DAVID JOHN KING v. COMMONWEALTH OF KENTUCKY
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RENDERED: July 17, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 97-CA-1429-MR
DAVID JOHN KING
v.
APPELLANT
APPEAL FROM McCREARY CIRCUIT COURT
HONORABLE PAUL BRADEN, JUDGE
CRIMINAL ACTION NO. 96-CR-00020
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * *
BEFORE:
BUCKINGHAM, EMBERTON and GUIDUGLI, Judges.
GUIDUGLI, JUDGE.
David John King (King) appeals from an order
of the McCreary Circuit Court that revoked his probation and
imposed a sentence of ten years in the state penitentiary.
Having thoroughly reviewed the arguments presented by appellant
and the applicable statutes and case law, as well as, the record,
we affirm.
On March 29, 1996, a McCreary County Grand Jury issued
an indictment charging King with first-degree criminal possession
of a forged instrument in violation of KRS 516.050.
The
indictment alleged that King had presented to a local bank a
forged income tax refund check in the sum of $878.
Prior to
disposition of this charge, King was indicted on another felony
charge of receiving stolen property over $300 in violation of
KRS 514.030.
That indictment alleged that on or about
November 2, 1996, King was in possession of a stolen shotgun
valued in excess of $300.
On December 23, 1996, King entered a guilty plea to
indictment number 96-CR-00020, the criminal possession of a
forged instrument, first degree.
At that time the second felony
indictment had been issued and King, the Commonwealth and the
court were fully aware of that fact.
Although the Commonwealth
had agreed to a probated sentence on the possession of forged
instrument charge, there was lengthy discussion concerning what
effect the new indictment would have.
The public advocate
advised King not to enter a guilty plea.
The Commonwealth
advised King that if he is found guilty of the new charge
(receiving stolen property) that the Commonwealth would seek
revocation of his probation.
The trial court specifically
advised King that if he was convicted of the receiving stolen
property charge in the future that his probation would be
revoked.
Despite these clear warnings, King knowingly and
voluntarily entered a guilty plea indicating that he was not
worried about the new charge and that he "just wanted to get this
over with."
The Commonwealth's recommendation on this charge was
ten (10) years probated for five (5) years.
The trial court
continued the matter for a pre-sentence report and final
sentencing.
The hearing for imposition of the final sentence was
held January 27, 1997.
At that hearing, King was represented by
a new public advocate.
During the hearing, the trial court again
went into specific detail as to what impact a guilty finding on
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the receiving stolen property charge would have on King's
probation.
The trial judge advised King that because of his
lengthy criminal record that the court did not believe King
deserved probation at that time.
However, the court stated that
it would reluctantly followed the Commonwealth's recommendation
of a probated sentence.
The trial court then addressed the issue
of the pending receiving stolen property charge.
The following
exchange took place:
THE COURT: Because you have a record that
does not, in my mind, truly justify
probation. However, because you have agreed
and you have a pre-sentence worked out of a
ten-year sentence in this case, and this is
quite a lengthy sentence, you understand, and
because of your health situation I am going
to go ahead and enter the sentence that the
two of you, you and the Commonwealth agreed
to. However, I do it with some reservation.
I want you to understand that, because of
your lengthy criminal record. Even though
most of it in the past ten years has been in
district court rather than in circuit court,
but you do have an extensive record.
MR. KING: But that's all behind me now
and there won't be no problem.
THE COURT: Well, I want you to understand
and I understand there's another charge
pending against you in this court and it's my
understanding that you were advised at the
time you agreed to this plea bargain that you
understood if you were found guilty on that
charge that that would revoke this probation.
Is there any question about that in your
mind?
MR. KING:
No, sir.
THE COURT: All right. Because if that
happens I don't want it to be brought up
later if there's any question about that.
And do you understand that I'm going to put
forth certain conditions which involve
alcohol and drugs and a few other things? If
you violate any of those conditions, you
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know, if you don't pay the $50 a month, for
example, this Court will not hesitate to
revoke your probation. I just want you to
understand that you're really going to have
to live at the foot of the cross. If you
don't, the next time you come in here, if
it's before me or before Judge--on this case
it would be in front of me, then I won't
hesitate to revoke your probation. I just
want you to understand that.
