Full Opinion

RENDERED: OCTOBER 16, 2026; 10:00 A.M. TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0551-MR SHENITA LATRICIA AVERY APPELLANT APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE TRACY E. DAVIS, JUDGE ACTION NO. 18-CR-003513 COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: THOMPSON, CHIEF JUDGE; A. JONES AND KAREM, JUDGES. JONES, A., JUDGE: Shenita Avery, pro se, appeals from the Jefferson Circuit Court’s April 2, 2025, order denying her motion for relief pursuant to RCr1 11.42. Although Avery characterizes herself as being on probation and seeks to collaterally attack her conviction and sentence, the record reveals a more fundamental problem with her motion: Avery has never been sentenced. Instead, the circuit court placed Avery on pretrial diversion, which remains in effect. 1 Kentucky Rules of Criminal Procedure. -1- Because RCr 11.42 provides a means to collaterally attack a sentence, and no sentence has been imposed in this case, the rule affords Avery no relief. Accordingly, we affirm. I. BACKGROUND On November 28, 2018, a Jefferson County grand jury indicted Avery for false statements, misrepresentations, or failure to report a change in circumstances to obtain public-assistance benefits with the intent to defraud. The indictment alleged that Avery failed to report her spouse as a member of her household, resulting in her receipt of $19,352.00 in benefits to which she was not entitled. Avery subsequently entered an Alford plea.2 Pursuant to the plea agreement, the Commonwealth recommended a one-year sentence, diverted for one year or until Avery paid $8,756.00 in restitution, whichever occurred later. On December 6, 2019, the circuit court entered an order placing Avery on pretrial diversion on those terms. When the Commonwealth subsequently moved to revoke diversion, the circuit court instead continued Avery on diversion until she paid restitution in full. The record contains no subsequent order revoking Avery’s diversion or imposing a sentence. Indeed, the Commonwealth represents that Avery remains on diversion. 2 An Alford plea permits a defendant to plead guilty while maintaining his or her innocence. North Carolina v. Alford, 400 U.S. 25, 37-38 (1970). -2- In July 2024, Avery filed the present RCr 11.42 motion, asserting various claims of ineffective assistance of counsel. The circuit court denied the motion without an evidentiary hearing. This appeal followed. II. ANALYSIS Resolution of this appeal turns on the distinction between probation and pretrial diversion. Avery repeatedly characterizes her status as probation. Our review of the record, however, reveals no judgment sentencing Avery and placing her on probation. The December 6, 2019, order placed Avery on pretrial diversion, and nothing in the record indicates that her diversion was thereafter revoked and a sentence imposed. The source of Avery’s apparent confusion is understandable. Although pretrial diversion and probation are distinct, the General Assembly has directed that the statutory provisions governing the period and conditions of probation apply, insofar as possible, to pretrial diversion. KRS3 533.254(1)-(2). Moreover, participants in pretrial diversion are supervised by the Division of Probation and Parole. KRS 533.254(1). Indeed, some filings in this case referred inadvertently to Avery’s status as probation. Those references, however, did not transform Avery’s pretrial diversion into probation. 3 Kentucky Revised Statutes. -3- The distinction is consequential. Pretrial diversion “is not a sentencing alternative; it is an ‘interruption of prosecution prior to final disposition’” that postpones sentencing while the defendant is given an opportunity to satisfy the terms of diversion. Commonwealth v. Derringer, 386 S.W.3d 123, 130 (Ky. 2012) (quoting Flynt v. Commonwealth, 105 S.W.3d 415, 424 (Ky. 2003)). Thus, “when a defendant is granted pretrial diversion, a sentence is not imposed until diversion is revoked and the trial court holds a sentencing hearing and makes an independent determination of the appropriate sentence.” Id. at 131. If diversion is successfully completed, the charges are instead designated “dismissed-diverted” and do not constitute a criminal conviction. KRS 533.258(1); see also Flynt, 105 S.W.3d at 418. Pretrial diversion may operate similarly to probation, but it is not probation. Tucker v. Commonwealth, 295 S.W.3d 455, 457 (Ky. App. 2009). That distinction is dispositive because RCr 11.42(1) is expressly limited to “[a] prisoner in custody under sentence or a defendant on probation, parole or conditional discharge who claims a right to be released on the ground that the sentence is subject to collateral attack[.]” The Supreme Court has characterized this language as “plain and unambiguous.” Parrish v. Commonwealth, 283 S.W.3d 675, 677 (Ky. 2009). “RCr 11.42 does not provide, expressly or by implication, for the review of any judgment other than the one or -4- ones pursuant to which the movant is being held in custody.” Id. (citing Sipple v. Commonwealth, 384 S.W.2d 332, 332 (Ky. 1964)). Avery falls within none of the categories identified in the rule. She is not in custody under a sentence, nor is she on probation, parole, or conditional discharge. She remains on pretrial diversion and, consequently, no sentence presently exists for her to collaterally attack.4 Id. As Parrish explains, RCr 11.42 is “a mechanism by which the party ‘claims a right to be released’ from his sentence.” Id. Just as a defendant cannot obtain release from a sentence that has already been completed, id., Avery cannot obtain release from a sentence that has never been imposed. If Avery successfully completes diversion, no sentence will be imposed at all. See KRS 533.258(1). Accordingly, RCr 11.42 does not provide a mechanism for Avery to challenge her guilty plea while she remains on pretrial diversion. 4 We recognize that, in Hunt v. Commonwealth, No. 2020-CA-0411-MR, 2022 WL 880140 (Ky. App. Mar. 25, 2022), as modified (Apr. 1, 2022), a panel of this Court held that a defendant on pretrial diversion could pursue a claim of ineffective assistance of counsel under RCr 11.42. The Hunt Court reasoned that because Kentucky Rule of Civil Procedure 60.02 requires a final judgment, a contrary holding would leave a defendant on pretrial diversion without a means to challenge a guilty plea allegedly resulting from ineffective assistance of counsel. We are not persuaded by that reasoning. It rests on the premise that, absent RCr 11.42 relief, a defendant on pretrial diversion has no procedural mechanism for challenging the guilty plea. But this Court rejected that premise in Commonwealth v. Lopez, 267 S.W.3d 685, 690 (Ky. App. 2008), explaining that RCr 8.10 remains available to a defendant on pretrial diversion seeking to withdraw a guilty plea precisely because no final judgment has been entered. Thus, there is no need to expand RCr 11.42 beyond its express terms to avoid the perceived procedural dilemma identified in Hunt. We further note that the Kentucky Supreme Court subsequently denied discretionary review and ordered Hunt depublished. -5- We review the denial of RCr 11.42 relief for an abuse of discretion, while reviewing questions of law de novo. Prescott v. Commonwealth, 572 S.W.3d 913, 920 (Ky. App. 2019). Because Avery is on pretrial diversion and has not been sentenced, RCr 11.42 is unavailable to her.5 Accordingly, the circuit court did not abuse its discretion in denying her motion. III. CONCLUSION For the foregoing reasons, we affirm the order of the Jefferson Circuit Court. ALL CONCUR. BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE: Shenita Avery, pro se Russell Coleman Louisville, Kentucky Attorney General of Kentucky Kristin L. Conder Assistant Attorney General Frankfort, Kentucky 5 In so holding, we join other panels of this Court who have reached this same conclusion. See Ross v. Commonwealth, No. 2015-CA-001332-MR, 2017 WL 3498724, at *1 (Ky. App. Jul. 28, 2017); Commonwealth v. Fahnbullah, No. 2020-CA-0047-MR, 2021 WL 2022134, at *3 (Ky. App. May 21, 2021). -6-