GOLDSMITH (WILLIAM D.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: OCTOBER 23, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001685-MR
WILLIAM D. GOLDSMITH
v.
APPELLANT
APPEAL FROM HICKMAN CIRCUIT COURT
HONORABLE TIMOTHY A. LANGFORD, JUDGE
ACTION NO. 07-CR-00001
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON AND KELLER, JUDGES; KNOPF, 1 SENIOR JUDGE.
KELLER, JUDGE: Goldsmith appeals the revocation of his probation. After
review, which we will discuss at length below, we affirm the order of the Hickman
Circuit Court revoking Goldsmith’s probation.
1
Senior Judge William L. Knopf sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
FACTS
At the time of these events, Goldsmith was dating Cari Moore
(hereinafter Moore). According to the Uniform Citation, Goldsmith was initially
charged with possessing a single forged check, while his girlfriend possessed the
other two. The checks had been written from Moore’s grandmother’s checking
account which had been closed due to the death of the grandmother. Goldsmith
was charged by information, on January 17, 2007, with three counts of violating
Kentucky Revised Statute (KRS) 516.060, criminal possession of a forged
instrument in the second degree. The total amount of value of the checks was
$150.00.
Counsel for Goldsmith entered his appearance on January 30, 2007.
On February 15, sixteen (16) days later, Goldsmith was arraigned and entered a
guilty plea to all three counts in the information. It appears that he and Moore
were also facing charges in neighboring Carlisle County and that a “package deal”
had been worked out resolving both cases. The plea offer in the instant case was a
sentence of imprisonment for one year on each count, to be served consecutively
for a total of three years in exchange for his plea of guilty.
The sentencing hearing was held on March 1, 2007, wherein
Goldsmith moved the court to grant him probation. The Commonwealth opposed
the immediate probation request. The court then stated that it would not agree to
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probate Goldsmith on a three year sentence, but would consider immediate
probation to a drug treatment program if Goldsmith were to agree to the maximum
term of imprisonment (five years) on each of the charges, for a total of fifteen
years. The Commonwealth opined that this arrangement would be “setting
[Goldsmith] up for failure” with a fifteen year sentence and stated that the
Commonwealth would prefer “shock” probation to a drug program on the original
plea bargain of three years. Despite the Commonwealth’s vocalized trepidation,
and with woefully inadequate time for consultation with counsel, 2 Goldsmith
persisted in his pursuit of immediate probation. 3 Goldsmith had likewise been
sentenced to fifteen years in the case in Carlisle County in which, Judge Langford
was also the presiding judge. The court granted probation and Goldsmith entered
treatment at Lifeline Ministries, a religious based treatment program.
On June 7, 2007, the court held a hearing on allegations that
Goldsmith had violated the terms of his probation via his dismissal from Lifeline.
The alleged violation was due to using a cellular phone to text message his codefendant, Moore, more than 100 times while in treatment. The record reflects
2
The record reflects that less than three minutes passed between the time the plea agreement
was discussed with the court and the time of acceptance by Goldsmith. The majority of
Goldsmith’s counsel’s advice is audible on the record. At no time during this brief discussion
between attorney and client is there any mention of the potential dire consequences of this course
of action.
3
Three days prior to his sentencing hearing, Goldsmith turned nineteen years of age.
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Goldsmith was given a number of warnings that this violation of the rules at
Lifeline could result in his dismissal from the program and that he had refused to
comply with the discipline imposed regarding the cell phone. 4 Goldsmith
stipulated to violating the terms of his probation, and was briefly questioned by his
counsel as follows: 5
Defense counsel: Can you state your name for the record
please?
Goldsmith: William Dustin Goldsmith.
Defense: And how old are you, Mr. Goldsmith?
Goldsmith: 19.
Defense: Um is it true that you had your probation
revoked in Carlisle County?
Goldsmith: Yes sir.
Defense: Ok and what was the result of that?
Goldsmith: Uh, they revoked me in Carlisle.
Defense: Right and now you have a 15 year sentence?
Goldsmith: Yeah.
Defense: Correct?
4
This dismissal from Lifeline also resulted in a probation revocation hearing in Carlisle County.
5
Goldsmith was represented by different counsel at the revocation hearing than he had
previously been represented by during the underlying case.
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Goldsmith: Yeah.
Defense: You were being revoked for having a cellular
phone at Lifeline, is that correct?