MR. KING:
I do.
THE COURT: All right. Is there anything
further that either you or your attorney
would like to say to the Court before we
finally pronounce sentence in this case?
MRS. CLARK (King's Public Advocate):
No, your Honor.
At the conclusion of the hearing, the trial court made the
following statement regarding King's probation:
THE COURT: It is further ordered on
completion of the aforesaid period of
probation the Defendant shall be finally
discharged provided he has complied with the
above-conditions of said probation and
further provided that no warrant issued by
the Court is pending against him and his
probation has not been revoked or extended.
It is further ordered that upon proper
hearing for that purpose it is determined the
Defendant has violated a condition of his
probation, the sentence of probation may be
revoked and set aside and the Defendant shall
thereupon be resentenced or the terms of the
sentence of probation may be modified and/or
the period of probation extended.
King was placed on reporting probation at the conclusion of the
sentencing hearing on January 27, 1997.
A jury trial on the receiving stolen property charge
was scheduled for April 9, 1997.
King was present and again
represented by the public advocate.
King made a motion for a
continuance due to the failure of certain witnesses to appear on
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his behalf (including his wife).
That motion was denied.
An
"off-the-record" discussion then ensued after which the parties
advised the court that they had reached a plea agreement in the
case.
The following exchange took place at the time concerning
the effect a guilty plea would have on King's probation.
MR. TRIMBLE (Commonwealth's Attorney): Judge, we've reached a
plea agreement in this case. Let me outline before the Court
with Mrs. Clark here so that we make sure we understand the
terms. I'm offering in return for a plea of guilty to recommend
a 90-day sentence to serve on a misdemeanor, being in possession
of stolen property under $300. I have also advised Mrs. Clark
and they are aware that Mr. King is on probation. I will seek to
revoke his probation. There's no agreement as to me not doing
that, but that I will seek to revoke his probation. He is aware
of that and in light of that he has agreed to accept the plea
aware of that fact.
MRS. CLARK:
That's correct, your Honor.
THE COURT: You're aware that if the Court
accepts your plea agreement that you will be
brought before the Court on revocation on
another sentence.
MR. KING:
Yes, sir.
THE COURT: There's no agreement on it.
Court would revoke. Do you understand?
MR. KING:
THE COURT:
*
In all likelihood the
Yes, sir.
Just so you understand.
*
Just have a seat.
*
THE COURT: But, see, from the standpoint
of the Commonwealth and from the standpoint
of this Court, we have no problem with it, so
what I'm saying is that if that, you know, if
the jail or whoever it is works it out, then
this Court has no problem with that, that's
what I'm saying. So, you know, if that
works, that works, but it's not up to us.
Now, if you were revoked on the other charge,
now you would be then rendered to the
Department of Corrections. Then that's a
different story, you understand. On the
misdemeanor charge you go to the local jail
and you're in charge of the local jail. If
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you were to be revoked and then that's a
different world and the Department of
Corrections is in charge then and I have no
idea what, what or where or what anything
happens after that.
MR. KING: You know, your Honor, if I am
revoked I'm going to lose my home and
everything I've got.
*
*
*
THE COURT: The indictment charged that on
or about the 2nd day of November, 1996 in
McCreary County, Kentucky you committed the
offense of receiving stolen property by
having in your possession a stolen 410
shotgun of a value of $300 or more which had
been stolen from Goldie Eagleton.
Does the Commonwealth have a motion as to the indictment?
MR. TRIMBLE: Yes, your Honor. In
consultation with the attorney for the
Defendant, Mrs. Clark, we've reached a plea
agreement. In return for a plea of guilty to
an amended misdemeanor charge and a sentence
of 90 days the Commonwealth would move to
amend the indictment to reflect the charge of
being in possession of stolen property with a
value of less than $300. The Commonwealth,
based upon the plea agreement, would
recommend a sentence of 90 days which would
commence this coming Sunday, which would be
April 13th, at 1:00 P.M.
The Commonwealth has further advised that
Mr. King had previously entered into a plea
agreement as to a felony charge and he has
advised the attorney for the Defendant that
this would not preclude the Commonwealth from
seeking revocation of his current probation,
based upon his conviction if he had a
conviction which may be in existence, that
is, if the Court accepts his plea on the
other case.
