OSCAR ROBINSON v. COMMONWEALTH OF KENTUCKY
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RENDERED: AUGUST 16, 2002; 10:00 a.m.
ORDERED PUBLISHED: OCTOBER 4, 2002; 2:00 p.m.
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
NO.
2000-CA-002232-MR
and
2000-CA-002238-MR
OSCAR ROBINSON
v.
APPELLANT
APPEAL FROM BATH CIRCUIT COURT
HONORABLE WILLIAM B. MAINS, JUDGE
ACTION NOS. 96-CR-00003 & 96-CR-00004
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, JOHNSON, AND McANULTY, JUDGES.
McANULTY, JUDGE:
Oscar Robinson appeals from an order of the
Bath Circuit Court revoking his probation.
Robinson contends
that the procedural rigors of due process require the
Commonwealth to furnish discovery prior to a probation revocation
hearing.
We agree with the circuit court that Robinson’s claim
is without merit and thus affirm.
On June 11, 1997, Robinson was convicted in Bath
Circuit Court of two counts of first-degree trafficking in a
controlled substance.
Robinson was sentenced to two consecutive
six year sentences in prison.
After sentencing, Robinson filed a
petition for pre-release probation.
On April 15, 1999, the
circuit court ordered a Risk Assessment be performed by the
Kentucky Department of Corrections and that a recommendation be
forwarded to the court and to the Commonwealth’s Attorney for
consideration regarding Robinson’s probation request.
Assessment was filed on May 7, 1999.
A Risk
Subsequently, Robinson was
released on probation on July 22, 1999, and was directed to
report to the Office of Probation and Parole in Mt. Sterling.
On June 14, 2000, the Commonwealth received a report
from Robinson’s probation officer that the appellant had tested
positive for marijuana and had continually had trouble meeting
his appointments at Pathways.
Accordingly, the Commonwealth’s
Attorney filed a motion to schedule a probation revocation
hearing on June 16, 2000.
In the time leading up to this
hearing, the Commonwealth filed numerous supplemental filings
related to Robinson’s probation revocation hearing.
In response
to these filings, Robinson filed a Motion for Discovery on July
26, 2000.
Robinson’s motion was denied on August 4, 2000.
Subsequently, a hearing was held where Robinson’s probation was
revoked.
This appeal followed.
It is well established that due process requires a
probation revocation proceeding to comply with the same
conditions as are specified in Morrissey v. Brewer, 408 U.S. 471,
480, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484, 494 (1972), in the
case of a parolee.
Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.
Ct. 1756, 1759, 36 L. Ed. 2d 656, 661 (1973).
As the United
States Supreme Court noted in Gagnon, “[d]espite the undoubted
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minor differences between probation and parole, the commentators
have agreed that revocation of probation where sentence has been
imposed previously is constitutionally indistinguishable from the
revocation of parole.”
Gagnon at Footnote 3.
As such, our
analysis remains unchanged irrespective of whether we are
considering the revocation of an individual’s probation or
parole.
That is, the procedural rigors of due process have been
satisfied so long as the revocation proceeding complies with the
requirements first articulated by Morrissey.
It is against this
conceptual backdrop which we now consider the legal merit of
Robinson’s claim.
A probation revocation proceeding “is not a part of a
criminal prosecution and thus the full panoply of rights due a
defendant in such a proceeding does not apply to parole
revocations.”
Morrissey, supra.
Indeed, criminal judicial
proceedings and probation revocation hearings are quite
dissimilar in both form and substance.
As the United States
Supreme Court has noted, “[r]evocation [of probation] deprives an
individual, not of the absolute liberty to which every citizen is
entitled, but only of the conditional liberty properly dependent
on observance of special parole restrictions.”
Id.
Indeed, if
an individual released on probation has failed to abide by the
conditions of his release, “the State has an overwhelming
interest in being able to return the individual to imprisonment
without the burden of a new adversary criminal trial[.]”
Morrisey at 483.