Goldsmith: Yes sir.
Defense: And you were receiving treatment at Lifeline
Ministries?
Goldsmith: Yes sir.
Defense: Um and now essentially, as you understand, the
court can sentence you or revoke your probation the full
15 years in this jurisdiction?
Goldsmith: Yes.
Defense: Is that correct?
Goldsmith: Yes sir.
Desense: Ok. No further questions.
The court asked Goldsmith questions regarding the allegations, as follows:
Judge: So you were well aware that you had to complete
their program, you couldn’t just violate the rules, weren’t
you?
Goldsmith: I didn’t know that rehab was church based
rehab. Y’all just rushed me into that. I wasn’t ready for
that.
Judge: You mean you didn’t want to go to that rehab?
Goldsmith: Nobody told me nothing about it. I figured I
was going there to get help. All it is, is like church.
That’s all it is.
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Judge: It didn’t help you any?
Goldsmith: No sir.
When asked about the cell phone text messages, Goldsmith advised
the court that he had been found “not guilty” on the charge of harassment in
another county regarding the messages. 6
In his argument to the court, Goldsmith’s attorney requested that the
original sentence be altered to run concurrently, for a total of five years, citing
Goldsmith’s age, the non-violent nature of the offense, the amounts of the checks,
and the fact that fifteen years was an unduly harsh punishment given the
circumstances. The Commonwealth countered with the fact that Goldsmith had
been given a “wonderful opportunity” which he squandered.
The trial court then noted the stipulation of violation and the
following occurred after the court announced that it would run the sentences in
Carlisle County and Hickman County consecutively:
Judge: Really thought I would, Mr. Goldsmith, but an
answer of “no excuse” would have been a whole lot
better than you telling me that its church based. I can’t
imagine that anything up there was designed to hurt you
or inflict anything on you other than help. Those words
make me want to run this consecutive.
Goldsmith: F***in’ do it.
Judge: What say son?
6
The record reflects that the harassment charge was dismissed.
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Goldsmith: I said do it.
Judge: Ok.
(voice from off camera: Mr. Goldsmith try to remain
silent.)
Defense counsel: Sir I would just – again I understand
the court’s made its decision but again, 30 years for this
is unduly harsh.
Judge: I think you’re right.
Defense counsel: Regardless of this . . .
Judge: I think you’re right but your defendant’s attitude
is not the best in the world and once he wants to come
back, I’ll be glad to look at it another day but today its
going to be consecutive for a total of 30 years in the
penitentiary consecutive with Carlisle County 07-CR001. Give you a little time to think about that Mr. Mills.
You may decide you want to ask for help again, I’ll be
glad to hear from you, the door’s not shut to that. But
you best work on a little attitude adjustment between now
and then.
Defense counsel: Yes sir.
Goldsmith: Maybe you all should work on your little
doings.
Prosecutor: Mr. Goldsmith please be quiet. Be quiet.
Goldsmith: I thinks its pretty crappy you are gonna give
me 30 years for f***ing getting kicked out with a cell
phone. That’s f***in’ crazy.
Judge: Sheriff, remove the defendant from this
courtroom.
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After the entry of the order revoking his probation, Goldsmith through
Mills, moved the court on July 16, 2007, to reconsider the fifteen year sentence.
At the hearing on the matter, 7 the following exchange took place:
Judge: Commonwealth v. William Dustin Goldsmith
Defense counsel: Judge, that’s my motion to reconsider
the court’s decision in his probation revocation hearing to
run –
Judge: Mr. Goldsmith was the man that cursed
*inaudible* in this courtroom.
Defense counsel: He did, Judge. Mr. Goldsmith . . .
Judge: Overruled.
Judge: I will take this under advisement but is there
anything you want to say, Mr. Mills?
Defense counsel: (shakes head) Again, I just reiterate
that 30 years for 3 class D felonies is unduly harsh.
Judge: The court will say on the record that you are
100% right. An idiot. But I know if you could tell me
some way I could punish him for his outburst in the
courtroom other than that, I’ll be glad to consider it. But
the problem I’ve got is that young man sat over there
with me having the word concurrent all but written on a
piece of paper and he convinced me to consecutive. He
was gonna say whatever he wanted to say and if he didn’t
hear what he wanted to hear he was gonna take it out on
everybody. He can curse in front of me all he wants to,
other than respect for this bench but when he starts doing
7
Goldsmith was not present in the courtroom during this “hearing”.
