Layw Thomas v. Commonwealth of Kentucky ( 2020 )


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  •                Supreme Court of Kentucky
    2018-SC-000437-MR
    LAYW THOMAS                                                          APPELLANT
    ON APPEAL FROM CHRISTIAN CIRCUIT COURT
    V.                 HONORABLE JOHN L. ATKINS, JUDGE
    NO. 06-CR-00110 & 06-CR-00142
    COMMONWEALTH OF KENTUCKY                                              APPELLEE
    ORDER CORRECTING
    The Opinion of the Court rendered August 20, 2020 is corrected on its
    face by substitution of the attached Opinion in lieu of the original Opinion.
    Said correction does not affect the holding of the original Opinion of the
    Court.
    ENTERED: August 20, 2020
    _______________________________________
    CHIEF JUSTICE
    CORRECTED: AUGUST 20, 2020
    RENDERED: AUGUST 20, 2020
    TO BE PUBLISHED
    Supreme Court of Kentucky
    2018-SC-000437-MR
    LAYW THOMAS                                                           APPELLANT
    ON APPEAL FROM CHRISTIAN CIRCUIT COURT
    V.                    HONORABLE JOHN L. ATKINS, JUDGE
    NO. 06-CR-00110 & 06-CR-00142
    COMMONWEALTH OF KENTUCKY                                               APPELLEE
    OPINION OF THE COURT BY CHIEF JUSTICE MINTON
    VACATING AND REMANDING
    Layw Thomas, a youthful offender, appeals to us as a matter of right1
    from the circuit court’s judgment sentencing him to prison for life plus fifty
    years. At sentencing, the trial court found Thomas ineligible for consideration
    for probation, presumably because Thomas, who was nineteen years old when
    he pleaded guilty, stood convicted of serious crimes that would place him in the
    violent offender category and render him ineligible for probation. Thomas
    raises several issues in this appeal of which we find no merit. But we do find
    merit in a single issue and hold that the violent offender statute is inapplicable
    to youthful offenders for the purposes of the trial court’s consideration of
    probation, even if the youthful offender has reached the age of majority at the
    1   Ky. Const. § 110(2)(b).
    2
    time of sentencing. Consequently, the judgment is vacated, and the case
    returned to the trial court for resentencing consistent with this opinion.
    I.     BACKGROUND AND PROCEDURAL HISTORY
    A. Proceedings leading to the first judgment that was set aside by the
    Court of Appeals.
    For crimes committed when he was seventeen years old, Thomas’s
    charges were brought to the juvenile session of the district court, which
    transferred the charges to circuit court for Thomas’s prosecution as a youthful
    offender under the provisions of KRS2 635.020(4). The charges wound up in
    two separate indictments in circuit court, and, by the time Thomas resolved the
    charges by entering guilty pleas under agreements with the Commonwealth, he
    was a nineteen-year-old adult.
    In one indictment, in which he was represented by Eric Bearden, Thomas
    pleaded guilty to first-degree robbery, first-degree assault, second-degree
    assault, and wanton endangerment in exchange for a recommended twelve-
    year sentence. In the other indictment, in which Thomas was represented by
    William Aldred, Thomas entered an Alford plea3 to murder for a recommended
    sentence of twenty years. This last plea agreement provided that the sentence
    would run concurrently with the sentence in the first-mentioned indictment. In
    short, the Commonwealth agreed to recommend all sentences to run
    concurrently for a total of twenty years’ imprisonment.
    2   Kentucky Revised Statutes.
    3   North Carolina v. Alford, 
    400 U.S. 25
    , 
    91 S. Ct. 160
    , 
    27 L. Ed. 2d 162
    (1970).
    3
    Both plea agreements included a “hammer clause,”4 which stated the
    following: “Failure to appear at sentencing shall result in the Commonwealth
    moving to modify the sentence to the maximum sentence on all charge(s), to
    run consecutively, or to the maximum aggregate allowed by law.” Neither plea
    agreement tallied the number of years a maximum prison sentence might
    contain.
    At the plea colloquy conducted in the case involving the murder charge,
    the Commonwealth recommended a twenty-year sentence, denial of probation,
    and Thomas’s release to remain at home wearing an electronic tagging device.5
    The trial court was also informed that Thomas was cooperating with the
    Commonwealth on matters beyond the scope Thomas’s present charges. The
    trial court expressed reservations about the release terms offered to Thomas
    under the plea agreement but ultimately agreed.6 Thomas went on to answer
    4 A hammer-clause provision is “a provision in a plea agreement which, in lieu
    of bail, allows the defendant, after entry of his guilty plea, to remain out of jail pending
    final sentencing. Generally, a hammer clause provides that if the defendant complies
    with all the conditions of his release and appears for the sentencing hearing, the
    Commonwealth will recommend a certain sentence. But, if he fails to appear as
    scheduled or violates any of the conditions of his release, a specific and substantially
    greater sentence will be sought.” Knox v. Commonwealth 
    361 S.W.3d 891
    , 893–94 (Ky.
    2012).
    5The Commonwealth stated that it already checked to see if this arrangement
    would be possible because Thomas’s mother, with whom Thomas lived, lived in
    Clarksville, Tennessee, and found that the GPS tracking was possible. The prosecutor
    did not ask, and the trial court did not verify, who would supervise Thomas’s release,
    but the trial court directed Thomas to cooperate with the Kentucky Office of Probation
    and Parole.
    6The trial court accepted the term in the plea agreement providing for Thomas’s
    release pending the sentencing hearing after the Commonwealth and Thomas’s
    defense attorney approached the bench and showed the trial court unidentified
    papers—presumably describing Thomas’s cooperation with the Commonwealth—to
    peruse. The record does not identify these papers or disclose their content.
    4
    all the questions asked by the judge during the Boykin7 plea colloquy. Thomas
    confirmed that he understood the terms of the plea agreement, that he
    understood that he would be waiving certain constitutional rights by pleading
    guilty, that he was given no promises to receive a certain sentence if he pleaded
    guilty, and that he was satisfied with counsel’s representation.8
    The trial court accepted Thomas’s plea, finding that it was entered
    willingly, freely, intelligently, and voluntarily. The court then told Thomas that
    he must cooperate with Probation and Parole and come back to court for
    sentencing or he would receive the maximum sentence on both charges, to run
    consecutively. The trial court did not explicitly state the number of years the
    maximum sentence would be if Thomas failed to appear. But it did admonish
    Thomas that he had “a lot riding on this” agreement, to which Thomas replied,
    “You don’t have to worry about that.” The Commonwealth also included a
    verbal warning that he was not to commit any new crimes while on home
    incarceration or it would move to amend the plea agreements to reflect the
    maximum sentences. This condition was not contained in either written plea
    agreement, but Thomas stated that he understood he was not to commit more
    crimes.
    The trial court entered a home incarceration order, and Thomas was
    released with an electronic ankle monitor to live with his mother in Clarksville,
    7   Boykin v. Alabama, 
    395 U.S. 238
    , 
    89 S. Ct. 1709
    , 
    23 L. Ed. 2d 274
    (1969).
    Thomas also provided these affirmative answers when asked these same
    8
    questions by the trial court during the plea colloquy on the other indictment. The only
    substantive difference for the purposes of this case is that Thomas responded “yes”
    when the trial court asked him if he was satisfied with the representation provided to
    him by Bearden.
    5
    Tennessee. Thomas later failed to appear for the final sentencing hearing. He
    cut off the ankle monitor and disappeared.
    When Thomas eventually came before the trial court, his pleas for
    leniency were rejected and the hammer clause provisions were enforced by
    imposing a life sentence with the fifty-year sentence to run consecutively. In
    the judgment, the trial court specifically noted that it sentenced Thomas to
    “Imprisonment because . . . the defendant is not eligible for probation.” The
    trial court did not state the basis for Thomas’s ineligibility. The trial court
    specifically found that the maximum sentences were imposed on account of
    “defendant having failed to appear as ordered for previous sentencing hearing
    in violation of the plea agreement.”9
    After unsuccessful motions for post-conviction relief over the ensuing
    seven years, Thomas, acting pro se, filed a motion for relief under CR10 60.02
    (d), (e) and (f), arguing that the trial court had improperly imposed the hammer
    clauses at sentencing. The trial court denied CR 60.02 relief without a hearing.