Although the State has a great interest in
reincarcerating those individuals who are unable to meet the
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conditions of their probation, it may not do so without first
affording an individual the minimum requirements of due process.
Morrisey at 488.
As articulated by the United States Supreme
Court in Morrissey at 489, these requirements include:
(a) written notice of the claimed violations
of [probation]; (b) disclosure to the
[probationer] of evidence against him; (c)
opportunity to be heard in person and to
present witnesses and documentary evidence;
(d) the right to confront and cross-examine
adverse witnesses (unless the hearing officer
specifically finds good cause for not
allowing confrontation); (e) a “neutral and
detached” hearing body such as a traditional
parole board, members of which need not be
judicial officers or lawyers; and (f) a
written statement by the factfinders as to
the evidence relied on and reasons for
revoking [probation].
While the Morrisey factors are not an exhaustive list, they do
establish a floor upon which the State is able to construct its
own due process requirements.
However, such a process is not
meant to become a second criminal prosecution.
Indeed, “the
process should be flexible enough to consider evidence . . . that
would not be admissible in an adversary criminal trial.”
Morrisey at 489.
While the Commonwealth’s courts have not previously
addressed the question before us in the present case, this Court
has applied Morrissey in two other contexts.
In Marshall v.
Commonwealth, Ky. App., 638 S.W.2d 288 (1982), we found that
hearsay evidence is admissible in parole revocation proceedings.
Similarly, in Tiryung v. Commonwealth, Ky. App., 717 S.W.2d 503
(1986), we held that illegally seized evidence is admissible in
parole revocation hearings.
In both Marshall and Tiryung, our
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decision rested on the proposition first articulated in Morrissey
and subsequently adopted in Gagnon that parole and probation
revocation hearings are not to be treated as criminal judicial
proceedings.
To that end, it is clear that in order to comply
with the United States Constitution’s guarantee of due process,
probation revocation hearings must meet the factors first
announced in Morrissey.
Turning to the case sub judice, we begin our analysis
of this question with a facial review of RCr1 7.24.
RCr 7.24
outlines, inter alia, what evidence the prosecution and defendant
must disclose upon the other’s request, the timing for discovery
requests, and the penalties for a party’s failure to comply with
a discovery request.
The language of RCr 7.24 does not expressly
forbid its application to probation revocation hearings.
However, it is patently clear from a reading of RCr 7.24 that the
rule was designed to govern pretrial discovery in criminal
trials.
Moreover, the placement of RCr 7.24 within the criminal
rules also seems to imply that its drafters intended RCr 7.24 to
be used only in pretrial discovery as the Kentucky Rules of
Criminal Procedure are largely arranged in sections which mirror
the chronological progression of a criminal matter.
Given the spirit of Morrissey and the express language
of RCr 7.24, we cannot say that the procedural rigors of due
process require the Commonwealth to furnish discovery prior to a
probation revocation hearing.
Robinson contends that discovery
is necessary so as to determine how the lab samples were
1
Kentucky Rule of Criminal Procedure
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packaged, what type of testing measure was used, what standards
were used by the lab in conducting their analysis, and whether
the test was based on 100, 50, 20, or 10 nanograms.
None of the
information sought by Robinson is of such a nature that he would
be unable to challenge the Commonwealth’s proof.
Due process
requires only that a probationer be informed of the evidence to
be presented against him.
Marshall at 689 citing Morrissey at
489.
Robinson was provided with such information in the case at
bar.
It is within the sound discretion of the trial court to
determine whether the disclosure of the evidence by the
Commonwealth was sufficient to meet minimum due process
requirements.
Based on the disclosure of evidence that was
provided by the Commonwealth to Robinson, we cannot say that
Robinson was harmed nor his due process rights were violated by
the denial of his discovery motion.
For the foregoing reasons, the judgment of the Bath
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael J. Curtis
Ashland, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
William L. Daniel, II
Assistant Attorney General
Frankfort, Kentucky
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