BARRY FEESE v. COMMONWEALTH OF KENTUCKY
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RENDERED: SEPTEMBER 27, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002660-MR
BARRY FEESE
APPELLANT
APPEAL FROM LINCOLN CIRCUIT COURT
HONORABLE WILLIAM T. CAIN, JUDGE
ACTION NO. 97-CR-00026
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, JOHNSON AND SCHRODER, JUDGES.
JOHNSON, JUDGE:
Barry Feese has appealed from an order entered
by the Lincoln Circuit Court on September 27, 2000, which found
that he had violated the terms of his probation by failing to
complete a substance abuse counseling program, revoked his
sentence of probation, and sentenced him to prison for a term of
three years.
Having concluded that the trial court did not abuse
its discretion, we affirm.
On July 25, 1997, a Lincoln County grand jury indicted
Feese for the offense of marijuana cultivation of five or more
plants,1 a Class D felony.
On June 16, 1998, Feese, by and
through counsel, filed a motion to enter a guilty plea based on
the offer by the Commonwealth to recommend a three-year prison
sentence.
On August 28, 1998, the trial court accepted Feese’s
guilty plea and ordered that a presentence investigation report
be presented to the court prior to final sentencing.
On December
18, 1998, the trial court sentenced Feese to three years in
prison and noted that “probation or conditional discharge would
unduly depreciate the seriousness of the defendant’s crime.”
On March 22, 1999, after serving 1362 days in jail,
Feese filed a motion for shock probation.
The trial court
granted Feese’s motion on March 29, 1999, subject to the
following conditions:
1.
The defendant is to obtain drug
counseling;
2.
Submit to random drug and alcohol tests
at his expense;
3.
Pay any supervision fees;
4.
Submit proof for the next six (6) months
that he has been helping in the care of
his son;3
5.
Not commit any other offenses; [and]
6.
Abide by necessary and appropriate
conditions of probation as determined by
1
Kentucky Revised Statutes (KRS) 218A.1423.
2
Feese had served 56 days in custody prior to sentencing.
3
A letter from Sandy Lane, RN, was attached to the motion
for shock probation and contained in the record. That letter
states that Feese’s son, Barry Jr., “has a diagnosis of leukemia
and requires an intense amount of care.”
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the Court or the Probation Officer.
Subsequently, on January 21, 2000, the Commonwealth
filed a motion to revoke Feese’s probation, stating as grounds
that on July 7, 1999, Feese tested positive for cocaine, and on
December 17, 1999, after being arrested on September 11, 1999, he
was convicted in Marion District Court for the offenses of
reckless driving and resisting arrest.
Instead of revoking
Feese’s probation as requested by the Commonwealth, the trial
court by an order entered on March 3, 2000, amended Feese’s
probation “to include the condition that he attend and
successfully complete the [substance abuse] program at Shepherd’s
House” in Lexington, Kentucky.
On August 16, 2000, the Commonwealth again filed a
motion to revoke Feese’s probation because he was terminated from
Shepherd’s House on May 10, 2000, for non-compliance with the
program.
A hearing was held on the matter on September 22, 2000.
The Commonwealth presented the testimony of only one witness,
Paul Barrett, Feese’s probation officer.
Feese testified on his
own behalf, and called as a witness his employer, Cynthia
Hungate.
The direct examination of Feese included the following:
Ms. Mead4: Why were you terminated from
Shepherd’s House?
Feese:
4
Well, it was my understanding that
I could do volunteer work, and I
was volunteering at the VA. It was
a full-time job, and they didn’t
agree with it and were discussing
it and they insulted me a few
An Assistant Public Advocate representing Feese.
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times, and I said something smart
back to them, and that was the end
of it.
Ms. Mead: And then you were terminated?
Feese:
Yeah.
Ms. Mead: So they had an objection to you
performing volunteer service work
at the VA Hospital, it that right?
Feese:
Yes.
Ms. Mead: Did they tell you what their
objection was to that?
Feese:
They were giving me some house
restrictions and stuff, and I just
told them that . . . I didn’t think
it was right because other people
were allowed to do volunteer work.
Ms. Mead: Basically they were telling you at
the Shepherd’s House that you had
to be restricted to the house.
Feese:
At some degree.
Ms. Mead: More than others?
Feese:
Right, more than other clients.
Upon cross-examination, Feese gave the following
testimony:
Mr. Day5: Mr. Feese, did you understand that
your condition of probation was
amended to include, and I quote,
“That . . . you attend and
successfully complete the program
at Shepherd’s House.”
Feese:
Yes I did, and I really wanted to
complete it, and when they wanted
to throw me out I tried to get into
other places. I made calls and I
5
An Assistant Commonwealth’s Attorney representing the
Commonwealth.
-4-
asked Mr. Barrett but he wasn’t in
agreement to that.
Mr. Day:
The reason that you did not
complete [the program] was because
of at least appearing angry and
maybe using some profanity towards
some of the persons that worked
there. Would that be fair to say?
Feese:
Something like that.
Mr. Day:
The reason for you becoming angry
and using profanity was that they
wouldn’t change the conditions to
meet what you wanted to do.
