STANLEY (BRANDON) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: MARCH 4, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-002321-MR
AND
NO. 2009-CA-002322-MR
AND
NO. 2009-CA-002323-MR
BRANDON STANLEY
v.
APPELLANT
APPEAL FROM LETCHER CIRCUIT COURT
HONORABLE SAMUEL T. WRIGHT III, JUDGE
ACTION NOS. 08-CR-00026, 08-CR-00155, AND 08-CR-00156
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: KELLER, NICKELL, AND STUMBO, JUDGES.
STUMBO, JUDGE: In this consolidated action, Brandon Stanley appeals from an
order of the Letcher Circuit Court sustaining the Commonwealth’s motion to
revoke his probation. Stanley argues that he was denied due process of law when
the Commonwealth failed to provide him with adequate notice of the reasons it
was seeking revocation. We must conclude that Stanley received proper notice of
the allegations in support of the Commonwealth’s motion to revoke his probation,
and accordingly affirm the order on appeal.
The facts are not in dispute. Stanley was arrested on October 27,
2007, and charged with DUI 4th Offense, reckless driving and related offenses. He
was placed on home incarceration while the charges were pending, and
subsequently was charged with Escape in the second degree after allegedly
violating the terms of his home incarceration. Stanley pled guilty to the DUI 4th
offense and related charges, and was sentenced to five years in prison. The
sentence was probated for five years. He later pled guilty to the Escape charge and
received a two-year sentence, to be probated for five years.
On April 26, 2009, Stanley was charged with Criminal Possession of a
Forged Instrument, 1st Degree. The charge arose from an incident occurring on
April 25, 2009, at the Pine Market gas station in Letcher County, Kentucky. A gas
station employee called the Whitesburg police after two individuals attempted to
purchase merchandise with a forged $10 bill. When the clerk realized that the bill
was a forgery, one of the two individuals attempted to retrieve the bill from the
clerk. The individuals left the gas station before the police arrived, but the incident
was captured on videotape.
Around the same time, Officer Tyrone Fields, who had earlier
responded to the Pine Market gas station, received an anonymous tip from a citizen
who reported that his children had spent the night at the home of Stanley’s
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girlfriend and overheard a conversation about counterfeit money and had seen
counterfeit bills. Officer Fields went to the home of Stanley’s girlfriend where he
recognized Stanley as being one of the individuals on the videotape. Officer Fields
arrested Stanley and charged him with Possession of a Forged Instrument, 1st
Degree. Stanley’s alleged accomplice was also identified.
Thereafter, the Commonwealth filed a motion in Letcher Circuit Court
seeking to revoke Stanley’s probation. As a basis for the motion, the
Commonwealth alleged that Stanley was charged with Possession of a Forged
Instrument, 1st Degree. The Commonwealth filed a second motion to revoke
Stanley’s probation on July 9, 2009. In support of the second motion, the
Commonwealth again alleged that Stanley was charged with Possession of a
Forged Instrument, but also alleged that he violated his probation by associating
with a known felon.
A hearing on the first motion was conducted on July 22, 2009,
whereupon the court found that Stanley violated the terms of his probation. An
amended order was rendered on November 25, 2009, sentencing Stanley to seven
years in prison on the underlying charges. The second motion was withdrawn as
moot. This appeal followed.
Stanley now argues that he was denied due process of law when he
did not receive adequate notice of the Commonwealth’s basis for seeking probation
revocation. He maintains that the Commonwealth’s first motion alleged that he
violated the terms of his probation by being arrested for Possession of a Forged
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Instrument. He goes on to claim, however, that the basis for the court’s revocation
was the allegation that he associated with a known felon, namely Louis Hampton –
a claim for which he was not given notice. In Stanley’s view, since the motion did
not raise the issue of his alleged association with Hampton, he was not availed of
the opportunity to prepare possible defenses to this argument at the revocation
hearing. As such, he contends that he was deprived of due process. He seeks an
order vacating the circuit court’s order revoking his probation.
We have closely examined the record and the law, and cannot
conclude that Stanley was deprived of due process of law arising from the
Commonwealth’s alleged failure to provide adequate notice of its basis for seeking
parole revocation. Stanley’s argument centers on his claim that the order revoking
his probation was based on the court’s determination that Stanley associated with a
known felon in violation of the terms of his probation. This claim is refuted by the
record. Contrary to Stanley’s claim, the Letcher Circuit Court’s November 9, 2009
Order of Probation Revocation does not set out as its basis a finding that Stanley
associated with a known felon. Rather, the order states in clear and unambiguous
terms the finding that Stanley was arrested and indicted on the charge of Criminal
Possession of a Forged Instrument, 1st Degree. The order makes no mention of
Stanley’s alleged association with a known felon. While Stanley correctly notes
that the issue of his alleged association with a known felon was addressed by the
court in the July 22, 2009 hearing, it was not the basis for the court’s determination
that Stanley violated the terms of his probation.
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Proper notice of the alleged grounds for probation revocation must be
given in writing prior to the probation revocation hearing. Kentucky Revised
Statutes (KRS) 533.050(2); Rasdon v. Commonwealth, 701 S.W.2d 716, 717 (Ky.
App. 1986). It is uncontroverted that the Commonwealth gave Stanley notice of its
intention to assert that Stanley’s probation should be revoked based on his arrest
and indictment on the charge of Criminal Possession of a Forged Instrument, 1st
Degree. Additionally, the Commonwealth need only demonstrate by a
preponderance of the evidence that Stanley violated the terms of his probation.
Officer Fields presented ample and unrebutted testimony at the revocation hearing
to support such a finding. This evidence included his testimony regarding the
interview he conducted with the clerk of the Pine Market gas station; his
examination of the gas station’s videotape; the anonymous tip from the citizen who
reported that his children overheard a conversation about counterfeit money and
saw counterfeit bills at the home of Stanley’s girlfriend; and Officer Field’s
testimony that he recognized Stanley as one of the two individuals on the gas
station videotape.
Ultimately, Stanley’s claim of a deprivation of due process is refuted
by the record. Stanley was given proper notice of the Commonwealth’s basis for
seeking a revocation of his parole, and this same basis was cited by the court in its
order revoking Stanley’s probation. Accordingly, we find no error.
For the foregoing reason, we affirm the order of the Letcher Circuit
Court revoking Stanley’s probation.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Linda Roberts Horsman
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
J. Hays Lawson
Assistant Attorney General
Frankfort, Kentucky
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