Franklin Circuit Court Judge Phillip Shepherd denied a motion for home incarceration pending sentencing earlier this week for a Frankfort man who pleaded guilty to the 2019 shooting death of Xavier Cochrum.
Public defender Brad Gordon, who represents 20-year-old Elijah Amburgey, previously filed a motion for his client’s release until his March sentencing date.
“The only reason he accepted this plea is because it was negotiated that he would be released pending sentencing,” Gordon argued in court Friday before the judge intervened.
Elijah Amburgey
“Let me stop you,” Shepherd said. “It was not in the paperwork and nobody has the authority to commit to anybody what the court is going to do on a motion like that.
“I’m not a potted plant. I have the authority to make an independent judgment on this matter and that’s what I’m going to do,” the judge stated, adding that he would review the plea agreement and issue an order.
Before Shepherd responded in the order he asked Commonwealth's Attorney Larry Cleveland to file a written response outlining the commonwealth's position to resolve any apparent confusion on the matter.
In his response Cleveland stated that the commonwealth did not object to home incarceration pending sentencing but added that it was not considered to be part of the formal written plea agreement. He said that the subject of releasing Amburgey to home incarceration pending sentencing was only raised after the case had been resolved through the plea agreement.
"The court is not bound by any agreement made between the Commonwealth and a defendant, nor any position of the Commonwealth regarding release of a defendant and it is within the court's discretion to reject any term of the plea agreement or the entirety of the plea agreement," Cleveland wrote.
On Jan. 13, Amburgey pleaded guilty to amended charges of second-degree manslaughter and second-degree assault, both Class C felonies.
He was originally charged with murder, a capital offense; first-degree assault, a Class B felony, and first-degree wanton endangerment, a Class D felony.
The wanton endangerment charge was dismissed per the plea agreement.
Amburgey shot and killed Cochrum, wounded 19-year-old Ezavion Peyton and fired toward Patrick Greenlee on Sept. 30, 2019, during what investigators described as a drug deal gone wrong.
Court documents indicate that Amburgey told authorities he didn’t fire the gun in self defense “but because they had disrespected and disobeyed him.”
Police found Cochrum’s body lying facedown in the driveway. Autopsy results show that he was shot three times — once in the left side of his chest and twice in the left side of his back — as he ran away from Amburgey.
Peyton sustained a gunshot wound to his right arm and was transported to Frankfort Regional Medical Center, where he was treated and released. Greenlee escaped injury.
All three of the survivors gave conflicting accounts of what happened that night.
Greenlee said Cochrum texted him looking to purchase marijuana and he arranged the transaction with Amburgey.
Elijah Amburgey stands with his public defender Brad Gordon during his change of plea hearing in Franklin Circuit Court on Jan. 13. (Chanda Veno | State Journal)
Amburgey, who was residing at his grandmother’s Indian Hills home at the time, testified that Cochrum tried to use counterfeit money to pay for $100 of marijuana. He said when he told all three of men to leave Peyton hit him.
Peyton, who first responders found in the backyard that night, told investigators that he was selling the marijuana and Amburgey tried to short-change him. That’s when, he said, Amburgey pulled a handgun from underneath a coffee table and started firing.
While arguing for Amburgey’s release to home incarceration pending sentencing during Friday’s criminal motion hour, Gordon, his attorney, stated that his client would live with his grandmother — a former probation and parole officer — “who is more than willing to let Mr. Amburgery go back to her house.”
In his order issued on Monday, Shepherd addressed the issue by saying that factor did not alleviate the court’s concerns.
“The defendant’s grandmother allowed him to live essentially unsupervised in a basement apartment and she also allowed him to have access to a firearm as an impulsive teenager, with no training supervision or safety measures taken to secure the weapon and guard against its illegal use,” the judge wrote.
“The Court is not willing to risk another incident of gun violence in these circumstances and the Court had no confidence the defendant would be adequately supervised if released to home incarceration pending sentencing.”
Shepherd also added that allowing Amburgey’s release “to enjoy this measure of freedom” would “unduly depreciate the seriousness of the offense.”
Franklin Circuit Court Judge Phillip Shepherd
“The family of Xavier Cochrum (who was killed in this senseless incident of gun violence) and Ezavion Peyton (who was shot but survived) must continue to bear the burden and endure the loss inflicted by this tragic and senseless act of gun violence,” the judge wrote.
He said it is difficult to see how the community or Amburgey would benefit from pre-sentencing release.
“Mr. Amburgey will have an opportunity to earn his freedom through the parole system, but to grant him release prior to his earning of that right with the proper supervision would not be appropriate,” Shepherd added.
Amburgey’s sentencing date is set for March 18. He is facing a maximum sentence of 20 years in prison — 10 years on each count. The commonwealth has recommended a 10-year sentence.
Home incarceration pending sentencing denied for Frankfort man who killed 19-year-old - State-Journal.com
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