*
*
*
THE COURT: Now, in addition to that do
you understand that the Commonwealth has
indicated that you are on probation in this
court for a rather serious sentence and the
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Commonwealth has indicated that he would
attempt to revoke that probation?
MR. KING:
Yes, sir.
THE COURT: Do you understand that fully,
that there's a part of this as well?
MRS. CLARK:
MR. KING:
THE COURT:
That that's a possibility.
Yes, sir.
I mean th--well, right.
MRS. CLARK: If that's my understanding,
that, you know, they will try.
THE COURT: He's going to try to revoke
your probation. Do you understand that?
MR. KING:
Yes, sir.
THE COURT: Based on this guilty plea.
you understand that?
MR. KING:
Do
Yes, sir.
THE COURT: I don't want any
misunderstanding or any question about that.
MR. KING:
I understand.
THE COURT: All right. Now, if I reject
the plea I will inform you and will give you
a chance to withdraw it, or if I don't agree
with the recommended sentence I'll give you
an opportunity to withdraw your plea, or you
could persist in it and the Court could then
sentence you to whatever sentence would be
available to the Court up to 12 months. Do
you understand?
MR. KING:
*
Yes, sir.
*
*
THE COURT: Now, Mr. King, do you plead
guilty willingly, freely, and voluntarily
without any threats or force, promises or
pressure from any person or persons to cause
you to so plead?
MR. KING:
No, they didn't nobody force me.
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THE COURT: Now, knowing that you have all
the rights which the Court has described to
you, and knowing that the Commonwealth will
attempt to revoke your probation on the other
sentence, it is still your desire to waive or
give up all those rights by entering a plea
of guilty to the charge of knowingly
receiving stolen property under $300 and to
allow the Court to fix your punishment within
the range permitted by law of up to 12 months
in jail?
MR. KING:
Yes.
THE COURT: Mrs. Clark, do you acknowledge
you represent the Defendant in this action?
MRS. CLARK:
THE COURT:
MRS. CLARK:
Yes, sir.
Do you acknowledge the identity of the Defendant?
Yes.
This is David King.
THE COURT: Have you explained all the
Constitutional rights to the Defendant?
MRS. CLARK:
Yes, sir.
THE COURT: In your opinion does the
Defendant understand those Constitutional
rights and the nature of these proceedings
now being held?
MRS. CLARK:
Yes, sir.
THE COURT: Is the plea of guilty
consistent with your advice to the Defendant?
MRS. CLARK:
Yes, sir.
THE COURT: In your opinion based on your
having conferred with the Defendant, is the
Defendant's desire to plead guilty made
voluntarily, freely, intelligently, and
understandingly?
MRS. CLARK:
Yes, sir, it is.
THE COURT: The Court makes a finding of
fact that the Defendant's plea of guilty was
made voluntarily, freely, intelligently, and
understandingly. I accept your plea of
guilty. Let the Defendant's plea of guilty
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be accepted as pled and be entered in the
record.
As forewarned on April 25, 1997, the Commonwealth filed
a motion to revoke King's probation.
The reasons stated in the
motion were that King had violated the terms of probation in that
he was to:
(1) remain an good behavior; and (2) refrain from
violating the law in any respect.
The Commonwealth alleged that
King's guilty plea to receiving stolen property on April 9, 1997,
was a violation of his conditions of probation.
said motion was held April 28, 1997.
A hearing on
At that time, King argued
that his probation could not be revoked because the receiving
stolen property charge had occurred prior to his being placed on
probation.
As such, King claimed that he had not violated the
conditions of probation since he had not committed a new crime
after being placed on probation.
King testified that he did not
understand that his probation would be revoked, only that the
Commonwealth "was going to try to revoke it."
King also stated
that he thought he would have to commit a new crime, after the
probation was in force, before his probation would actually be
revoked.
Despite King's best arguments, the trial court revoked
King's probation and ordered him to serve ten (10) years
imprisonment.
Specifically, the trial court stated:
THE COURT: As I understand, it was a
condition of his probation that he not be
convicted on any other charge, including this
charge, and this charge specifically was
mentioned to Mr. King, and I understood from
what I heard that day that this charge could,
in fact, revoke Mr. King. And, quite
frankly, I was astonished when he said, I
plead guilty, and that's why I went over with
him very carefully before I accepted his plea
at all.
