JOHN STULL v. COMMONWEALTH OF KENTUCKY
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RENDERED: March 4, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001671-MR
JOHN STULL
APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE LEONARD L. KOPOWSKI, JUDGE
ACTION NO. 02-CR-00101
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, McANULTY, AND MINTON, JUDGES.
GUIDUGLI, JUDGE: John Stull appeals from an order of the
Campbell Circuit Court revoking his probation and ordering him
to serve a five year sentence.
Stull contends that his
constitutional rights to due process and equal protection of the
law were violated and that the trial court erred in revoking his
probation.
We affirm.
On July 25, 2002, Stull entered a guilty plea to the
charge of theft of a controlled substance (KRS 218A.1418; KRS
520.020).
In exchange, the Commonwealth dismissed the charge of
being a persistent felony offender first degree (KRS 532.080).
At the time of the plea, Stull was on parole for unrelated
charges not disclosed in the record.
However, at the revocation
hearing, Stull stated his parole did not expire until 2012.
Following his guilty plea, the court ordered a pre-sentence
investigation report and required Stull to contact the probation
and parole office in Kenton County, Kentucky.
Sentencing was
scheduled for September 4, 2002.
On the day of sentencing, Stull and his attorney
appeared in court.
The court entered a judgment and sentence on
plea of guilty on September 5, 2002.
The judgment noted that
Stull agreed with the “factual contends and conclusions
contained in the written report prepared by the Division of
Probation and Parole.”
Thereafter, the court sentenced Stull to
“5 years with the Kentucky Department of Corrections probated
for a period of 5 years reporting probation to the Department of
Probation and Parole.”
As conditions of probation, the court
ordered Stull to:
Receive a substance abuse evaluation and
complete any recommended treatment,
including aftercare; pay the court costs of
this action; pay a supervision fee of $15.00
per month while on probation; pay a $400.00
fee to the Campbell County Public Defender’s
Corporation and follow all the terms and
conditions as set forth by the probation
officer. All fees are payable through the
Campbell County Circuit Clerk’s Office by
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making monthly payments of $100.00 until
paid in full.
Following the sentencing hearing on September 4, 2002,
Stull reported to the Probation and Parole Office in Kenton
County and met with Cassandra Stella, a Probation and Parole
Officer.
Ms. Stella testified at the revocation hearing that
she transferred Stull’s case to the Probation and Parole Office
in Mason County, Kentucky, because Stull resided there and was
on reporting parole to Keith Fetters in that office.
At the
hearing, Mr. Fetters testified that Stull never physically
reported to his office, although he did call once.
Despite
Stull’s failure to report to Probation and Parole at that time,
no action was taken.
Mr. Fetters indicated that he was in the
process of revoking Stull’s parole based upon the Campbell
County conviction when Stull was arrested in Kenton County on
charges of fleeing or evading police in the first degree.
Based
upon the new charge, Stull was held in jail and subsequently
pled guilty to the new charges and his parole was revoked.
Stull was transferred to Luther Luckett Correctional Complex in
LaGrange.
The date of his guilty plea to the Kenton County
charges and the date of his parole revocation are not included
in the record before this Court.
On March 25, 2003, a deputy Campbell County Circuit
Clerk filed an affidavit stating that Stull had not made any
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payments towards the fines or costs previously ordered in this
case.
Based upon this affidavit, the circuit court issued a
bench warrant for Stull’s arrest.
Thereafter, on April 23,
2003, Probation and Parole Officer Stella filed an affidavit
indicating that Stull had a new conviction; that he had not
signed the conditions of supervision; and that he had absconded
from parole supervision.
Based upon these two affidavits, the
Campbell County Commonwealth Attorney’s Office filed a motion to
revoke Stull’s probation on May 27, 2004.1
Once the motion to
revoke probation was filed, the court appointed Stull a public
defender.
Stull also filed a pro se response to the motion.
On
July 20, 2004, a hearing on the motion to revoke probation was
held.
Stull was present and represented by counsel.
At the
hearing, Probation and Parole Officers Stella and Fetters
testified, as did Stull.
The court heard the testimony and
arguments of counsel and on the same day entered an order
revoking Stull’s probation and ordering him to serve the
previously imposed five-year sentence.
This appeal followed.2
On appeal, Stull contends Stella’s affidavit contained
perjured statements and therefore, should be stricken from the
record and not considered a basis for his revocation.
