MARY LOUISE THOMAS v. COMMONWEALTH OF KENTUCKY
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RENDERED:
SEPTEMBER 1, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001634-MR
MARY LOUISE THOMAS
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN MINTON, JR., JUDGE
ACTION NO. 97-CR-00517
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, EMBERTON AND GUIDUGLI, JUDGES.
GUIDUGLI, JUDGE.
Mary Louise Thomas (Thomas) appeals an order
of the Warren Circuit Court entered June 25, 1999, which revoked
her probation and reinstated her five-year sentence for
trafficking in marijuana within 1000 yards of a school (KRS
218A.1411).
On appeal, Thomas contends that the legislature’s
classification of cannabis sativa (marijuana) as a scheduled I
controlled substance is both arbitrary and unreasonable and thus
unconstitutional and further, that the defense of “medical
necessity” should be available to her.
Having thoroughly
reviewed appellant’s arguments and finding them to be lacking in
legal merit, we affirm.
Thomas was indicted by the Warren County Grand Jury on
three counts of trafficking in a controlled substance (marijuana)
within 1000 yards of a school.
She was subsequently appointed
counsel and a competency evaluation ordered.
determined to be competent to stand trial.
Thomas was
Eventually Thomas was
represented by private counsel and entered into a negotiated plea
agreement.
Pursuant to the plea agreement, Thomas would enter a
guilty plea to one count of trafficking in marijuana within 1000
yards of a school and the Commonwealth would dismiss the
remaining two counts and recommend a probated sentence of five
years.
On October 28, 1998, the court accepted the negotiated
plea agreement.
After a pre-sentence investigation report was
filed with the court, final sentence was imposed on November 24,
1998.
At the sentencing hearing, Thomas’s attorney argued
that she should be excused from the probation condition requiring
her to be drug tested because she used marijuana to alleviate
chronic pain she suffered due to several medical conditions.
After a discussion regarding the drug testing condition, the
trial court indicated that drug testing would be a condition of
probation and included it in his written order.
Specifically,
the trial court wrote on his order of probation:
Waiver of 4th and 5th Amendment Rights; random
drug or alcohol screens. Not possess or
consume drugs or alcohol during this period
of probation.
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On May 12, 1999, the Commonwealth filed a motion to
revoke appellant’s probation based upon her use of marijuana.
At
the hearing to revoke Thomas’s probation, Officer Charles
Fishback, appellant’s probation officer, testified that a drug
screen of Thomas administered March 1, 1999, came back positive
for drug usage.
Appellant testified at the hearing and readily
admitted she regularly used marijuana for medicinal purposes.
Appellant did not deny she violated her probation conditions but
rather argued, as she does before this Court, that Kentucky’s
statutes making private use of marijuana illegal are
unconstitutional and that the courts should provide Thomas and
other similarly ill persons a “medical necessity” defense to the
criminal offense of possession of marijuana.
After giving Thomas
several opportunities to fully argue and brief the issues, and to
supplement the record with medical documentation of her physical
ailments and the medicinal benefits of marijuana, the trial court
granted the Commonwealth’s motion and revoked Thomas’s probation.
This appeal followed.
Probation and revocation therein is governed by KRS
Chapter 533.
Specifically, conditions of probation which may be
imposed are set forth in KRS 533.030, which states, in relevant
part:
(l) If the defendant’s record indicates a
controlled substance or alcohol problem,
submit to periodic testing for use of
controlled substances or alcohol and pay a
reasonable fee, not to exceed the actual cost
of the test and analysis, as determined by
the court, said fee to be collected by the
circuit clerk, held in an agency account, and
disbursed, on court order, solely to the
agency or agencies responsible for testing
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and analysis as compensation for the cost of
the testing and analysis performed under this
subsection. For good cause shown, the
testing fee may be waived by the court.
In Sutherland v. Commonwealth, Ky., 901 S.W.2d 235
(1995), the Kentucky Supreme Court set forth how and when a
sentence of probation may be revoked:
It must be pointed out that KRS 533.020(1)
provides that a probated sentence may be
revoked “at any time” prior to the expiration
or termination of the period of probation.
Further, KRS 533.050(1)(a) provides that a
trial court may summon a probationer to
appear before it “at any time” before the
termination of a sentence of probation, upon
a finding of probable cause to believe that
there was a violation of a condition of
probation. The court has the authority to
revoke probation, after conducting a hearing.
KRS 533.050(2).
Sutherland, 910 S.W.2d 236-237.
In this appeal, appellant does
not contest the court’s authority to impose the condition of drug
testing, nor that a proper hearing was conducted, nor that
probable cause existed for the Commonwealth to file the motion,
nor that she was still under probation.
Rather, appellant argues
that the condition imposed by the trial court (drug testing),
which she was made specifically aware of at the time of
sentencing, is now unconstitutional and improper.
arguments to be both untimely and unfounded.
We believe her
Thomas made her
opposition to the drug testing condition known to the trial
court.
However, the trial court, based upon the facts of the
case and statutory authority, imposed drug testing as a condition
of her probation.
Had Thomas wished to contest its imposition
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she should have appealed at that time to properly preserve the
issue.
Despite her failure to do so, we will dispose of this
appeal on its merit since we believe her arguments lack merit.
The arguments advanced herein are similar to those presented in
Polk v. Commonwealth, Ky. App., 622 S.W.2d 233 (1981).
In Polk,
the appellant claimed his probation was revoked because of his
inability rather than his refusal to pay court ordered
restitution.
Polk argued that it was unconstitutional to
imprison someone solely because of nonpayment of fines.
The
Court in Polk rejected his argument and held that his failure to
make payments resulted from his refusal, not his inability, to
pay.
The Court went on to state:
However, in the case at bar, the appellant
made a firm commitment as a condition to his
probation that a certain sum would be paid
rather than his going to prison. This is a
different situation from a fine imposed by a
court. It was the understanding of all
parties concerned that if the conditions of
probation were not met, the probation would
be revoked.
Polk, 622 S.W.2d at 225.
Similarly, Thomas made a firm
commitment not to use drugs in order to receive the benefits of
the negotiated plea bargain for a probated sentence.
Subsequently, as a result of her own actions, she violated the
conditions of probation and now must suffer the consequences.
The appellant does not claim the trial court denied her
procedural due process of law under the United States and
Kentucky Constitutions when it revoked her probation.
Further, a
review of the record shows clearly that she was afforded the
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minimum due process required during a probation revocation
proceeding.
See generally, Morrissey v. Brewer, 408 U.S. 471, 92
S. Ct. 2593, 33 L.Ed. 484 (1972); Gagrim v. Scarpelli, 411 U.S.
778, 93 S. Ct. 1756, 36 L.Ed.2d 656 (1973); and Murphy v.
Commonwealth, Ky. App., 551 S.W.2d 838 (1977).
Thomas’s argument
is not with the legal proceeding itself but with the legislation
making personal use of marijuana illegal.
That is an issue she
needs to address to the Kentucky General Assembly.
Our review of
the lower court’s proceedings convinces us that Thomas violated
her probation, that all due process requirements were followed,
and that the trial court’s decision to revoke her probation was
based upon substantial evidence.
As such, the judgment of the
Warren Circuit Court’s to revoke appellant’s probation is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gatewood Galbraith
Lexington, KY
A. B. Chandler, III
Attorney General
William L. Daniel, II
Assistant Attorney General
Frankfort, KY
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