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-