Feese:
No, basically they were talking to
me and one just kept continually
insulting me about not being
willing to work. That I should
live in a homeless shelter if I
didn’t want to work . . . .
Mr. Day:
They did not want you to be gone
off the grounds as much as you
wanted to be gone. That was the
number one problem, correct?
Feese:
Yeah.
Mr. Day:
They wouldn’t let you go do
volunteer work.
Feese:
They were going to let me do
volunteer work.
Mr. Day:
But not as much as you wanted to?
Feese:
Right.
Barrett testified that he did not recall Feese asking
to be placed into a different program.
Ms. Mead: [A]nd did [Feese] contact you
requesting that he be referred to a
different substance abuse program?
Mr. Barrett:
That I don’t recall.
-5-
Ms. Mead: You don’t recall if he contacted
you?
Mr. Barrett:
No. Well, he did call me, but I
don’t recall him requesting another
program.
Ms. Mead: Has he asked you since he has been
meeting with you that he be
referred to another program?
Mr. Barrett:
Initially this was a condition of
probation. Then I filed a motion
to revoke him, and I did not see
any point in reassigning any
additional treatment since I had
already filed the motion.
. . .
Ms. Mead
But he did speak to you about going
to a different substance abuse
program. You just didn’t see the
point.
Mr. Barrett:
He was specifically ordered to this
program [emphasis added].
Ms. Mead: But he did ask to attend a
different program.
Mr. Barrett:
Possibly, I can’t say.
awhile.
It has been
Hungate testified that she hired Feese at the end of
May 2000 to work for her construction company.
Feese had already
been promoted to the position of supervisor and Hungate testified
that he was an asset to the company.
She further stated that
Feese was always on time for work and gave “150%” every day.
After hearing the evidence, the trial court ruled as
follows:
-6-
The letter from Shepherd’s House says during
an individual counseling session while
discussing some behavioral issues with his
primary therapist Mr. Feese said he would
like to contact his probation officer and be
referred to a different substance abuse
treatment program. At this time it was clear
that Mr. Feese was no longer interested in
substance abuse treatment at the Shepherd’s
House. This issue was discussed further with
the director of the Shepherd’s House program
at which time Mr. Feese appeared to become
angry and raising his voice and stating that
the psychology of the program was bullshit.
At this time the client was informed of his
dischargement at the Shepherd’s House program
and was asked to leave the grounds. Client
would not leave as requested and the police
were called to escort him from the grounds.
It is apparent that he does not like
restrictions of any kind. After he was
discharged I think it was very telling that
he was asked to leave the grounds and he
would not and it was required for the police
to come and get him. Now, he brings in his
employer, and I am sure he is doing a good
job. When he was here in jail he was doing a
good job over here. There are all sorts of
letters. It says he is working in Kingsport,
Tennessee. He is out of state. He is not
suppose to be out of the state while he is on
probation unless he has permission. He just
doesn’t follow anything. He has had his
chances.
. . .
Mr. Feese just will not follow the rules as
laid down. He has violated the terms that
the Court imposed on him for his second
violation of probation.
The trial court ordered that Feese’s probation be revoked and
that the three-year prison sentence be imposed.
This appeal
followed.
We are limited in our review of the trial court’s
decision to revoke Feese’s probation to determining whether the
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trial court abused its discretion.6
In Tiryung, this Court
stated:
It is clear in this Commonwealth that
probation is a privilege rather than a right.
Brown v. Commonwealth, Ky.App., 564 S.W.2d 21
(1977). One may retain his status as a
probationer only as long as the trial court
is satisfied that he has not violated the
terms or conditions of the probation. It is
not necessary that the Commonwealth obtain a
conviction in order to accomplish revocation
of probation.7
In order to revoke probation, the Commonwealth must prove a
violation of one of the conditions of probation by a
preponderance of the evidence.8
Our review of the record reveals
that the Commonwealth certainly presented sufficient evidence to
satisfy that requirement.
In the case sub judice, it is undisputed that Feese
violated the terms of his probation on two separate occasions,
albeit that the first order of probation was amended to allow
Feese to undergo and “successfully complete” the substance abuse
counseling program at Shepherd’s House.
The order amended the
terms of Feese’s probation and a new condition was placed on his
probation.
Feese simply failed to complete the program at
Shepherd’s House as required, and thus, he failed to comply with
the terms of the trial court’s amended probation order.
Feese’s
display of anger and offensive behavior toward the staff at
6
Tiryung v. Commonwealth, Ky.App., 717 S.W.2d 503, 504
(1986).
7
Id.
8
Ransdon v. Commonwealth, Ky.App., 701 S.W.2d 716 (1986).
-8-
Shepherd’s House certainly provided Shepherd’s House with
justifiable cause for terminating him from its substance abuse
program.
Clearly, there were sufficient grounds for the trial
court to find that Feese had violated the terms of his probation,
and the revocation of his probation was not an abuse of
discretion.
For the foregoing reasons, the order of the Lincoln
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Dennis Stutsman
Frankfort, Kentucky
A.B. Chandler, III
Attorney General
Michael G. Wilson
Assistant Attorney General
Frankfort, Kentucky
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