TIMOTHY JOHN ANGLIN v. COMMONWEALTH OF KENTUCKY
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RENDERED: APRIL 22, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000397-MR
TIMOTHY JOHN ANGLIN
v.
APPELLANT
APPEAL FROM MADISON CIRCUIT COURT
HONORABLE JULIA HYLTON ADAMS, JUDGE
ACTION NO. 01-CR-00048
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, HENRY, AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Timothy John Anglin has appealed from the
January 23, 2004, order of the Madison Circuit Court which
revoked his conditional discharge.
Having concluded the trial
court did not abuse its discretion by revoking Anglin’s
conditional discharge, we affirm.
Anglin was indicted by a Madison County grand jury on
March 29, 2001, for two counts of sexual abuse in the first
degree1 for the abuse of a three-year-old girl.
Anglin entered a
plea of guilty and on September 19, 2001, the trial court
entered a final judgment sentencing him to prison for one year
on each conviction of sexual abuse in the first degree, to run
consecutively, for a total sentence of two years.
Pursuant to
KRS 532.043, Anglin was also sentenced to an additional threeyear period of conditional discharge, under the following
conditions:
1.
2.
Register as a sex offender for life;
3.
To complete Sex Offender Treatment;
4.
He shall reside in a setting where
there are no minor children;
5.
He shall hold no employment that places
him in contact with or control over
minors;
6.
He shall have no contact with any
minors without the supervision of an
approved adult chaperone who is fully
informed of his offenses and behavioral
rules;
7.
He shall not date, live with, or
otherwise align himself with any woman
with minor children without the express
prior approval of his therapist and
community supervision agent;
8.
1
Submit to fingerprinting and
photographing within 48 hours upon
sentencing;
He shall not enter the family
residence/property at any time without
Kentucky Revised Statutes (KRS) 510.110.
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the express prior approval of his
therapist and community supervision
agent;
9.
He shall not become involved as a
supervisor, instructor, leader, or
participant in any youth oriented
organizations;
10.
He shall pay the Department of Public
Advocacy fee of $52.50 within 6 months
after discharge.
After serving his two-year sentence, Anglin was
released from prison on June 20, 2003.
He signed a Condition of
Supervision, which among other things, prohibited him from
possessing any alcoholic beverage.
On January 7, 2004, the
Commonwealth filed a motion to set aside Anglin’s three-year
conditional discharge because he failed to comply with the terms
and conditions of the order.
A hearing was held on the
Commonwealth’s motion on January 22, 2004.
Lynn Estes, Anglin’s
probation and parole officer during the time of the alleged
violations, testified2 that on January 2, 2004, he was contacted
by the Richmond Police Department, who were attempting to locate
Anglin in connection with another charge.
Estes stated that
Anglin’s last known address was in Berea and that Anglin was
scheduled to check in with him later that day.
2
The police
It is unclear from the record the exact date Estes began supervising Anglin
as his probation and parole officer. However, the record does indicate that
at the time Anglin was absent from his first appointment with Kevin Conlee,
he was under the supervision of Mark Davidson, a probation and parole
officer. At the time of his second absence from treatment with Conlee,
Anglin was under the supervision of Estes.
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officer informed Estes that he suspected Anglin was living in a
hotel in Richmond instead of Berea.
Later that day, Anglin
called Estes and informed him that he could not make his
scheduled appointment. During the conversation, Estes asked
Anglin about his residence.
Anglin first denied living in the
hotel in Richmond, but then admitted he was living there.
When
Anglin reported at his rescheduled meeting with Estes on January
7, 2004, Estes and a Richmond police officer took Anglin to the
hotel room for a home visit.
The hotel manager told Estes that
Anglin had been living in the hotel since September 24, 2003,
and that Anglin’s mother paid the rent.
According to Estes,
January 2, 2004, was the first time he had knowledge of Anglin’s
change of residence.
During the home visit, four cans of beer were
discovered in the refrigerator of Anglin’s hotel room.
Possession of alcohol is a violation of the terms of Anglin’s
conditional discharge.
Estes also stated that a black trash bag
of children’s clothing was discovered in Anglin’s hotel room.
Apparently, these items were held as possible evidence in
connection with other charges.
Estes testified that Anglin failed to attend two
sessions of sex offender treatment, conducted by Kevin Conlee,
the social services clinician.
The Commonwealth presented two
letters, dated October 3, 2003, and November 7, 2003, from
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Conlee to Anglin’s probation officers, Mark Davidson3 and Estes.
These letters indicated that Anglin “[d]id not attend his/her
scheduled appointment for an individual session [and] . . . did
not [c]all.”
The first letter, dated October 3, 2003, further
stated, “I can terminate on one more unexcused absence.”
Anglin did not testify at the revocation hearing.
Following Estes’s testimony, the trial court determined that
Anglin had violated the terms of his conditional release.