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it in front of my clerks and everybody else in this
courtroom, that’s a whole different ballgame.
Defense counsel: I understand Judge. (head down while
speaking).
Judge: You got longer. You still got some 110 days to
file this motion. You may convince me later to do
something for him cause I agree with you, 30 years is too
harsh. But, its also too fresh in my memory what he sat
right over there and did last time. Overruled.
Subsequently, there were no further motions filed by Goldsmith.
Instead, this appeal followed.
STANDARD OF REVIEW
Goldsmith argues as to two errors 8 for our review. First, that the
probation revocation hearing violated minimal due process requirements; and
second, that the trial court could have revoked probation and punished Goldsmith
for criminal contempt contemporaneously rather than running the sentences
consecutively. The standard of review of a probation revocation order is limited as
to whether the trial court abused its discretion in revoking the probation. Tiryung
v. Commonwealth, 717 S.W.2d 503, 504 (Ky. App. 1986), quoting Brown v.
Commonwealth, 564 S.W.2d 21 (Ky. App. 1977). It is well settled law that
probation is a privilege and not a right. “In the first place, it is entirely within the
discretion of the trial court whether a defendant shall be given his liberty
8
Goldsmith initially argued three errors occurred, but in his reply brief, Goldsmith withdrew
one of his arguments.
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conditionally. This is regarded as a privilege or a ‘species of grace extended to a
convicted criminal’ for his welfare and the welfare of organized society.” Ridley v.
Commonwealth, 287 S.W.2d 156, 158 (Ky. 1956), quoting Darden v.
Commonwealth, 277 Ky. 75, 125 S.W.2d 1031, 1033 (1939). “The test for abuse
of discretion is whether the trial judge's decision was arbitrary, unreasonable,
unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993
S.W.2d 941, 945 (Ky. 1999).
ANALYSIS
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.
KRS 533.030. In this case, Goldsmith stipulated that he had, indeed, violated the
terms of his probation. However, he now maintains that his due process rights
were violated during the hearing on the matter. The Commonwealth correctly
points to the fact that this claim of error is unpreserved and therefore, our review
must be for palpable error.
Kentucky Rule of Criminal Procedure (RCr) 10.26 establishes the
standard of review when error is not brought to the attention of the trial court. In
order for such error to be deemed palpable error it must affect the substantial rights
of a party and constitute a manifest injustice. Only then may it be considered by a
court upon a motion for a new trial or by an appellate court on appeal.
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The context of the entire case must be analyzed to determine the
degree of prejudice; a substantial possibility must exist that the result would have
been different had the error not occurred. The Supreme Court of Kentucky
explained in Martin v. Commonwealth, 207 S.W.3d 1 (Ky. 2006):
A better understanding is gained from an examination of
RCr 10.26 with emphasis on the concept of “manifest
injustice.” While the language used is clear enough, we
further explain that the required showing is probability of
a different result or error so fundamental as to threaten a
defendant's entitlement to due process of law.
...
[A]n appellate court may then exercise its discretion to
notice a forfeited error but only if . . . the error seriously
affects the fairness, integrity or public reputation of
judicial proceedings. Johnson v. United States, 520 U.S.
461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).
...
To discover manifest injustice, a reviewing court must
plumb the depths of the proceeding . . . to determine
whether the defect in the proceeding was shocking or
jurisprudentially intolerable.
Martin v. Commonwealth, 207 S.W.3d 1, 3-4 (Ky. 2006).
Goldsmith argues that minimal due process standards were violated
when the trial court issued its order using the phrase “hereby finding the defendant
has violated the terms of his probation by committing other offenses and/or failure
to comply with the terms of his Probation Order.” We disagree with Goldsmith
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that due process requirements were not met in that the court did not set forth a
definite and specific reason stated for the revocation.
In Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L.Ed.2d 656
(1973), which followed Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33
L.Ed.2d 484 (1972), the minimum due process requirements for parole revocation
proceedings were outlined. These requirements were incorporated into KRS
533.050(2), which states in pertinent part: “[t]he 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.” This written notice must state the
evidence relied upon and the reasons for revoking Goldsmith’s probation. A trial
court's “[f]indings are a prerequisite to any unfavorable decision and are a minimal
requirement of due process of law[,]” in revocation hearings. Rasdon v.