    On appeal, the Court of Appeals found merit in Thomas’s argument that
    the trial court erred in sentencing him under the hammer clauses. The Court of
    Appeals reversed the trial court’s denial of CR 60.02 relief, vacated the
    judgment, and remanded the case, finding that the trial court “did not exercise
    its independent judgment as to the proper sentence to be imposed under the
    applicable statutory law and rules of criminal procedure.” The Court of Appeals
    9The trial court arraigned Thomas on new charges of tampering with a prison
    monitoring device, escape and bail jumping following the final sentencing hearing.
    10   Kentucky Rules of Civil Procedure.
    6
    found that the trial court considered only Thomas’s violation of the plea
    agreement and punished Thomas for that violation instead of imposing
    punishment for the underlying crimes.11 Accordingly, the Court of Appeals held
    that Thomas was entitled to have the judgment set aside under CR 60.02(f)12
    because the trial court erred under the substantive rules established in
    McClanahan v. Commonwealth13 and Knox v. Commonwealth14 when it did not
    consider whether the sentences imposed for the underlying crimes were
    11  The Court of Appeals also rejected Thomas’s argument that the trial court
    imposed an illegal sentence when it ordered the fifty-year sentence run consecutively
    to the life sentence, holding that a definite-term sentence may properly run
    consecutively to an indefinite-term sentence when the two sentences arise from
    different cases. Higgins v. Commonwealth, No. 2014-SC-000466-MR, 
    2016 WL 671150
    (Ky. Feb. 18, 2016); Clay v. Commonwealth, No. 2009-SC-000012-MR, 
    2010 WL 2471862
    (Ky. June 17, 2010). The Court of Appeals also rejected the Commonwealth’s
    argument that Thomas’s CR 60.02 motion was procedurally improper. The Court of
    Appeals found that Thomas’s case “presented circumstances of such an extraordinary
    nature” necessary to invoke CR 60.02 relief even if other procedural steps were
    required to be followed by Thomas before bringing the CR 60.02 action. The Court of
    Appeals reasoned that Thomas was entitled to the extraordinary relief provided under
    CR 60.02 for many reasons, the “[m]ost glaring is that Thomas was denied counsel in
    his post-conviction proceedings[,]” despite repeated requests for assistance of counsel.
    12CR 60.02(f) provides the following: “On motion a court may, upon such terms
    as are just, relieve a party or his legal representative from its final judgement, order, or
    proceeding upon the following grounds: . . . or (f) any other reason of an extraordinary
    nature justifying relief.”
    
    13308 S.W.3d 694
    , 702 (Ky. 2010) (reversing the sentence imposed pursuant to
    the hammer clause in the plea agreement because the trial court failed to exercise
    independent discretion in setting the sentence, the sentence was imposed without
    giving due consideration to the presentence report, and the sentence was imposed
    without consideration of “the nature and circumstances of the crime and the history,
    character and condition of the 
    defendant”). 14361 S.W.3d at 899
    (holding that a “judge’s commitment to impose a sentence
    based upon a defendant’s breach of a hammer clause condition, coupled with the
    imposition of that sentence without proper consideration of other relevant factors, is
    an abuse of discretion”).
    7
    appropriate considering all of the other factors required under RCr15 11.02,16
    KRS 532.050,17 and KRS 533.010(2).18
    B. Proceedings leading to the judgment under review by this Court.
    On remand from the Court of Appeals, the trial court denied Thomas’s
    motion for recusal, finding that there was nothing in the record that showed
    bias against Thomas or called into question the trial court’s objectivity or
    impartiality. But the trial court held an evidentiary hearing on Thomas’s
    motion to withdraw his guilty pleas and final sentencing.
    During the evidentiary hearing on the motion to withdraw his guilty
    pleas, Aldred and Bearden, Thomas’s attorneys in the prior prosecutions,
    Rebecca DiLoreto, Director for the Institute on Compassionate Justice, and
    Thomas himself testified.
    Aldred testified about his conduct in representing Thomas before and
    during plea negotiations, Thomas’s cooperation with law enforcement,19 and
    15   Rules of Criminal Procedure.
    16  RCr 11.02(1) provides, in part, that “. . .[b]efore imposing sentence the court
    shall, if the defendant is guilty of a felony, cause a presentence investigation to be
    conducted, examine and consider the report, and furnish a copy of the report to the
    attorney for the Commonwealth and the attorney for the defendant no later than two
    (2) business days prior to final sentencing….”
    17KRS 532.050(1) provides, in part, that “[n]o court shall impose a sentence for
    conviction of a felony, other than a capital offense, without first ordering a presentence
    investigation after conviction and giving due consideration to a written report of the
    investigation . . . .”
    18As this Court explained in Knox, KRS 533.010(2) directs the trial court, not
    only to consider “‘probation, probation with an alternative sentencing plan, or
    conditional discharge’ before imposing a sentence, but to refrain from imposing a
    sentence of imprisonment unless, based upon ‘consideration of the nature and
    circumstances of the crime and the history, character and condition of the defendant,’
    the court is of the opinion that: [one of the conditions provided in (a-c) applies in the
    particular 
    case]”. 361 S.W.3d at 896
    (quoting KRS 533.010(2)).
    19Aldred testified that he was reluctant to go into detail about the negotiations
    involving Thomas’s cooperation with law enforcement because of the risk to Thomas.
    8
    his discussion of the hammer clauses with Thomas before signing the
    agreements.
    Aldred, Thomas’s retained counsel in the second indictment, testified
    that before negotiating the challenged plea, he conducted standard discovery,
    received all the evidence from the Commonwealth, visited the murder scene
    where he interviewed witnesses, and met with Thomas roughly fifteen times.
    Aldred stated that he did not collect Thomas’s mental health or school records.
    Based on his investigation and review, Aldred concluded that Thomas could
    not succeed at trial. He began plea negotiations with the Commonwealth that
    included an offer to cooperate in other criminal investigations.20 Aldred did not
    remember verbatim his discussions with Thomas about the terms of the plea
    agreement, but he met with Thomas three to five times to discuss the plea
    agreement and Thomas’s cooperation with police. Aldred admitted that
    Thomas met with the prosecutor and police without him and that it was
    Thomas who informed Aldred that the Commonwealth might allow him to be
    released to go home before final sentencing.
    As for the discussion with Thomas about the hammer clauses, Aldred
    testified that these clauses are common in plea agreements in the jurisdiction
    where Thomas was prosecuted. Before Thomas accepted the plea bargain,
    Aldred explained to Thomas and his mother the nature of the hammer clause,
    The attorney further remarked that when he first heard that Thomas had cut his ankle
    monitor off and fled, the attorney feared that the “bad guys had gotten him.”
    20 It appears from statements in the record that Thomas received favorable
    terms in exchange for his cooperation with law enforcement. But the record does not
    disclose the nature or extent of Thomas’s cooperation.
    9
    including the potential consequences of violating it. Alfred also testified that he
    emphasized to Thomas that he was getting a favorable sentencing
    recommendation considering the gravity of the underlying charges and that if
    he failed to appear for sentencing or violated any other term of the agreement,
    he could go to prison for life. Aldred further testified that despite his youth,
    Thomas understood the plea agreements and the consequences of breaching
    their terms, and that Thomas could enter a knowing, intelligent, and voluntary
    plea.
    Bearden, Thomas’s appointed counsel in the first indictment, testified
    regarding his representation of Thomas before he entered the first guilty plea.
    The extent of Bearden’s participation in the case is unclear, specifically in
    negotiating the plea agreements, but Aldred took the lead in representing
    Thomas during the plea negotiations. Bearden testified that he did not actively
    participate in the case after Thomas’s family hired Aldred to represent Thomas
    in the murder case. Bearden did not meet with Thomas often, did not
    remember ever meeting with Thomas while he was held in juvenile detention,
    and did not remember participating in the plea negotiations. Like Aldred,
    Bearden confirmed that hammer clauses were standard in local plea
    agreements. Bearden also testified that he did not remember specifically
    discussing the plea agreement with Thomas but stated that it was his practice
    to go over the terms of any plea agreement offered to his clients. Finally,
    Bearden testified that he did not remember Thomas making any statements
    that suggested a lack of understanding of the plea agreements.
