TIFFANY DAWN SIZEMORE v. COMMONWEALTH OF KENTUCKY
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RENDERED: June 25, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000068-MR
TIFFANY DAWN SIZEMORE
APPELLANT
APPEAL FROM HART CIRCUIT COURT
HONORABLE LARRY D. RAIKES, JUDGE
ACTION NO. 00-CR-00061
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, TAYLOR AND VANMETER, JUDGES.
VANMETER, JUDGE.
On March 23, 2001, the Hart Circuit Court
accepted appellants’ guilty plea to manslaughter in the
second-degree.
On June 6, 2001, in accordance with the
Commonwealth’s recommendation, the court entered a final
judgment sentencing appellant to ten years, directing her to
serve eighteen months, with the balance of the sentence probated
for five years.1
Simultaneously with the final judgment, the
circuit court entered an order of probation to apply upon the
appellant’s release after serving her initial prison sentence.
The appellant’s terms of probation required her to:
Avoid injurious or vicious habits, including
but not limited to, abuse of alcohol, drugs
or other substances;
Good behavior and no substantial violations
of law;
Support dependents and meet other family
obligations;
Report to probation officer as directed;
Enroll in and complete counseling program
designed to address drug/alcohol problem, as
arranged for by probation officer;
Comply with all financial obligations
imposed through Final Judgment of
Conviction;
Other: all other conditions will be set once
defendant is released;
Other: no abuse of alcohol or drugs;
Defendant is to remain receiving counseling
at Life Skills.
The record discloses that appellant filed two motions
for shock probation, both of which were denied.
1
She was
The terms of the Commonwealth’s plea offer were “Manslaughter 2nd degree- 10
years in penitentiary; defendant to serve 18 months and upon release shall be
evaluated by a qualified mental health facility to recommend appropriate
in-house drug and mental health treatment. Balance of sentence probated on
condition of successful treatment, good behavior; no drugs or alcohol; random
drug and alcohol testing and other court conditions.”
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released from the initial eighteen month portion of her sentence
on October 1, 2001.
On or about February 26, 2002, appellant’s probation
officer, Tom La Follette, filed a special supervision report
setting out a number of issues and allegations.
Most
importantly, the report stated that during a February 12, 2002,
meeting with La Follette, appellant admitted to the violation of
her established curfew,2 the use of a controlled substance
(crank), and the use of a controlled substance (Tylenol III)
prescribed for another person.3
In response to this report, the
trial court issued a rule setting a hearing for April 2, at
which time appellant was to show cause why her probated sentence
should not be revoked “for the following reason:
attached Special Supervision Report.”
1.
See
However, the April 2
hearing was continued after it was learned that appellant, who
apparently was in a halfway house, Park Place Recovery Center,
had not been served with the rule.
Although, the written record does not clearly reflect
that appellant was served with notice of the August 6, 2002,
hearing, the video record shows that appellant and her counsel
2
The probation officer apparently set a curfew as a condition of his
supervision upon appellant’s release in October 2001. While listed as one of
the violations in the February 2002 special supervision report, the trial
court did not base its revocation order on this violation.
3
The report also contained allegations of child neglect and living with a
convicted felon that La Follette was unable to substantiate.
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appeared before the court for that hearing.
Appellant made no
objection to the rule based on lack of service or insufficiency
of notice, and she and her counsel participated in the
examination and cross-examination of witnesses.
In fact,
appellant’s counsel objected to any questions related to those
issues stated in the February 2002 Special Supervision Report
which Officer La Follette was unable to substantiate.
Thus, the
record is clear that both appellant and her counsel were aware
of the curfew violation and illegal drug use allegations which
served as the bases for allegations of probation violations.
Appellant attempted to forestall possible revocation by
presenting testimony of her mental illness and continued
recovery efforts in halfway houses and assisted living programs.
Notwithstanding the violations as proven at the August 6
hearing, the trial court continued the hearing to December 17 to
give appellant an opportunity to enter Phoenix House, an
assisted living program in Bowling Green.