In a
handwritten order, entered on January 23, 2004, the trial court
revoked Anglin’s conditional discharge “[i]n order to protect
the public[.]”
The trial court found that Anglin had violated
the terms of his conditional discharge when he failed to attend
sex offender treatment as directed, changed his residence
without permission, and falsely reported his residential address
to an officer.
This appeal followed.
Anglin claims the trial court erred in revoking his
conditional discharge because he was denied due process at the
hearing.
Anglin contends that due to Conlee and Davidson being
absent from the hearing, he was denied his right to confront
adverse witnesses.
Anglin argues that the introduction of the
letters from Conlee regarding his absences constituted
impermissible hearsay because Conlee and Davidson were not
available for cross-examination.
3
Davidson was Anglin’s probation and parole officer prior to Estes.
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Our review of the trial court’s decision to revoke
Anglin’s conditional discharge is limited to determining whether
it abused its discretion.4
The Commonwealth is required to prove
the grounds for revocation by a preponderance of the evidence.5
With regard to parole revocation proceedings, the United States
Supreme Court, in Morrissey v. Brewer,6 stated, “[w]hat is needed
is an informal hearing structured to assure that the finding of
a parole violation will be based on verified facts and that the
exercise of discretion will be informed by an accurate knowledge
of the parolee’s behavior.”
Under KRS 533.050(2),7 a court may revoke or modify a
conditional discharge following a hearing where the defendant is
represented by counsel and after a written notice of the grounds
for revocation has been given.
A revocation hearing must be
conducted in accordance with minimum requirements of due process
4
Tiryung v. Commonwealth, 717 S.W.2d 503, 504 (Ky.App. 1986).
5
Rasdon v. Commonwealth, 701 S.W.2d 716, 719 (Ky.App. 1986) (citing Murphy v.
Commonwealth, 551 S.W.2d 838, 841 (Ky.App. 1977)).
6
408 U.S. 471, 484, 92 S.Ct. 2593, 2602, 33 L.Ed.2d 484 (1972).
7
KRS 533.050(2) states:
The court may not revoke or modify the
conditions of a sentence of probation or
conditional discharge except after a
hearing with defendant represented by
counsel and following a written notice
of the grounds for revocation or
modification.
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of law;8 however, the formal rules of evidence do not apply.9
A
revocation hearing must be flexible enough to consider evidence
such as letters, affidavits and other material that would not be
admissible in an adversarial criminal trial.10
Moreover, in a
revocation hearing, there is no absolute right to confront
witnesses, especially when the witnesses’ reliability can be
easily ascertained.11
Conditional discharge is comparable to
probation in that it is a privilege, not a right.
A defendant
8
Morrissey, 408 U.S. at 489, lists the following minimum requirements of due
process:
(a) written notice of the claimed violations of
parole; (b) disclosure to the parolee 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 parole.
9
Kentucky Rules of Evidence (KRE) 1101(d)(5), states:
(d)
Rules inapplicable. The rules (other than with respect to
privileges) do not apply in the following situations:
. . .
(5)
Miscellaneous proceedings. Proceedings for extradition or
rendition; preliminary hearings in criminal cases;
sentencing by a judge; granting or revoking probation;
issuance of warrants for arrest, criminal summonses, and
search warrants; and proceedings with respect to release on
bail or otherwise.
(See also Childers v. Commonwealth, 593 S.W.2d 80, 81 (Ky.App. 1979); and
United States v. Farmer, 512 F.2d 160 (6th Cir. 1975)).
10
Marshall v. Commonwealth, 638 S.W.2d 288, 289 (Ky.App. 1982)(quoting Gagnon
v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct 1756, 1760, 36 L.Ed.2d 656 (1973)).
11
Marshall, 638 S.W.2d at 289.
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may retain his status as a conditional dischargee or a
probationer provided the court does not find that the defendant
violated the conditions of his discharge or probation.12
The letters from Conlee, reporting Anglin’s unexcused
absences from his mandatory sex offender treatment, were
included as a part of Anglin’s file which was retained by his
probation and parole officer, Estes.
Estes testified at the
hearing, therefore, Anglin was afforded the opportunity to
cross-examine him.
Under the due process standards required for
a revocation proceeding, the letters from Conlee to Davidson and
Estes concerning Anglin’s absences from sex-offender treatment
were admissible despite their element of hearsay.
Thus, the
trial court did not abuse its discretion by allowing the
correspondence from Conlee to be admitted into evidence.
Having concluded that the trial court in revoking
Anglin’s conditional discharge did not deny Anglin his right to
due process, the order of the Madison Circuit Court is affirmed.
ALL CONCUR.
12
Tiryung, 717 S.W.2d at 504 (quoting Brown v. Commonwealth, 564 S.W.2d 21
(Ky.App. 1977)).
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Samuel N. Potter
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General
Natalie Lewellen
Assistant Attorney General
Frankfort, Kentucky
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