    10
    DiLoreto described the process she has routinely undertaken when
    representing juveniles. Although she admitted that she never met Thomas and
    was not involved in negotiating the plea agreements, DiLoreto flatly stated that
    she would not have allowed Thomas to commit to the hammer-clause
    provisions. She based that statement on information she gleaned from her
    review of Thomas’s school and medical records, which disclosed that Thomas
    had a demonstrated history of problems with impulsivity and resistance to
    authority. DiLoreto testified that, had she represented Thomas pre-trial, she
    would have had a more in-depth discussion with him about his goals beyond
    simply being released from jail before sentencing because she did not believe
    Thomas could succeed on release under the circumstances as they existed at
    the time of negotiations.
    Finally, Thomas testified on his own behalf about Bearden’s and Aldred’s
    representation during plea negotiations. Thomas stated that Bearden did not
    discuss the plea agreement with him before the guilty-plea proceeding. Instead,
    Bearden brought the plea agreement to Thomas on the day of the scheduled
    court date and Thomas signed it without discussion. Regarding Aldred’s
    representation, Thomas stated that while he had discussed his desire to go
    home and the possibility of a plea agreement with Aldred a couple of times
    before signing the agreement, Aldred only discussed the specific agreement
    regarding home incarceration for about five minutes before Thomas “appeared
    at the podium.” According to Thomas, Aldred did not review each term of the
    plea agreement with him, and neither Aldred nor Bearden discussed the
    possible consequences of failure to appear for sentencing. Thomas
    11
    acknowledged that the trial court did inform him of the consequences of
    pleading guilty and the effect of the hammer clauses, recalling the trial court’s
    warning that he would receive the maximum sentence if he did not appear for
    sentencing. Thomas testified that he did not understand the magnitude of what
    he was agreeing to when he signed the plea agreements, and he described the
    struggles he faced in his personal life that caused him to flee.21
    At the close of the evidentiary hearing, the trial court denied Thomas’s
    motion to withdraw his guilty pleas. The trial court articulated the standard for
    withdrawing a guilty plea from Edmonds v. Commonwealth22 and found that
    Thomas was aware of the direct consequences at the time he entered the plea.
    The trial court observed that Thomas was not a child but a savvy person who
    knew what he was doing at the time he entered the plea. The trial court entered
    the following order:
    Having conducted a hearing and heard the arguments of counsel and
    considered the case law relevant to this motion, the court finds that
    the defendant’s guilty plea was entered knowingly, intelligently and
    voluntarily, that his lawyers were effective and that he was aware of
    the ramifications of failing to follow his release conditions. The motion
    to withdraw his plea is denied.
    The sentencing hearing immediately followed the denial of Thomas’s
    motion to withdraw his guilty pleas. At the sentencing hearing, Thomas called
    to testify on his behalf: Dr. Lawrence Steinberg, a professor of psychology
    21 Most importantly, Thomas explained that he fled because his mother’s
    landlord threatened to evict her if Thomas did not leave the home. While Thomas’s
    mother and Aldred were attempting to make other arrangements for Thomas to move
    out, Thomas cut off his ankle monitor and fled.
    22   
    189 S.W.3d 558
    , 566 (Ky. 2006).
    12
    specializing in adolescent development; Thomas’s mother; and Brian Westover,
    a family friend.
    Dr. Steinberg described the lack of impulse control common in teenagers,
    a characteristic that persists past the teenage years through ages twenty-two
    or twenty-three. Thomas’s mother, a friend, and Thomas himself all testified
    about Thomas’s character before he committed the offenses, his character now
    that he is in his thirties, and about plans for Thomas’s life if he were to be
    released from prison. Thomas testified again about the problems he faced on
    home incarceration and about his achievements since he has been in prison,
    including completing parenting, anger management, and drug rehabilitation
    courses.
    At the end of the sentencing hearing, the trial court found that the
    original sentence imposed under the hammer clauses was the most appropriate
    sentence. The trial court stated that considering all the evidence presented
    during the evidentiary hearing and the final sentencing hearing, as well as the
    contents of the written PSI and the nature and circumstances of Thomas’s
    charges, history, character and condition, it believed that Thomas’s guilty pleas
    were proper, as was the Commonwealth’s request to enforce the hammer
    clause. The trial court entered the following written order:
    A separate sentencing hearing having been conducted where the
    defendant testified and presented testimony of other witnesses and
    having heard the arguments of counsel, and considered all the statutory
    requirements of sentencing, the court finds that imposition of a sentence
    consistent with the original plea agreement subject to the “hammer
    clause” implications is appropriate. The judgement so stating is
    incorporated here by reference.
    13
    The trial court again imposed a life sentence and a fifty-year sentence, to
    run consecutively. And as in the first judgment, the trial court ruled that it
    sentenced Thomas to “imprisonment because. . . [Thomas] is not eligible for
    probation.” Again, the judgment does not explain the trial court’s basis for its
    determination that Thomas was ineligible for probation, and Thomas’s counsel
    did not raise any question to the determination at that time.
    II.   ANALYSIS
    Thomas raises several issues on appeal. First, he argues that the trial
    court erred in denying his motion to withdraw his guilty plea. Second, he
    argues that the trial court erred in denying his recusal motion. Finally, Thomas
    raises several arguments in support of his assertion that, even if his guilty
    pleas were voluntary, the trial court erred by imposing the challenged sentence.
    The Commonwealth disputes Thomas’s first two claims of error but concedes
    that the trial court erred by failing to consider probation before imposing the
    sentence of imprisonment.
    For the reasons explained below, we find that the trial court did not
    abuse its discretion in denying Thomas’s motion to withdraw his guilty pleas
    nor in denying recusal. But we agree with Thomas, as conceded by the
    Commonwealth, that the trial court erred in failing to consider probation or
    another form of conditional discharge in accordance with KRS 533.010 before
    sentencing Thomas to imprisonment.
    A. The trial court did not err by failing to allow Thomas to withdraw his
    guilty pleas.
    RCr 8.10 provides, in part, that “[a]t any time before judgment the court
    may permit the plea of guilty or guilty but mentally ill, to be withdrawn and a
    14
    plea of not guilty substituted.” We have previously established that the use of
    the word “may” in the statute indicates that a trial court has discretion to
    determine whether to allow a defendant to withdraw a guilty plea, but this
    discretion is not “unfettered.”23 To determine whether the trial court erred
    when it denied Thomas’s motion to withdraw his guilty pleas, we must conduct
    a two-step analysis.
    First, we must determine whether the trial court erred in finding that
    Thomas’s guilty pleas were voluntary.24 This determination is subject to the
    clearly erroneous standard of review,25 meaning that the trial court’s ruling on
    that issue stands if supported by substantial evidence.26 If there is no clear
    error in finding the pleas voluntary, we must then determine if the trial court
    abused its discretion by not allowing Thomas to withdraw his guilty pleas.27 A
    trial court abuses its discretion when it makes a decision that is “arbitrary,
    unreasonable, unfair, or unsupported by sound legal principles.”28
    23   Rodriguez v. Com., 
    87 S.W.3d 8
    , 10 (Ky. 2002).
    24See id.; Bronk v. Commonwelath, 
    58 S.W.3d 482
    , 487–88 (Ky. 2001); Rigdon
    v. Com., 
    144 S.W.3d 283
    , 288 (Ky. App. 2004).
    
    Edmonds, 189 S.W.3d at 566
    ; 
    Rigdon, 144 S.W.3d at 288
    (citing Bronk, 
    58 25 S.W.3d at 489
    (Cooper, J. concurring)).
    26 See, e.g., 
    Edmonds, 189 S.W.3d at 566
    (explaining that to determine whether
    a ruling was made in clear error, the question is “whether the determination was
    supported by substantial evidence”); Bronk, 58 S.W.3d. at 488 (“Our review of the
    totality of the circumstances surrounding Bronk's plea finds substantial evidence that
    supports the trial court's finding.”).
