Many lawyers are familiar with KRS 533.250 and the provisions allowing the diversion of a Class D Felony under Kentucky law. What fewer people will be aware of is that there is also a procedure for a person with a Class C felony to obtain permission from the court to apply for diversion under the same statute. In many counties, this has been handled informally: the prosecutor first agrees to amend Class A, B, or C felony to a Class D felony and then the defendant enters a plea to the amended charge and the person is allowed to enter the standard Class D Pretrial Diversion Program. There is, however, another way for someone charged with a Class C felony to enter a pretrial diversion program: KRS 533.251.
KRS 533.251 primarily exists to create requirements for substance abuse treatment for “felony drug offender[s] and felony offender[s] with a history of substance abuse.” It specifies that every pretrial diversion program shall set as a condition precedent for entry into diversion a substance abuse treatment or program if the defendant would benefit from such a program. KRS 533.251 also creates a provision that allows the court to waive this treatment requirement.
Of interest to us today is KRS 533.251(4). It says in full:
The court may allow a person charged with a Class C felony to participate in a secular or faith-based substance abuse treatment or recovery program under subsection (1) of this section or obtain a waiver under subsection (2) of this section. If the person is successful in the program or is waived, the person shall be eligible for entry into the pretrial diversion program under the same terms, conditions, and limitations as a Class D felon.
Unpacking this, if you have a defendant who is a “felony drug offender” or a “felony offender with a history of substance abuse” and is charged with a Class C felony, you can petition the court for permission for the defendant to participate in a secular or faith-based substance abuse treatment or recovery program. Upon completion, the defendant “shall be eligible for entry into the pretrial diversion program under the same terms, conditions, and limitations as a Class D felon. Further, under KRS 533.251(3) the court can stay proceedings while the defendant is completing the treatment program.
For the brevity of this article, I will not go through the well known requirements for Class D diversion under KRS 533.250 . In addition to all of the statutory requirements, the Supreme Court of Kentucky has ruled in Flynt v. Commonwealth, 105. S.W.3d 415 (Ky. 2003) that separations of powers doctrine requires that the government consent to the defendant participating in diversion before the court can approve a defendant’s application to participate in a pretrial diversion program.
So if the government can still say “no”, what does this provision really do for you? First, if the prosecutor tells you that they can’t divert a Class C felony because the statute won’t allow it, you can point them to this provision. Second, by first petitioning the court for permission to enter a program, and actually completing the rehab program, you create a sense of gravity that may help in actually getting your client into the diversion program. If a judge has, in effect, already approved that your client be granted diversion, the prosecution will have a harder time saying “no” than if you hadn’t asked the court. And surely if you are in a jurisdiction where probation is discretionary, there can be no better signal of what your judge might do at sentencing than if your defendant completes treatment after petitioning the court to do so.
Indeed the formal process of petitioning the court for permission to enter the rehab program will serve to make your client stand out in the mind of the prosecution, likely in a positive way. They will (likely) not have seen anyone petition the court in a similar way. We know from commonsense and neuroscience that human beings love being perceived as being “fair”. (See e.g., Tabibnia, G. & Lieberman, M. D. (2007). Fairness and cooperation are rewarding: Evidence from social cognitive neuroscience. Annals of the New York Academy of Sciences, 1118, 90-101.). A prosecutor that never allows a Class C diversion can’t be fair can they? Merely completing rehab on your own terms doesn’t allow your client to stand out in the way you need to appeal to the prosecution’s inherent sense of fairness. By following the formal process (prosecutors tend to love rules . . . ) you make your client stand out in a way that appeals to a prosecutor’s sense of justice.
Additionally, there may be other strategic considerations in play in filing a request under KRS 533.251. As previously mentioned, the statute authorizes the court to hold the case in abeyance during the time the defendant is attempting treatment prior to diversion. If there are strategic reasons (and your client does otherwise meet the legal requirements) to seek an exceptionally long continuance, a twelve to eighteen month residential rehab program is a way to potentially get it.
Finally, KRS 532.120(6) notes that time spent in a residential substance abuse treatment or recovery facility under KRS 533.251 can be counted toward the calculation of custody credit. If the prosecution objects to diversion after your client completes the program, your judge (who approved the rehab program) can still award you all of the rehab time as custody credit.
Ultimately, it is true that the government can still object to Class C felony diversion. But given all the benefits, and no negatives, there is no compelling reason not to try it.
If you would like to attempt a Class C Felony Diversion, I recommend the following plan:
- Find a quality residential rehabilitation program that is in a good location for your client. Get documents showing the facility and confirm that your client can pay.
- Petition the court under KRS 533.251(4) to allow your client to participate in this program.
- Move the court under KRS 533.251(3) to hold the case in abeyance while the defendant completes the program.
- After the defendant completes the program, file the standard AOC Diversion Application with your Commonwealth Attorney. Note that they have completed a program under KRS 533.251 as ordered by the court.
- If they agree, GREAT, you just diverted a Class C felony.
- If they oppose, proceed in the case as you normally would, knowing that the government has annoyed the court by rejecting your client from diversion and can now grant them custody credit for time in a residential program.
Bradley Clark is a Lexington criminal defense attorney and technology consultant practicing in Lexington, Kentucky. He is the creator of Unconvicted.com, a web app that has helped nearly four-thousand Kentuckians with the Kentucky criminal records expungement process. His work has been featured in USA Today, The Atlantic’s CityLab, and the Wall Street Journal. Mr. Clark is a 2009 graduate of the University of Kentucky College of Law and a 2017 recipient of the College of Law Alumni Association’s Young Professional Award. Prior to opening his firm, Bradley served as one of Kentucky’s ten full-time capital defenders, defending people accused of death-penalty crimes. Mr. Clark lectures on topics including criminal law, forensic science, and expungement.