Upon first attempting to enter the Phoenix House on
August 26, 2002, appellant tested positive for methamphetamine
and was denied admission.
La Follette filed another special
supervision report dated September 5, 2002, setting out the
facts of this incident.
In response, the trial court issued an
additional rule setting a hearing at which appellant was to show
cause why the probated sentence should not be revoked “for the
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following reason: 1. See attached Special Supervision Report.”
During the December 17 show cause hearing, the testimony
established that appellant initially was denied admission to the
Phoenix House program due to her positive drug test results.
In
addition, the program director testified that even after her
admission to the program, appellant did not make progress
towards recovery.
As a result, the trial court advised
appellant that she was making a joke of the probation process,
and it revoked her probation based on the undisputed evidence of
positive drug tests, plus, the whole evidence produced at the
August 6 and December 17 hearings.
The trial court entered a
revocation order setting forth the violations as “Abuse of drugs
and/or alcohol” and “Other: failure to comply with Park Place
requirements and requests.” This appeal followed.
Appellant’s sole argument for reversal is that the
trial court erred by entering a rule which insufficiently
identified the grounds for probation revocation by referring
generally to attached reports.4
We disagree.
4
A court may not revoke or modify the conditions of a sentence or probation
except after a hearing with defendant represented by counsel and following a
written notice of the grounds for revocation or modification. KRS
533.050(2). In Radson v. Commonwealth, Ky. App., 701 S.W.2d 716 (1986), a
panel of this court discussed in great detail the requirements of notice for
a probation revocation hearing, and reversed a revocation finding that the
trial court had not given sufficient notice. In Radson, the grounds set forth
in the revocation notice specified an arrest in another specific case. At
the revocation hearing, the trial court revoked the defendant’s probation
because it believed he had failed to avoid persons of disreputable character,
not because it believed he had committed an additional crime. The court
stated that if “specific violations existed, they should have been stated in
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As an initial matter, we note that appellant did not
present this argument to the trial court.
this issue has been waived.
Thus, procedurally
See Port v. Commonwealth, Ky., 906
S.W.2d 327, 333 (1995) (court noting that “[a] defendant cannot
pursue one theory at the trial court level and another on the
appellate review”).
Moreover, we need not address the merits of
appellant’s argument in order to prevent the occurrence of
manifest error. RCr 10.26.
The record is clear that appellant
was notified and aware that she would be called upon to answer
the allegations that she had engaged in illegal drug use and had
violated her curfew.
She and her counsel appeared at two
scheduled hearings and defended the charges, not by disputing
them, but instead by attempting to present mitigating factors,
such as mental illness and enrollment in halfway houses and
assisted living programs, in an effort to avoid revocation.5
Given the fact that the record clearly discloses that appellant
violated her terms of probation by the illegal use of drugs.
some manner to notify him of the charges he would require to defend.” Id. at
717.
5
See Polk v. Commonwealth, 622 S.W.2d 223, 225 (1981) (court holding that
defendant’s procedural due process claims failed in light of facts that he
was not under arrest, and attended and participated in the hearing “fully
aware of and ready to show cause why his probation should not be revoked”).
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The trial court did not abuse its discretion in revoking her
probation and imposing the balance of the sentence.6
The judgment of the Hart Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
David Eucker
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
Kent T. Young
Assistant Attorney General
Office of the Attorney General
Frankfort, Kentucky
6
The burden of proof required to revoke probation is "merely proof of an
occurrence by a preponderance of the evidence." Myers v. Commonwealth, Ky.
App., 836 S.W.2d 431, 433 (1992), overruled on other grounds by Sutherland v.
Commonwealth, 910 S.W.2d 235 (1995) (citing Rasdon v. Commonwealth, Ky. App.,
701 S.W.2d 716, 719 (1986) and Murphy v. Commonwealth, Ky. App., 551 S.W.2d
838 (1977)).
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