Hampton v. Commonwealth2/11/2005
AFFIRMING
Daniel Reese Hampton has appealed from the final judgment and order of imprisonment of the Pike Circuit Court entered on July 3, 2003, which revoked his pretrial diversion and sentenced him, pursuant to his guilty plea, to one year in prison for the offense of flagrant nonsupport. Having concluded that the trial court did not abuse its discretion in sentencing Hampton, we affirm.
Hampton and his former wife, Debra, were divorced in 1992, and pursuant to their decree of dissolution of marriage, Hampton was to pay Debra child support of $265.00 per month for their minor child Brandon. From 1992 to November 2000, Hampton repeatedly failed to pay child support, and the Commonwealth, on Debra's behalf, filed a motion to hold Hampton in contempt of court. Subsequently, on November 17, 2000, the trial court issued a bench warrant for Hampton's arrest, and ordered that he could purge himself of contempt by paying his child support arrearage through November 2000 in full, which totaled $10,918.82.
On June 4, 2001, Hampton was indicted by a Pike County grand jury on one count of flagrant nonsupport, pursuant to KRS 530.050. On April 16, 2002, Hampton was arraigned and pled not guilty. Prior to trial, on July 19, 2002, Hampton signed a motion to enter guilty plea and motion for pretrial diversion of a Class D felon. On that same date, Hampton's guilty plea was accepted and the trial court entered an order on July 22, 2002, granting the pretrial diversion for five years, which was signed by the Commonwealth, Hampton, and his attorney. Hampton's child support arrearage was set at $14,346.35. The terms of the diversion agreement included payment of $200.00 per month on the arrearage, payment of $265.00 per month for current child support, and no commitment of another offense during the period of diversion. Hampton was to remain on pretrial diversion for five years, or until the arrearage was paid in full. In return for his guilty plea, the Commonwealth recommended a one-year sentence of imprisonment, in the event Hampton failed to complete the terms and conditions of the diversion agreement, and the Commonwealth agreed not to oppose Hampton's motion for pretrial diversion.
Because Hampton failed to honor the provisions of the diversion agreement, the Commonwealth, on October 14, 2002, moved the trial court for appropriate action. The trial court held a hearing on December 13, 2002, and in an order dated December 20, 2002, gave Hampton one more chance and stated as follows:
1. The Defendant, Daniel Reese Hampton, shall pay a total of $1,260 in January 2003, to be applied $265.00 to current support and $995.00 to be applied to arrearages. This payment shall be made to the Pike County Attorney's Office, Division of Family Support.
2. He shall continue to make payments of $1,260 each month after January until he has paid the entire arrearage or until further order of this Court.
3. The hearing on the [Commonwealth's] motion to revoke his diversion and sentence him to prison is continued until February 21, 2003 [emphasis added]. After several orders were entered rescheduling the hearing on the Commonwealth's motion to revoke diversion, a hearing was held on May 23, 2003. Hampton's failure to comply with the requirements of the pretrial diversion agreement was undisputed. Hampton stated that he had had no income since July 2002, when he was laid off from his job as a laborer for a gas company, and his failure to comply with the pretrial diversion agreement was due to his inability to work, inability to draw unemployment benefits, and the denial of his Social Security disability claim. Hampton argued that he should not be puni
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