    
    Rigdon, 144 S.W.3d at 288
    (explaining that if the trial court finds that a plea
    27
    was entered voluntarily, it is within the discretion of the trial court to grant or deny a
    motion to withdraw) (internal citations omitted). In contrast, if a trial court finds that a
    plea was involuntary the trial court is required to grant a defendant’s motion to
    withdraw.
    Id. 28Commonwealth v.
    English, 
    993 S.W.2d 941
    , 945 (Ky. 1999) (“The test for
    abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable,
    15
    In Edmonds v. Commonwealth, we explained that:
    A guilty plea is involuntary if the defendant lacked full awareness of the
    direct consequences of the plea or relied on a misrepresentation by the
    Commonwealth or the trial court. . . . A guilty plea is intelligent if a
    defendant is advised by competent counsel regarding the consequences
    of entering a guilty plea, including the constitutional rights that are
    waived thereby, is informed of the nature of the charge against him, and
    is competent at the time the plea is entered.29
    A presumption of voluntariness arises from a properly conducted plea
    colloquy under Boykin v. Alabama,30 but simply looking at the colloquy is not
    enough to determine that a guilty plea is voluntary. Trial courts must further
    consider the totality of circumstances surrounding the plea, an inherently fact-
    sensitive inquiry.31
    The crux of Thomas’s claim of error on the voluntariness issue turns on
    the alleged ineffectiveness of trial counsel. He adds that his pleas were not
    voluntary and intelligent because the prosecutor added terms at the guilty-plea
    hearing. Finally, he argues that cognitive characteristics affecting teenagers
    like him distorted his appreciation of the consequences under the hammer
    clauses of failing to appear for sentencing. Thomas claims that but-for these
    unfair, or unsupported by sound legal principles.”); see also 
    Rigdon, 144 S.W.3d at 288
    (citing Goodyear Tire & Rubber Co. v. Thompson, 
    11 S.W.3d 575
    , 581 (Ky. 2000)).
    
    29 189 S.W.3d at 566
    (citing Brady v. United States, 
    397 U.S. 742
    , 755–56, 
    90 S. Ct. 1463
    , 1472–73, 
    25 L. Ed. 2d 747
    (1970); 
    Boykin, 395 U.S. at 243
    , 89 S.Ct. at
    1712, 
    23 L. Ed. 2d 274
    ).
    
    30 395 U.S. at 242
    –44, 89 S.Ct. at 1711–12, 
    23 L. Ed. 2d 274
    (“A plea of guilty is
    more than a confession which admits that the accused did various acts; it is itself a
    conviction; nothing remains but to give judgment and determine punishment. . .
    ‘Presuming waiver [of several federal constitutional rights that are involved when a
    guilty plea is entered] from a silent record is impermissible.’”).
    31 
    Edmonds, 189 S.W.3d at 566
    ; 
    Rodriguez, 87 S.W.3d at 10
    –11 (citing 
    Brady, 397 U.S. at 749
    ); Leyra v. Denno, 
    347 U.S. 556
    , 558, 
    74 S. Ct. 716
    , 717, 
    98 L. Ed. 948
    (1954); Bronk, 58 S.W.3d. at 486).
    16
    circumstances, he would not have signed a plea agreement that involved a
    hammer clause. We find no merit in any of these arguments.
    With respect to the ineffective assistance of counsel claim, Thomas
    argues specifically that his trial counsels’ performance was deficient because
    they failed to: (1) investigate adequately his background before advising him to
    accept the plea offers; (2) investigate adequately the underlying charges; (3)
    accompany him in all negotiations with the Commonwealth; (4) satisfy their
    duty to explain the terms of the plea agreement in terms he could understand;
    (5) ensure that he could comply with home incarceration; (6) warn against
    accepting a plea deal that contained a hammer clause; and (7) explain the
    sentences that could be imposed under the hammer clause if he violated the
    terms of the plea agreements.
    We considered similar arguments in Bronk v. Commonwealth,32 a case in
    which Bronk was prosecuted in circuit court as a youthful offender for crimes
    he committed in connection with a fire in which a firefighter was killed.33 After
    Bronk failed a polygraph examination that his counsel arranged but failed to
    attend, Bronk confessed to his involvement in the fire. 34 He later agreed to
    plead guilty and testify against a co-defendant in exchange for a recommended
    sentence of twenty-five years’ imprisonment.35 The trial court accepted Bronk’s
    guilty plea, but postponed final sentencing until after the co-defendant’s trial.36
    32   58 S.W.3d. 482.
    33
    Id. at 484. 34
      Id. at 485.
    35
       Id.
    36 
      Id.
    17
    
          Before the co-defendant’s trial, the trial court granted Bronk’s motion to
    appoint new counsel, who in turn moved to withdraw his guilty plea based on
    the assertion that he entered the plea involuntarily because his counsel
    provided ineffective assistance.37 The trial court denied Bronk’s motion to
    withdraw his guilty plea, and he was sentenced in accordance with the plea
    agreement.38
    On appeal to this Court, Bronk argued that the trial court erred in
    denying his motion to withdraw his guilty plea because his first counsel’s
    ineffective assistance rendered his plea involuntary.39 He claimed that his
    retained counsel’s performance was deficient because, among other reasons, he
    failed to conduct any independent investigation of the case and to accompany
    him to the polygraph examination.40
    In denying relief, this Court stated that whenever a defendant disputes
    the voluntariness of a guilty plea based on claims of ineffective assistance of
    counsel, trial courts must apply the following standard:
    In cases where the defendant disputes his or her voluntariness, a
    proper exercise of this discretion requires trial courts to consider the
    totality of the circumstances surrounding the guilty plea and juxtapose
    the presumption of voluntariness inherent in a proper plea colloquy
    with a Strickland v. Washington[41] inquiry into the performance of
    counsel: A showing that counsel's assistance was ineffective in
    enabling a defendant to intelligently weigh his legal alternatives in
    deciding to plead guilty has two components: (1) that counsel made
    errors so serious that counsel's performance fell outside the wide
    range of professionally competent assistance; and (2) that the deficient
    37
    Id. 38
      Id.
    39 
      Id.
    40 
      Id. at 486.
    41   
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984).
    18
    performance so seriously affected the outcome of the plea process that,
    but for the errors of counsel, there is a reasonable probability that the
    defendant would not have pleaded guilty, but would have insisted on
    going to trial. Evaluating the totality of the circumstances
    surrounding the guilty plea is an inherently factual inquiry which
    requires consideration of the accused's demeanor, background and
    experience, and whether the record reveals that the plea was
    voluntarily made.42
    In applying the standard above, this Court found in Bronk that the trial
    court did not abuse its discretion when it found that, despite acknowledged
    errors made by counsel, Bronk’s plea was voluntary.43 The Court found that
    there was substantial evidence to support the trial court’s finding given that,
    among other things, the trial court relied on the testimony of the original judge
    that, despite his awareness of Bronk’s retained counsel’s deficiencies, he still
    believed that Bronk’s plea was voluntarily entered, Bronk was an adult at the
    time he pleaded guilty, Bronk appeared to be “articulate and to have an above-
    average comprehension of the proceedings,” and Bronk was given an
    opportunity during the plea colloquy to retract his plea and inform the court
    that he was dissatisfied with his retained counsel.44 Furthermore, the Court
    emphasized that Bronk faced life in prison and the plea agreement involved a
    more lenient sentence and earlier parole-eligibility date.45
    Like the defendant in Bronk, Thomas was transferred to circuit court to
    be tried as a youthful offender but entered the guilty pleas after he reached the
    age of majority. Thomas also points to failures by his trial counsel like defense
    42   Bronk, 58 S.W.3d. at 486–87.
    43
    Id. at 487–88. 44
       Id.
    45 
      Id. at 488.
