Background
Shenita Latricia Avery entered an Alford plea after a grand jury indicted her for failing to report her spouse as a household member and thereby receiving $19,352 in public-assistance benefits to which she allegedly was not entitled. Under the plea agreement, the Commonwealth recommended a one-year sentence, diverted for one year or until Avery paid $8,756 in restitution, whichever occurred later.
The Jefferson Circuit Court placed Avery on pretrial diversion in December 2019. When the Commonwealth later sought revocation, the court continued diversion until Avery paid restitution in full. No subsequent order revoked diversion or imposed a sentence. In 2024, Avery moved for relief under Kentucky Rule of Criminal Procedure 11.42, alleging ineffective assistance of counsel, but the circuit court denied the motion without an evidentiary hearing.
The Court’s Holding
The Kentucky Court of Appeals affirmed, holding that RCr 11.42 was unavailable because Avery remained on pretrial diversion and had never been sentenced. Although diversion can resemble probation and is supervised by the Division of Probation and Parole, it is an interruption of prosecution before final disposition, not probation or a sentencing alternative.
RCr 11.42 applies to a prisoner in custody under sentence or a defendant on probation, parole, or conditional discharge who seeks to collaterally attack a sentence. Avery fell within none of those categories, and there was no sentence from which she could seek release. The court rejected contrary reasoning from a depublished Court of Appeals decision, explaining that a defendant on diversion may seek to withdraw a guilty plea under RCr 8.10 because no final judgment has been entered.
Key Takeaways
- A defendant on pretrial diversion has not been sentenced and is not on probation, even when probation statutes and supervision procedures apply to the diversion.
- RCr 11.42 cannot be used to challenge a guilty plea or assert ineffective assistance while the defendant remains on pretrial diversion.
- A defendant on pretrial diversion may instead seek withdrawal of a guilty plea under RCr 8.10 before entry of a final judgment.
Why It Matters
The decision clarifies that the procedural similarities between pretrial diversion and probation do not make the two legally interchangeable. Eligibility for Kentucky post-conviction relief turns on the defendant’s actual status and the existence of an imposed sentence.
Defendants seeking to challenge guilty pleas during diversion must select a procedure available before final judgment rather than invoke a rule designed to collaterally attack an existing sentence.