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*
*
*
THE COURT: I have to disagree with you,
counselor. I very distinctly recall
discussing and there's no question in my mind
that Mr. King understood exactly what he was
doing and no question in my mind that he
understood that if he pled guilty to any of
these charges that they are to be used as a
basis for his revocation, and that time has
come.
This appeal followed.
On appeal, King argues that his probation cannot be
revoked because he has not committed a new crime since the
imposition of probation.
Relying on KRS 533.020(1) appellant
states that the statute is very clear in its use of the language
"if a defendant commits an additional offense or violates a
condition... ."
In addition, he claims that KRS 533.030(5)
requires that he shall be given a written statement explicitly
setting forth the conditions of said probation.
In this case he
was given written probation conditions but which did not specify
revocation if he was convicted of the pending receiving stolen
property charge.
The Commonwealth responds that King was given
ample warning of the consequences of his actions and that the
trial court had discretion in the granting and revoking of
probation and that, on appeal, our review is limited solely to a
determination of whether or not the trial court abused is
discretion.
Both parties cite Brown v. Commonwealth, Ky. App., 564
S.W.2d 21 (1977).
In Brown, the Court held:
The appellant was on notice that commission
of any crimes would be a violation of
probation conditions. The revocation did not
amount to a sentence imposed for the crime of
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escape or the conviction of armed robbery
committed prior to the commencement of the
probationary period, but rather was an
imposition of the sentence which appellant
had already received for conviction of
another crime. Probation is recognized as a
privilege rather than a right. It is
entirely within the trial court's discretion
whether a defendant is given his liberty
conditionally. Ridley v. Commonwealth, Ky.,
287 S.W.2d 156 (1956). Since the revocation
of probation did not increase the sentence on
any of appellant's convictions and only
imposed a sentence which he had previously
received, there was no violation of the
prohibition of ex post facto law. (Citations
omitted).
Brown, 564 S.W.2d at 23.
In Keith v. Commonwealth, Ky. App., 689 S.W.2d 613
(1985), it was held that the trial court has wide discretion in
the revocation of probation.
If there is evidence to support a
finding that the defendant has violated the terms and conditions
of his probation and that the decision to revoke is not
arbitrary, then the trial court's determination will not be
disturbed.
In this case, King was thoroughly advised by the court
that a conviction for the receiving stolen property charge would
result in his probation being revoked.
In fact, the trial court
went to great lengths at three separate hearings to make sure
that he understood the serious consequences that would occur if
he was convicted of the separate charge.
Despite warnings from
the public advocate, the Commonwealth and the trial court, King
knowingly and voluntarily entered a guilty plea to both charges.
As such, he violated a stated, known condition of his probation
and must suffer the results.
Violation of any term of the
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probation warrants revocation.
App., 717 S.W.2d 503 (1986).
Tiryung v. Commonwealth, Ky.
The consequences (a ten year
sentence) in this case may seem harsh but they are the result of
King's actions and decisions and no one else.
The order of the McCreary Circuit Court is affirmed.
EMBERTON, JUDGE, CONCURS.
BUCKINGHAM, JUDGE, CONCURS IN RESULT ONLY AND FILES
SEPARATE CONCURRING OPINION.
BUCKINGHAM, JUDGE, CONCURRING BY SEPARATE OPINION.
I
agree with the majority that the trial court committed no error
in revoking King’s probation.
However, I believe that it is
important to note that when King was placed on probation and was
given a written statement explicitly setting forth the conditions
of his probation as required by KRS 533.030(5), none of the
fourteen listed conditions related to his conviction of the new
offense.
Ordinarily, King’s probation would not be subject to
revocation since he did not violate any of these written
conditions.
In this case, however, the trial judge explained to
King when he pled guilty that a conviction for the new charge
would result in revocation of his probation.
Although this
condition was inadvertently not made a part of the written
conditions of King’s probation, it was nevertheless a condition
which the trial judge specifically discussed with him.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Franklin P. Jewell
Louisville, KY
A. B. Chandler, III
Attorney General
Christopher M. Brown
Assistant Attorney General
Frankfort, KY
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