    19
    
    counsel’s alleged failures in Bronk. Thomas claims that: Bearden’s conduct was
    deficient because he failed to represent him during plea negotiations and to
    appear to represent him during the original sentencing hearing; Aldred’s
    conduct was deficient because he failed to accompany Thomas to all plea
    negotiations with the Commonwealth;46 and both Bearden and Aldred failed to
    adequately investigate Thomas’s background and the circumstances
    surrounding the underlying charge.47
    Thomas also raised claims of deficient representation by counsel that are
    novel in comparison to the claims made in Bronk. Thomas claims that his
    attorneys had a duty to communicate with him in a different way than they
    would with adult offenders because he was proceeding in the case as a
    youthful offender, was only nineteen at the time his accepted the plea bargains
    and had ADHD and a documented history of conflict with authority. Thomas
    further argues that these same characteristics required his trial counsel not
    only to ensure that he had adequate guidance while on home incarceration
    but, more importantly, to refrain from advising Thomas to accept a plea
    bargain that involved a hammer clause. In support of these arguments,
    Thomas relies on DiLoreto’s testimony48 and on the Supreme Court’s decisions
    46Bronk claimed that his trial counsel was ineffective because he failed to
    accompany Bronk when he went to take a polygraph examination at the police
    department. Bronk, 58 S.W.3d. at 486.
    47 Bronk also claimed that his trial counsel “failed to interview witnesses or
    otherwise investigate the case. . . .[and] to review with Bronk the discovery materials
    provided by the Commonwealth.”
    Id. 48
    Specifically, DiLoreto’s testimony regarding how the law applies differently to
    juveniles based on the brain science on juvenile cognitive development, and regarding
    how Supreme Court Rules (SCR) 3.130(1.4) and 3.10(1.4) apply to require attorneys to
    20
    in Roper v. Simmons,49 Graham v. Florida,50 Miller v. Alabama,51 and
    Montgomery v. Louisiana.52
    Thomas argues that Diloretto’s testimony and the decisions in Roper and
    the cases following it indicate that the law requires youths to be treated
    differently in some circumstances to comport with the Eighth53 and
    Fourteenth54 Amendments of the United States Constitution. We disagree with
    Thomas that this is one of those cases. Here, based on the totality of the
    circumstances surrounding Thomas’s guilty pleas, we find that Thomas’s case
    is more akin to Bronk and supports the trial court’s finding that Thomas’s
    pleas were voluntarily entered. We acknowledge that, at the very least,
    Bearden’s apparently lackadaisical approach may have fallen “outside the wide
    range of professionally competent assistance.”55 We further acknowledge that
    communicate with client’s in different way when the client suffers from “diminished
    capacity,” including that of which is due to age.
    
    49543 U.S. 551
    , 578, 
    125 S. Ct. 1183
    , 1200, 
    161 L. Ed. 2d 1
    (2005) (ruling that
    imposing the death penalty on offenders who are convicted of crimes committed when
    they were under the age of eighteen is unconstitutional under the Eighth and
    Fourteenth Amendments).
    50  
    560 U.S. 48
    , 82, 
    130 S. Ct. 2011
    , 2034, 
    176 L. Ed. 2d 825
    (2010) (ruling that
    the Eighth and Fourteenth Amendments prohibit the sentence of life without the
    possibility of parole for juvenile offenders who did not commit homicide).
    51 
    567 U.S. 460
    , 479, 
    132 S. Ct. 2455
    , 2469, 
    183 L. Ed. 2d 407
    (2012) (ruling
    that the Eighth and Fourteenth Amendments prohibits any sentencing scheme that
    mandates life without the possibility of parole on any juvenile offender).
    52   
    136 S. Ct. 718
    , 736 
    193 L. Ed. 2d 599
    (2016) (holding that Miller is retroactive).
    53 U.S. CONST. amend. VIII (“Excessive bail shall not be required, nor excessive
    fines imposed, nor cruel and unusual punishments inflicted.”).
    54 U.S. CONST. amend. XIV (“No State shall make or enforce any law which shall
    abridge the privileges or immunities of citizens of the United States; nor shall any
    State deprive any person of life, liberty, or property, without due process of law; nor
    deny to any person within its jurisdiction the equal protection of the laws”).
    55
    Id. 21
    Thomas alleges additional instances of ineffective assistance of counsel that are
    different than the claims presented in Bronk. But we cannot say, even taken
    together, that Bearden’s and Aldred’s performance “so seriously affected the
    outcome of the plea process that, but for the[se] errors . . . there is a
    reasonable probability” that Thomas would not have pleaded guilty but instead
    insisted on going to trial.56
    Thomas was not a juvenile when he entered these guilty pleas. Bearden
    and Aldred both testified that Thomas seemed like an intelligent man, and that
    he never did or said anything that indicated that he could not fully understand
    the terms of the plea agreements. Aldred took the lead in representing Thomas
    in the plea negotiations for both indictments, which resulted in a potentially
    lenient disposition for Thomas in both cases. Thomas was competent enough to
    negotiate, alone, with the Commonwealth in a way that convinced the
    prosecutor to agree to allow him to return to his mother’s home in Clarksville,
    Tennessee, before final sentencing while still recommending a total sentence of
    twenty years. And while it is disputed that Thomas was explicitly told that if he
    did not appear for sentencing the hammer-clause provisions in the plea
    agreements could cause him to be sentenced to life plus 50 years, Aldred
    testified that he emphasized the hammer-clause provision to Thomas before he
    entered the plea and explained that it was crucial that Thomas show up for
    sentencing. Even if Thomas did not know he could receive a life sentence plus
    fifty years, he knew that he received a very favorable recommendation from the
    56   Bronk, 58 S.W.3d. at 486–87.
    22
    Commonwealth and he knew that if he did not follow the terms of both the
    written agreement and those explained to him orally during the guilty-plea
    hearing, that he could receive a life sentence.
    Thomas also argues that even if his guilty plea were voluntarily entered,
    the trial court still abused its discretion by denying his motion to withdraw the
    pleas based on: the disparity between the sentence offered in exchange for the
    pleas and the sentence actually imposed; the ineffective assistance of counsel
    in failing to investigate his case and advise him of the consequences of violating
    the plea agreement; and the ultimate imposition of a “grossly unfair sentence,”
    especially considering the “great benefit” Thomas provided through his
    cooperation with the Commonwealth and law enforcement.57
    As stated above, a trial court abuses its discretion when it renders a
    decision that is “arbitrary, unreasonable, unfair, or unsupported by sound
    legal principles.”58 These arguments are essentially the same as the arguments
    addressing the voluntariness issue, and we reject them for the same reasons.59
    Accordingly, we find that the trial court did not abuse its discretion by denying
    Thomas’s motion to withdraw his guilty pleas.
    57The record does not reflect the extent of Thomas’s cooperation with law
    enforcement and the Commonwealth.
    58   
    English, 993 S.W.2d at 945
    ; see also 
    Rigdon, 144 S.W.3d at 288
    .
    59See Bronk, 58 S.W.3d. at 486–87; see also Simpson v. Commonwealth, No.
    2007-SC-000623-MR, 
    2009 WL 735878
    *1, *6–*7 (Ky. Mar. 19, 2009) (rejecting
    defendant’s argument that the court abused its discretion in denying his motion to
    withdraw his voluntary guilty plea).
    23
    B. The trial court did not err in denying Thomas’s motion asking the
    judge to recuse.
    Thomas further argues that the trial court erred by denying his motion
    for recusal. Thomas asserts that considering the Court of Appeals’ holding that
    the trial court erroneously imposed the first sentence based solely on the
    hammer clause instead of considering all the factors required by law, the same
    trial court “could not preside over the resentencing without letting that bias
    affect its decisions or appearing to be partial to the hammer clause sentence.”
    In support of this argument, Thomas relies primarily on the trial court’s
    earlier judgment and its pointed statements made to Thomas and Thomas’s
    mother from the bench. Thomas cites to SCR 4.300 Canon 3E(1)(a) of the
    Judicial Code of Ethics, KRS 26A.015, and supporting case law for rules
    governing recusal. In response, the Commonwealth argues that relying on an
    adverse ruling in prior proceedings is not enough to satisfy the “onerous”
    burden of proof required for recusal of a trial judge and that the record
    discloses no bias against Thomas. We agree with the Commonwealth that
    Thomas did not satisfy his burden of showing that the trial court should have
    recused and find no abuse of discretion in the trial court’s denial of that motion
    to recuse.
