NOT TO BE PUBLISHED
The appellant, Ricky Hale, appeals a judgment and sentence on a plea of guilty and asks this court to vacate the judgment and remand the case to the circuit court for resentencing; the Commonwealth agrees. We vacate and remand.
Hale was indicted for possession of a controlled substance, first degree, and on February 18, 2011, pled guilty to a diverted five-year sentence supervised through Drug Court. On April 6, 2012, Hale stipulated to setting aside his diversion as a result of a violation and the circuit court set his case for rehearing. Prior to the sentencing date, Hale elected to be sentenced under Kentucky Revised Statute (KRS) 218A.1415, as amended effective June 8, 2011, which would serve to mitigate his sentence to three years. The circuit court denied his request and sentenced him to five years imprisonment. This appeal followed.
During the pendency of this appeal, the Supreme Court of Kentucky granted discretionary review in Smith v. Commonwealth, 400 S.W.3d 742 (Ky. 2013). Because Smith was directly on point with this case, the appeal was held in abeyance until the decision was finalized on July 20, 2013. See id. The parties then moved to have the case returned to the active docket and their request was granted. Both parties concede that Smith is controlling and that Hale is entitled to a mitigated three year sentence.
In Smith, the Court instructed that plea agreements are voidable contracts and that sentencing is not finalized until after diversion is revoked. Id. at 744. The court went on to explain that KRS 446.110:
Id. at 745. Thus, because sentencing is a "proceeding," an individual who violates diversion and is awaiting sentencing may consent to application of the amended statute so long as it is in effect at the time of the sentencing hearing. Id.
In this case, Hale consented to application of the amended version of KRS 218A.1415(2)(a), which was in effect at the time of his sentencing hearing, and he was not a persistent felony offender. In accordance with Smith, Hale is entitled to have his sentence mitigated under the new version of the statute; thus, his five year sentence is vacated and the matter is remanded for the imposition of a three year prison sentence.