JAMES W. FISHER, III v. COMMONWEALTH OF KENTUCKY
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RENDERED:
January 30, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 96-CA-0804-MR
JAMES W. FISHER, III
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE MARY NOBLE, JUDGE
ACTION NO. 94-CR-27
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * * * *
BEFORE:
ABRAMSON, COMBS, and GARDNER, Judges.
ABRAMSON, JUDGE:
Appellant James W. Fisher, III appeals from
revocation of his probated sentence of seven years.
He maintains
that he was deprived of a neutral and detached judge to determine
whether his probation should be revoked, that the trial judge
abused her discretion in deciding to revoke his probation when he
had complied with the conditions of probation to the extent that
he was able, and that his counsel during the revocation
proceedings was ineffective.
Having reviewed the evidence
presented at the revocation hearing and the applicable law, we
affirm.
On March 11, 1994, Fisher entered a guilty plea to an
amended charge of second-degree robbery and first-degree
promoting contraband.
Although the probation officer recommended
against granting probation to Fisher, the trial judge sentenced
him to seven years on the robbery charge and one year for
promoting contraband, with the sentences to run concurrently.
She then placed Fisher on probation with a number of conditions,
including completion of a substance abuse program within six
months, restitution to the robbery victim, no use of alcohol or
drugs, and six-months' service in the Fayette County Detention
Center.
The trial judge overruled Fisher's motion for shock
probation on July 20, 1994.
She also denied his motion to modify
the terms of probation on August 17, 1994.
Following Fisher's
twelve-month and thirty-day concurrent sentences for subsequent
convictions on wanton endangerment and operating a vehicle on a
suspended license, on April 17, 1995, the Office of Probation and
Parole sought to modify his probationary terms.
Instead of
revoking his probation, however, the trial judge ordered him to
apply for drug treatment after his release from his misdemeanor
sentences.
Again, on February 9, 1996, Fisher's probation officer
filed an affidavit with the court seeking to revoke his probation
for, among other reasons, failure to report to him and failure to
enter an in-house drug treatment facility, both of which were
conditions of Fisher's probation.
counsel stipulated probable cause.
held on March 8, 1996.
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On March 1, 1996, Fisher's
The revocation hearing was
On the issue of Fisher's failure to report, Probation
Officer Cecil L. Mobley testified at the hearing that the last
official appointment kept by Fisher with the probation office was
October 17, 1995.
Mobley did not see Fisher between the April
17, 1995, court date and November 1995, at which time he visited
Fisher at home after he had received a gunshot wound.
At that
time Fisher told Mobley that he was scheduled to return to the
hospital for further care, but Mobley later learned that Fisher
never returned to the hospital.
Although Fisher visited the
probation officer on February 9, 1996, he failed to keep a
February 12, 1996 appointment with Mobley.
Regarding the condition that Fisher enroll in an inhouse drug treatment facility, Mobley testified that he visited
Fisher at the Hope Center.
They discussed Fisher's enrollment in
an in-house treatment center in Cincinnati.
Following Fisher's
statement that his grandfather would provide the money for that
treatment, Mobley obtained a Court Order for Fisher to enroll
there.
When Mobley went to the in-house treatment facility to
see Fisher, he learned that Fisher had never enrolled there.
During Fisher's testimony at the hearing, he did not deny either
failing to complete a drug treatment program or failing to report
to his probation officer or treatment center as ordered.
At the conclusion of the hearing, Mobley answered in
the negative when the trial judge asked whether he believed that
Fisher could be supervised.
The trial judge agreed with the
officer's evaluation, finding that Fisher had not taken advantage
of the rehabilitation opportunities offered to him.
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She then
revoked Fisher's probation.
The trial court's March 11, 1996
Order Revoking Probation states that Fisher violated his
probation by failing to report and failing to enroll in a
treatment program.
Fisher contends first that he was deprived of a neutral
and detached judge at his probation revocation proceeding.
Citing several instances when the trial judge expressed concern
about Fisher's disrespect toward the court, he argues that she
"expressed an obvious dislike toward" him throughout the
proceedings.
Fisher's argument fails for two reasons.
First,
when Fisher supposedly sensed the judge's "dislike," he had the
opportunity to challenge the court's continued presence in his
case.
However, not once during the proceedings against him did
Fisher seek recusal of the trial judge by pursuing the statutory
remedies provided in KRS 26A.015 or KRS 26A.020.
Second, the facts of the case belie any genuine concern
about the trial judge's "dislike" of Fisher.
Initially, in March
1994, she placed Fisher on probation, choosing to look at his
potential for successful probation and ignoring the probation
officer's recommendation against probation for Fisher.
Even
after Fisher was convicted of two misdemeanors in early 1995, the
trial judge modified his probation instead of revoking his
probation.
Fisher also claims that the trial judge had prejudged
his case prior to the revocation hearing.
At the preliminary
probable cause hearing one week before the revocation hearing,
the trial judge stated that "it is a fact" that Fisher did not
report to the drug center when he was ordered.
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In doing so, she
was merely responding to Fisher's stipulation of probable cause
and his admission earlier in the hearing that he had not reported
as ordered.
Fisher's second contention is that the trial judge
abused her discretion when she revoked Fisher's probation after
the March 8, 1996 hearing, because he had complied with the
conditions of probation to the extent that he was able.
The
testimony at the hearing was conflicting about whether Fisher,
due to his gunshot wound, was able to enroll in the Cincinnati
drug treatment facility at the time that Mobley had arranged for
his admission.
Even if the Commonwealth failed to prove Fisher's
violation by a preponderance of the evidence on this violation,
Fisher's repeated failure to report to his probation officer was
proved by a preponderance of the evidence.
In Messer v.
Commonwealth, Ky. App., 754 S.W.2d 872 (1988), the Court stated
that whether a revocation is based upon one violation or more is
not important as long as the evidence supports at least one
violation.
The trial judge here did not abuse her discretion
when she ordered Fisher's probation revoked.
See Tiryung v.
Commonwealth, Ky. App., 717 S.W.2d 503 (1986) (appellate court
review limited to whether trial court abused discretion in
revoking probation).
Fisher's third argument is that he was deprived of
effective assistance of counsel at his probation revocation
hearing due to his counsel's alleged lack of preparation.
By
statute, a defendant is entitled to counsel during probation
revocation proceedings.
KRS 533.050(2).
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However, the issue of
ineffective assistance of counsel cannot be considered on appeal
unless it has already been raised by a post-hearing motion.
See
White v. Commonwealth, Ky. App., 695 S.W.2d 438 (1985).
Following revocation, the proper method for challenging counsel's
effectiveness is by a motion to vacate pursuant to RCr 11.42.
See e.g., Wright v. Commonwealth, Ky. App., 953 S.W.2d 611
(1997); MacLaughlin v. Commonwealth, Ky. App., 717 S.W.2d 506
(1986).
For the foregoing reasons, the Fayette Circuit Court's
order revoking Fisher's probation is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Sally Wasielewski
Fayette County Legal Aid, Inc.
Lexington, Kentucky
A. B. Chandler III
Attorney General
Elizabeth A. Myerscough
Assistant Attorney General
Frankfort, Kentucky
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