    Supreme Court Rule (SCR) 4.300, Canon 3E of the Judicial Code of
    Conduct, provides that “[a] judge shall disqualify himself or herself in a
    proceeding in which the judge's impartiality might reasonably be questioned,
    including but not limited to instances [where] the judge has a personal bias or
    prejudice concerning a party or a party's lawyer, or personal knowledge of
    disputed evidentiary facts concerning the proceeding[.]” “The burden of proof
    24
    required for recusal of a trial judge is an onerous one. There must be a showing
    of facts ‘of a character calculated seriously to impair the judge's impartiality
    and sway his judgment.’”60 A court’s denial of a motion for recusal is reviewed
    for abuse of discretion, which again is defined as “‘whether the trial judge’s
    decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
    principles.’”61
    In Minks v. Commonwealth, this Court upheld a trial court’s denial of the
    defendant’s recusal motion, which he filed before a hearing on his motion to
    suppress evidence obtained upon execution of a search warrant signed by the
    same judge.62 And in Dunlap v. Commonwealth, this Court upheld the trial
    court’s denial of the defendant’s recusal motion despite the fact that the judge
    previously presided over a custody case involving the victims of the defendant’s
    crimes.63 In Dunlap, the Court distinguished the circumstances in that case
    from those present in Sommers v Commonwealth,64 a case in which this Court
    held that a judge should have recused himself from a murder case in which he
    had previously presided over the guardianship case that placed the murder
    victims in the custody of the defendant, and the judge had accessed media
    outlets to defend his custody decision after the murders were committed.65
    Dunlap v. Commonwealth, 
    435 S.W.3d 537
    , 590 (Ky. 2013) (quoting Stopher v.
    60
    Commonwealth, 
    57 S.W.3d 787
    , 794 (Ky. 2001)).
    61
    Id. at 587
    (quoting 
    English, 993 S.W.2d at 945
    ).
    62   
    427 S.W.3d 802
    , 806 (Ky. 2014).
    63   
    Dunlap, 435 S.W.3d at 590
    .
    64   
    843 S.W.2d 879
    (Ky. 1992).
    65   
    Dunlap, 435 S.W.3d at 591
    .
    25
    We agree with Thomas that the trial court’s on-the-record statements
    that were directed at Thomas’s mother reflected the trial court’s irritation over
    Thomas’s failure to appear for final sentencing. But it is clear from the
    authorities cited above that this Court has been reluctant to disqualify a judge
    unless the judge’s conduct is egregious, or the claims of impartiality or bias are
    based on more than an adverse ruling. We disagree that the trial court’s angry
    words or previous sentencing decision were evidence that the judge was
    incapable of presiding fairly and impartially in the present matter. And we
    reject Thomas’s argument that the trial court’s failure to embrace his
    arguments in mitigation of punishment raises legitimate concern over the trial
    court’s lack of impartiality. A trial court is not required to impose a more
    lenient sentence simply because evidence is presented that could justify
    mitigation.66 The trial court is only required to give due consideration to such
    mitigating evidence.
    C. The trial court erred in sentencing Thomas, a youthful offender,
    without first considering probation or another form of conditional
    discharge as a sentencing option.
    Finally, Thomas offers four arguments in support of his assertion that,
    even if his guilty pleas were voluntary, the trial court erred by denying his
    request to impose the original twenty-year sentence. First, Thomas argues that
    the trial court violated Kentucky’s Juvenile Code and KRS 533.010 in
    determining the sentence. Second, Thomas argues that the trial court violated
    KRS 532.110 in determining the sentence. Third, Thomas argues that the trial
    66 Prater v. Commonwealth, 
    421 S.W.3d 381
    , 384 (Ky. 2014) (explaining that
    sentencing is a discretionary function of the trial court and therefore subject to review
    for abuse of discretion).
    26
    court ignored this Court’s holdings in Knox and McClanahan and KRS 533.010
    by again imposing the hammer-clause sanction in lieu of a sentence. Finally,
    Thomas argues that even if the trial court did not violate Knox and
    McClanahan, considering all the mitigating evidence presented in favor of
    imposing the sentence available under the original terms of the plea agreement,
    the trial court still abused its discretion by imposing the maximum sentence
    available under the law. Thomas also requests that this court hold that a
    hammer clause that results in a maximum sentence for a youthful offender
    violates state and federal constitutions.
    We find merit only in Thomas’s first argument and agree that the trial
    court erred by failing to follow the directives of Kentucky’s Juvenile Code by
    imposing a sentence of imprisonment in violation of KRS 533.010, which
    requires consideration of probation, conditional discharge, or an alternative
    sentence before imposing imprisonment. It appears that the trial court and
    counsel for both sides—who failed to raise the issue before the trial court—
    erroneously assumed Thomas was ineligible for probation.
    Thomas primarily relies on KRS 533.010, KRS 600.010(2) and
    KRS 640.030 to argue that the trial court violated Kentucky’s Juvenile Code.
    Specifically, Thomas argues, and the Commonwealth agrees, that the special
    probation rules under KRS 635.020(4), KRS 640.040(3) and Merriman v.
    Commonwealth67 required the trial court, before imposing the challenged
    sentence, to determine whether probation or another form of alternative
    67   
    265 S.W.3d 196
    , 198–201 (Ky. 2008).
    27
    sentence was appropriate for Thomas. The trial court did not consider these
    alternative sentencing options because it found that “the Defendant is not
    eligible for probation,” but the trial court does not state for the record its
    reason for finding Thomas ineligible. And even though Thomas himself failed to
    raise the issue of probation eligibility before the trial court, sentencing issues
    may be raised for the first time on appeal.68
    KRS 533.010(1) provides that “[a]ny person who has been convicted of a
    crime and who has not been sentenced to death may be sentenced to
    probation, probation with an alternative sentencing plan, or conditional
    discharge as provided in this chapter.” KRS 533.010(2) provides that “[b]efore
    imposition of a sentence of imprisonment, the court shall consider probation,
    probation with an alternative sentencing plan, or conditional discharge. Unless
    the defendant is a violent felon as defined in KRS 439.3401 or a statute
    prohibits probation . . . .”69 And KRS 533.060(1) provides, in part, that “[w]hen
    a person has been convicted of an offense or has entered a plea of guilty to an
    offense classified as a Class A, B, or C felony and the commission of the offense
    involved the use of a weapon from which a shot or projectile may be discharged
    
    68 Jones v
    . Commonwealth, 
    382 S.W.3d 22
    , 27 (Ky. 2011) (explaining that the
    statement made in Cummings v. Commonwealth, 
    226 S.W.3d 62
    , 66 (Ky. 2007), that
    sentencing is jurisdictional was “simply [] a manifestation of the non-controversial
    precept that an appellate court is not bound to affirm an illegal sentence just because
    the issue of the illegality was not presented to the trial court); Hughes v.
    Commonwealth, 
    875 S.W.2d 99
    , 100 (Ky. 1994) (finding that it could still consider
    appellant’s argument that the trial court was required to consider appellant’s request
    for probation under KRS 533.010 before sentencing him pursuant to his unconditional
    plea agreement even though the appellant did not raise this argument before the trial
    court because “all defendants have the right to be sentenced after due consideration of
    all applicable law[]”) (citations omitted).
    69   (emphasis added).
    28
    that is readily capable of producing death or other serious physical injury, the
    person shall not be eligible for probation . . . .”
    These statutes establish that a trial court must consider probation for an
    adult defendant before imposing a sentence of imprisonment unless: (1) the
    defendant has been sentenced to death;70 (2) the crime of which the defendant
    stands convicted falls within one of the categories outlined in KRS 533.060; or
    (3) the defendant is considered a violent offender as defined in KRS 439.3401.71
    But this standard is different when the defendant being sentenced committed
    the underlying crimes before he or she reached the age of majority and was
    transferred to circuit court to be prosecuted as a youthful offender.72
    The crimes for which Thomas entered pleas would certainly render him
    ineligible for probation consideration by operation of either KRS 533.060(1) or
    KRS 533.010(2) if the crimes had been committed after he reached the age of
    KRS 533.010(1) (“Any person who has been convicted of a crime and who has
    70
    not been sentenced to death may be sentenced to probation. . .”).