1
This is
There is nothing in the record nor did anyone state at the hearing why the
Commonwealth waited over one year to file this motion.
2
It should be noted that following Stull’s filing this appeal, he also filed
a CR 60.02(c) motion in the circuit court on August 24, 2004. While the
Commonwealth contends that motion was denied, no order is in the record and
that issue is not before this Court.
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based upon his contention that he was not under Stella’s
“active” supervision.
Stull argues that Fetters was his
Probation and Parole Officer and only Fetters could sign the
affidavit alleging Stull had absconded from his probation
supervision.
Stull also contends that he was never given any
conditions of probation to sign, thus he could not violate his
probation.
Finally, he argues that the trial court’s order must
be set aside for failure to make written findings.
Despite
Stull’s arguments to the contrary, we believe the affidavits
filed of record and the testimony presented at the hearing
support the circuit court’s action to revoke Stull’s probation.
In Marshall v. Commonwealth,3 this Court set forth the
due process rights that must be provided defendants at parole
revocation hearings.
This Court held:
In Morrissey v. Brewer, 408 U.S. 471,
92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) the
Supreme Court indicated that in parole
revocation hearings certain due process
rights must be provided to the defendant.
These include:
(a)
(b)
(c)
(d)
3
Written notice of the claimed
violations of parole;
Disclosure to the parolee of
evidence against him;
Opportunity to be heard in
person and to present witnesses
and documentary evidence;
The right to confront and
cross-examine adverse witnesses
(unless the hearing officer
638 S.W.2d 288 (Ky.App. 1982).
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(e)
(f)
specifically finds good cause
for not allowing
confrontation);
A “neutral and detached”
hearing body such as a
traditional parole board,
members of which need not be
judicial officers or lawyers;
and
A written statement by the
fact-finders as to the evidence
relied on and reasons for
revoking parole. Id. At 489,
92 S.Ct. at 2604 (emphasis
supplied in original)
The Court went on to say, however:
We emphasize there is no thought to
equate this second stage of parole
revocation to a criminal
prosecution in any sense. It is a
narrow inquiry; the process should
be flexible enough to consider
evidence including letters,
affidavits, and other material that
would not be admissible in an
adversary criminal trial. Id.
The essence of Morrissey was two-fold:
While it indicated certain rights must be
afforded the defendant in these hearings it
also emphasized that such hearings were not
criminal prosecutions and the full panoply
of rights due the defendant in criminal
prosecutions did not apply to parole
revocations. The Court emphasized that such
hearings were an “informal process.”
(Emphasis in original).
In Gargon v. Scarpelli, 411 U.S. 778, 93
S.Ct. 1756, 36 L.Ed.2d 656 (1973), the Court
held the reasoning of Morrissey also applied
to probation revocation proceedings. Again,
however, the Court emphasized the informal
nature of such proceedings and the fact that
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the defendant is not entitled to a “trial”
on the issues.4
Having thoroughly reviewed the record herein, it is
obvious that Stull was afforded all due process rights to which
he was entitled.
We do not believe the fact that Stella may not
have been his acting supervisor and that he did not sign any
written conditions of probation is controlling; rather the
essential elements are that he was placed on probation, failed
to report to Mr. Fetters, failed to pay his fines and costs, and
received a new conviction.
Stull was provided with notice of
the claimed violations of probation, advised of the evidence
against him, given an opportunity to be heard and present
evidence on his behalf, afforded the opportunity to confront and
cross-examine adverse witnesses before a “neutral and detached”
judge and received a written order that his probation had been
revoked.
In fact, at the hearing he not only admitted that he
had a new conviction, but added that he was under the influence
of drugs, was driving the wrong way on the street and fled
because Fetters had told him that his parole was going to be
revoked.
While we believe the trial court’s order is lacking in
specific findings as to the basis for the revocation, it is
clear that the evidence at the hearing and Stull’s own
admissions were a sufficient basis for the court’s action.
4
Id. at 289.
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For the foregoing reasons, the order of the Campbell
Circuit Court revoking Stull’s probation is affirmed.
MINTON, JUDGE, CONCURS.
McANULTY, JUDGE, CONCURS IN RESULT ONLY.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John Stull, pro se
LaGrange, KY
Gregory D. Stumbo
Attorney General
Jeffrey A. Cross
Assistant Attorney General
Frankfort, KY
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