Commonwealth, 701 S.W.2d 716, 719 (Ky. App. 1986), quoting Gagnon v.
Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L.Ed.2d 656 (1973).
It is clear, when applying the above principles to this trial court's
findings in this instance, we must hold that they were constitutionally sufficient,
even though the reasons for the revocation are not listed, and nor is the evidence
relied upon presented. This is only because Goldsmith stipulated to violating his
probation and thus, no “evidence” was presented. The trial court need not set forth
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any further written findings as, presumably, Goldsmith knew the basis to which he
had stipulated. We cannot hold that the written order in this matter reaches the
level of palpable error. While other issues present in this case certainly affect the
substantial rights of Goldsmith and constitute manifest injustice, this issue does
not.
We now turn to Goldsmith’s next argument, that is, that the trial court
erred when it did not find Goldsmith in contempt of court and punish him
separately for contempt, rather than run his sentences consecutively. Goldsmith
correctly points out that criminal contempt is an act that is disrespectful to the
court. In this instance, Goldsmith committed direct criminal contempt, in that the
act of disrespect was committed in the presence of the court.
There can be little doubt that Goldsmith could have been punished for
his contemptuous behavior during the revocation hearing and that the court did not
avail itself of that option. What is likewise clear, is that the consecutive sentence
was entered by the court on March 5, 2007. Kentucky Rules of Civil Procedure
(CR) Rule 59.05 states: “A motion to alter or amend a judgment, or to vacate a
judgment and enter a new one, shall be served not later than 10 days after entry of
the final judgment.” We have long held that a trial court loses jurisdiction to
amend or alter a previously entered judgment after ten days have passed, whether
or not the sentence is enhanced or diminished.
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In Commonwealth v. Gaddie, 239 S.W.3d 59, 62 (Ky. 2007), the
Supreme Court of Kentucky reviewed the myriad decisions upholding this
principle: “[W]hen one is tried for an offense, upon a finding of guilt, he is
entitled to have his sentence fixed with certainty and finality. Constitutional
restraints prevent subsequent enhancement.” Id. quoting Galusha v.
Commonwealth, 834 S.W.2d 696 (Ky. App. 1992).
Thus, had the court altered the original judgment and sentence, it
would have been a nullity. Goldsmith’s argument that the situation presented was
one in which the court could choose to either run the sentences consecutively,
concurrently, or find him guilty of criminal contempt is a fallacy. This erroneous
belief was apparently shared by the court and counsel on both sides, as it appears
from the record that they all believed the court could change the sentence from
consecutive to concurrent at that time. Nevertheless, at the revocation hearing, the
court had only the option to impose the original sentence, or continue Goldsmith’s
probation.
As previously stated, the court could have punished Goldsmith for
contempt of court for his repugnant behavior aside from a consecutive sentence of
thirty (30) years. When the court declared that it needed an “explanation” as to
how it could punish Goldsmith’s “outburst” other than by running the sentences
consecutively there was no answer attempted by either side to the court’s apparent
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lack of knowledge regarding the court’s ability to find Goldsmith guilty of
contempt.
This matter disturbs this Court for a number of reasons, not the least
of which is the disproportionately harsh sentence. The record reflects that
Goldsmith received minimal guidance from his attorney in reference to his initial
stipulation to the revocation. Further, the court imposed an overly harsh sentence.
Unfortunately, we cannot, at this time, grant Goldsmith relief from the choice he
hastily and ill-advisedly made at the hearing when he made his “deal”. Even the
trial court, when later denying the motion to reconsider, deemed the sentiment that
the sentence was unduly harsh, “100% right.” What is truly confounding is that
the trial court seemed not to remember that it was the trial court who constructed
this sentence. While the legislature made this maximum sentence possible under
the criminal code, there must be some rational discretion used by the court.
Indeed, the court should have the necessary inherent sense of justice to determine
the gravity of the offense, and to make the punishment fit the crime. In
Goldsmith’s case, the court apparently knew the sentence to be outsized, but,
nevertheless, imposed it.
For the foregoing reasons, we affirm.
KNOPF, SENIOR JUDGE, CONCURS.
DIXON, JUDGE, CONCURS IN RESULT ONLY.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Julia K. Pearson
Assistant Public Advocate
Frankfort, Kentucky
Jack Conway
Attorney General
Matthew R. Krygiel
Assistant Attorney General
Frankfort, Kentucky
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