    71KRS 533.010(2). KRS 439.3401 defines a “violent offender” as, among other
    things, “any person who has been convicted of or pled guilty to the commission of: (a)
    A capital offense; (b) A Class A felony;(c) A Class B felony involving the death of the
    victim or serious physical injury to a victim. . . .”
    72 KRS 635.020(4) provides that “[a]ny other provision of KRS Chapters 610 to
    645 to the contrary notwithstanding, if a child charged with a felony in which a
    firearm, whether functional or not, was used in the commission of the offense had
    attained the age of fourteen (14) years at the time of the commission of the alleged
    offense, he shall be transferred to the Circuit Court for trial as an adult if, following a
    preliminary hearing, the District Court finds probable cause to believe that the child
    committed a felony, that a firearm was used in the commission of that felony, and that
    the child was fourteen (14) years of age or older at the time of the commission of the
    alleged felony. If convicted in the Circuit Court, he shall be subject to the same
    penalties as an adult offender, except that until he reaches the age of eighteen (18)
    years, he shall be confined in a facility or program for juveniles or for youthful
    offenders, unless the provisions of KRS 635.025 apply or unless he is released
    pursuant to expiration of sentence or parole, and at age eighteen (18) he shall be
    returned to the sentencing Circuit Court for proceedings consistent with KRS
    640.030(2).”
    29
    majority. But, as the parties agree, even though Thomas was transferred to the
    circuit court to be tried as an adult under KRS 635.020, he was still entitled to
    the protections provided for youthful offenders under Kentucky’s Juvenile
    Code.73 With respect to KRS 533.060, Kentucky’s Juvenile Code explicitly
    states that the probation limitations contained in KRS 533.060(1) are
    inapplicable to youthful offenders like Thomas.74 With respect to KRS
    533.010(2), while none of the provisions of Kentucky’s Juvenile Code explicitly
    states that KRS 533.010(2) is inapplicable to youthful offenders, based on our
    holdings in Merriman v. Commonwealth,75 Buckner v. Commonwealth,76 and
    Edwards v. Harrod,77 it is perhaps unclear whether the statute is applicable to
    youthful offenders who are sentenced after they reach age eighteen.78
    73 KRS 600.020(72) defines a “youthful offender” as “any person regardless of
    age, transferred to Circuit Court under the provisions of KRS Chapter 635 or 640 and
    who is subsequently convicted in Circuit Court.”
    74  KRS 640.040(3) provides that “No youthful offender shall be subject to
    limitations on probation, parole or conditional discharge as provided for in KRS
    533.060.”
    
    75 265 S.W.3d at 198
    –201.
    76   No. 2006–SC–000479–MR, 
    2008 WL 5051578
    (Ky. Nov. 26, 2008).
    77   
    391 S.W.3d 755
    , 760–62 (Ky. 2013).
    78 KRS 640.030 provides, in part, that “. . . any sentence imposed upon the
    youthful offender shall be served in a facility or program operated or contracted by the
    Department of Juvenile Justice. . . If an individual sentenced as a youthful offender
    attains the age of eighteen (18) prior to the expiration of his sentence, and has not
    been probated or released on parole, that individual shall be returned to the
    sentencing court. At that time, the sentencing court shall make one (1) of the following
    determinations: (a) Whether the youthful offender shall be placed on probation or
    conditional discharge; (b) Whether the youthful offender shall be returned to the
    Department of Juvenile Justice to complete a treatment program, which treatment
    program shall not exceed the youthful offender's attainment of the age of eighteen (18)
    years and five (5) months . . . or (c) Whether the youthful offender shall be
    incarcerated in an institution operated by the Department of Corrections[.]”
    30
    As indicated above, Thomas argues, and the Commonwealth agrees, that
    this case should be remanded for resentencing because the trial court was
    required under KRS 533.010(2), Merriman, Buckner, and Edwards to consider
    whether probation or another form of conditional discharge was an option for
    Thomas before imposing a sentence of imprisonment. While we agree with the
    parties that our decisions in Merriman, Buckner, and Edwards are relevant and
    instructive, these cases did not decide the precise issue now before us: whether
    the probation limitation for violent offenders contained in KRS 533.010(2)
    applies to youthful offenders sentenced after they reach the age of majority? As
    explained below, we now hold, consistent with our holdings in Merriman,
    Buckner, and Edwards, that considering “statutory interpretation, logic, and
    belief in the good sense of the legislature,”79 the violent offender statute is not
    applicable to youthful offenders who are convicted or sentenced after they
    reach the age of majority.
    In Merriman v. Commonwealth, we held that the violent offender statute
    cannot be used to render youthful offenders ineligible for probation because
    the youthful-offender sentencing scheme contained in KRS 640.030
    contemplates that the offenders will be brought back to court for “resentencing”
    upon reaching age eighteen.80 In Merriman, two youthful offenders were
    convicted of the crimes charged, committed to the Department of Juvenile
    Justice in accordance with KRS 640.030(2), and thereafter brought back to the
    79   
    Merriman, 265 S.W.3d at 201
    .
    80
    Id. at 198–201.
                                              31
    
    trial court for resentencing once they reached the age of majority.81 In
    determining whether the violent-offender statute should have been applied to
    render the respective offenders ineligible for probation at their resentencing
    hearings, we reviewed relevant provisions of Kentucky’s Juvenile Code.
    We explained in Merriman that Kentucky’s Juvenile Code was enacted to
    provide rules for treatment of individuals who commit crimes before they reach
    the age of majority and discussed multiple provisions contained in KRS
    Chapter 640 that apply to youthful offenders who are transferred to the Circuit
    Court to be tried as an adult.82 The Court placed emphasis on the resentencing
    scheme required when a juvenile who has been tried and sentenced as an
    adult:
    to be housed in a juvenile detention facility until his sentence expired,
    he was probated or paroled, or he reached his 18th birthday. If the
    juvenile turned 18 before expiration, probation, or parole, then the
    sentencing court had to make further adjudications, which in
    common parlance came to be called “resentencing.” In fact, the length
    and all other conditions of the Youthful Offender's sentence remain
    the same except for whatever statutory determinations the trial court
    makes at that review. The court's options at that point are to place the
    Youthful Offender on probation or conditional discharge, incarcerate
    him in adult prison, or return him to the Department of Juvenile
    Justice to complete a treatment program of up to five months. Under
    the latter option, the youthful offender again returns to the court after
    completing a treatment program for it to determine whether to
    probate, conditionally discharge, or incarcerate.83
    81
    Id. at 197–98.
    
    Id. at 198–201. 
    The Merriman court also noted that KRS Chapter 640 must
    82
    be read with the legislature’s intent in mind: “[P]romoting protection of children”; that
    “[a]ny child . . . under KRS Chapters 600 to 645 . . . shall have a right to treatment
    reasonably calculated to bring about an improvement in his condition”; “providing
    each child a safe and nurturing home”; and that “all parties are assured prompt and
    fair hearings,” plus other specific intentions.”
    Id. at 199
    (citing KRS 600.010).
    83
    Id. at 198–99
    (explaining KRS 640.030 (1–3)).
    32
    Based on the language of KRS 640.030(2), we held that the violent
    offender statute “cannot act to prevent consideration of probation or
    conditional discharge on the youthful offender's 18th birthday.”84
    A short time after Merriman was decided, in Buckner, an unpublished
    opinion, this Court relied on Merriman to find that a defendant who was
    charged and convicted for crimes committed when he was seventeen years old
    was not subject to the violent offender statute and held that he was entitled to
    a new sentencing hearing “in accordance with KRS 640.030 and Merriman.”85
    And then in Edwards we considered Merriman to determine “whether youthful
    offenders who are convicted and sentenced in circuit court can also be
    classified as violent offenders subject to the parole-eligibility restrictions
    imposed by Kentucky's Violent Offender Statute.”86 In Edwards we found that
    Merriman “does not extend to the parole limitations of the Violent Offender
    Statute because of the difference between probation and parole” and because
    the General Assembly explicitly intended for the violent offender statute’s
    parole restrictions to apply to certain youthful offenders.87
    We acknowledge that there are several factual differences between
    Merriman and Thomas’s case, and that the “resentencing” scheme in KRS
    640.030(2) does not apply in the same way to Thomas’s case as it did to the
    defendants in Merriman. Thomas is considered a youthful offender under KRS
    84
    Id. at 200. 85 2008
    WL 5051578 at *1, *12.
