CRIMINAL LAW: Judge's decision permitting withdrawal of guilty plea after termination of pre-trial diversion program affirmed since no final judgment: COMMONWEALTH v. LOPEZ (COA 4/18/2008)

COM. V. LOPEZ
CRIMINAL LAW:  Judge's decision permitting withdrawal of guilty plea after termination of pre-trial diversion program affirmed since no final judgment
2006-CA-001500-MR
PUBLISHED:  AFFIRMING
PANEL: COMBS PRESIDING; DIXON, KNOPF CONCUR
FLEMING COUNTY
DATE RENDERED: 4/18/2008

Defendant had pled guilty and sentenced which included pre-trial diversion program's placement in Kentucky Se Offender Treatment Program.  Defendant was terminated from SOTP for failing to admit to his involvement in the offenses for which he was indicted and failure to successfully complete a "therapy task" within an allotted 90-day period.

By statute, defendant was then to be sentenced according to his plea. COA affirmed judge's decision permitting withdrawing plea of guilty as he contended the counselors at SOTP wished for defendant to admit to conduct which he claimed to be innocent.  RCr 8.10 allows a defendant to withdraw his guilty plea any time before "judgment" which means "final judgment", and since the diversion program essentially delays the final adjudication, then the withdrawal of the guilty plea is a viable possibility.

Digested by Michael Stevens