. App. Nov. 

22, 2006); Kopp v. Commonwealth, No. 2002-CA-001629-MR, 2004 WL 

816441(Ky. App. Apr. 16, 2004).

3

 Furthermore, the statutory language is 

expansive, indicating 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 applying statutes is to give effect to the intent of 

the General 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 Telecom Resources, Inc. v. 

Brown, 354 S.W.3d 542, 551 (Ky. 2011)). 

As the trial court noted in its memorandum, “For the law to be 

interpreted and applied to permit a multiyear absconding without consequence 

would be an absurd result which the General Assembly could not possibly have 

intended when considering how the various relevant statutes are to be applied.” 

(R. at 108.) Despite her nearly complete history of noncompliance, during which

3

 Pursuant to Kentucky Rule of Appellate Procedure (RAP) 41, these unpublished cases are not 

binding authority and are cited only for their illustrative value on the relevant point of law.
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Helm was supervised for approximately fourteen months instead of the five years

to which she agreed, the trial court nonetheless gave her an alternate sentence

which will ultimately result in diverted charges rather than a felony record. We 

discern no abuse of discretion.

III. CONCLUSION

For the foregoing reasons, we affirm the judgment of the Hardin 

Circuit Court.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Sarah D. Dailey

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Christopher Henry

Assistant Attorney General

Frankfort, Kentucky