    
    86 391 S.W.3d at 756
    .
    87
    Id. at 756, 758–60. 33 600.020(72)
    for the purposes of underlying charges and was transferred to the
    circuit court to be tried as an adult.88 But Thomas was nineteen years old
    when he entered his guilty pleas and was sentenced. Unlike the defendants in
    Merriman, he was not transferred to the Department of Juvenile Justice to
    await resentencing under KRS 640.030(2). This does not mean that Merriman
    is inapplicable here. In fact, we ruled in Buckner that a defendant in
    circumstances very similar to Thomas’s was entitled to resentencing and
    probation consideration under Merriman and later cited Merriman in support of
    its statement in Edwards that “[a]lthough the legislature did not intend the
    probation constraints on violent offenders to apply to youthful offenders, it did
    intend to subject youthful offenders to the parole restrictions of the Violent
    Offender Statute.” As such, we must determine whether the violent offender
    statute is applicable to youthful offenders like Thomas who were sentenced
    after they reached the age of majority.
    There are other subsections of KRS 640.030, as well as other provisions
    of KRS Chapter 640 that were not relevant in Merriman that indicate that the
    legislature intended for probation to be available as a sentencing option for
    youthful offenders, even when such offenders qualify as a violent offender and
    are sentenced after they reach the age of majority. Again, under KRS
    640.030(2), when a youthful offender reaches the age of majority and is
    returned to the trial court for resentencing, “the length and all other conditions
    88 KRS 600.020(72) defines a “youthful offender” as “any person regardless of
    age, transferred to Circuit Court under the provisions of KRS Chapter 635 or 640 and
    who is subsequently convicted in Circuit Court.”
    34
    of the Youthful Offender's sentence remain the same except for whatever
    statutory determinations the trial court makes at that review.” The
    “determinations” available for youthful offenders who reach the age of majority
    are “to place the Youthful Offender on probation or conditional discharge,
    incarcerate him in adult prison, or return him to the Department of Juvenile
    Justice to complete a treatment program of up to five months.” KRS 630.030(3)
    provides that those youthful offenders who have “attained the age of eighteen
    (18) years but less than eighteen (18) years and five (5) months prior to
    sentencing” shall also be returned for resentencing when they are eighteen
    years and five months old, and the trial court is again directed to make the
    same “determinations,” including whether the defendant is a good candidate
    for probation.89
    Also, KRS 640.075(1) provides that youthful offenders who were
    committed to the Department of Corrections under KRS 640.030(2)(c) may,
    until age twenty-one, remain in the custody of the Department of Juvenile
    Justice under some circumstances. KRS 640.075(4) then provides that the
    “youthful offender whose custody has been retained under subsection (1) of
    this
    89 KRS 640.030(3) (explaining that the youthful offender who was sentenced
    after he turned 18 “shall be returned to the sentencing court upon attaining the age of
    eighteen (18) years and five (5) months if that individual has been sentenced to a
    period of placement or treatment with the Department of Juvenile Justice. The court
    shall have the same dispositional options as currently provided in subsection (2)(a)
    and (c) of this section[]”). Again, the determinations to be made by the sentencing
    court under KRS 640.030(2)(a) & (c) are “[w]hether the youthful offender shall be
    placed on probation or conditional discharge[]” or “[w]hether the youthful offender
    shall be incarcerated in an institution operated by the Department of Corrections[.]”
    35
    section . . . may, on one (1) occasion and after the completion of a minimum
    twelve (12) months additional service of sentence, petition the sentencing
    Circuit Court for reconsideration of probation and, except as provided in KRS
    439.3401, may be considered for early parole eligibility.”
    While it is true that the clear mandates of the resentencing scheme
    provided under KRS 640.030 would not be frustrated to the same extent as it
    would have been by an alternate holding in Merriman if this Court were to rule
    that the violent offender statute does apply to youthful offenders such as
    Thomas, we still think that the General Assembly intended for trial courts to
    consider whether youthful offenders are viable candidates for probation even if
    such individuals qualify as violent offenders.
    First, as seen above, there are multiple provisions of KRS Chapter 640
    that provide for trial courts that are sentencing youthful offenders to consider
    probation as a sentencing option. Nowhere in the Juvenile Code does the
    General Assembly place a limit on this option based on the violent offender
    statute. In contrast, the General Assembly explicitly states that the limitations
    provided under the violent offender statute do apply to youthful offenders’
    parole eligibility. While this citation to the violent offender statute is not
    determinative, it does indicate that the General Assembly was cognizant of the
    potential applicability of the violent offender statute to certain provisions of the
    Juvenile Code and chose not to provide that the violent offender statute applies
    to youthful offenders’ probation eligibility, even after this Court’s rulings in
    Merriman, Buckner, and Edwards.
    36
    Second, even though Thomas, because he was over the age of eighteen
    years and five months at the time he was initially sentenced, was not first
    committed to the Department of Juvenile Justice and then brought back for
    resentencing in accordance with KRS 640.030(1) or (3), he was sentenced as a
    youthful offender in the first instance. While the language of KRS 640.030(3)
    does contemplate the return of a defendant for resentencing, it also directs,
    without exception, for trial courts to make the same “determinations” provided
    under (2)(a) & (c), including whether the defendant is a good candidate for
    probation. It seems to us illogical to assume that because a youthful offender
    was age eighteen years and five months, or older, and thus was not committed
    to the Department of Juvenile Justice under KRS 640.030(1) or (3) in the first
    instance, that he is not entitled to the same probation consideration that is
    guaranteed to a youthful offender who was sentenced before he reached age
    eighteen years and five months.
    Finally, this holding seems to best represent the intent of the General
    Assembly in enacting the Juvenile Code. KRS 600.010(2)(a) provides, in part,
    that “KRS Chapters 600 to 645 shall be interpreted to effectuate the . . .
    express legislative purposes[, including that] [t]he Commonwealth shall direct
    its efforts to promoting protection of children[.]” Similar to the consequences of
    an alternate holding discussed in the previous paragraph, it also seems to us
    illogical to hold that this Court’s decision in Merriman was correctly made in
    light of this purpose, but this purpose would not be equally served by entitling
    those youthful offenders who are sentenced after they reach age eighteen years
    and five months the same protection provided in Merriman. Also, KRS
    37
    600.010(2)(f) further provides that “KRS Chapter 640 shall be interpreted to
    promote public safety and the concept that every child be held accountable for
    his or her conduct through the use of restitution, reparation, and sanctions, in
    an effort to rehabilitate delinquent youth.” We emphasize that today we merely
    hold that trial courts must consider probation for youthful offenders who also
    qualify as violent offenders before committing them to the Department of
    Corrections. This Court’s current holding does not undermine the trial court’s
    ample discretion to hold youthful offenders fully accountable for their actions
    but simply provides for an additional avenue for rehabilitating delinquent
    youth.
    III. CONCLUSION
    In sum, we hold that Kentucky’s Juvenile Code and this Court’s holdings
    in Merriman, Buckner, and Edwards support the conclusion that the violent
    offender statute is not applicable to youthful offenders for purposes of
    consideration of probation, even if they are sentenced after they reach age
    eighteen years and five months. Because the trial court here sentenced Thomas
    to a term of imprisonment under the assumption that Thomas was ineligible
    for probation, the trial court erred in failing to consider whether probation or
    other forms of conditional discharge as possible alternatives. So, we are
    constrained to vacate the judgment in this case and remand to the trial court
    once again to resentence Thomas in accordance with this opinion.
    All sitting. All concur.
    38
    COUNSEL FOR APPELLANT:
    Kathleen Kallaher Schmidt
    Assistant Public Advocate
    COUNSEL FOR APPELLEE:
    Daniel Jay Cameron
    Attorney General of Kentucky
    Todd Dryden Ferguson
    Office of the Attorney General
    39