MARK ANTHONY COHRON v. COMMONWEALTH OF KENTUCKY
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RENDERED: March 19, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-000968-MR
MARK ANTHONY COHRON
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE F. KENNETH CONLIFFE, JUDGE
ACTION NO. 91-CR-002143
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, EMBERTON AND MILLER, JUDGES.
EMBERTON, JUDGE: This appeal centers upon the revocation of the
probation granted Mark Cohron from an enhanced sentence of ten
years’ imprisonment based upon his guilty plea to the offenses of
third-degree burglary and of being a persistent felon in the
first degree.
Cohron predicates his claim of due process
deprivations upon the technical grounds of lack of notice of the
revocation hearing and denial of an opportunity to review and
controvert the contents of his presentence investigation report.
We affirm.
Cohron was indicted with a co-defendant on charges of
third-degree burglary and of being a first-degree persistent
felony offender in connection with the theft of twenty pairs of
athletic shoes and two leather coats from a department store.
At
the time of this August 1991, burglary Cohron was on probation
from two separate sentences stemming from charges of third-degree
burglary, theft by unlawful taking over $100 and receiving stolen
property over $100.
On March 2, 1992, Cohron plead guilty to
charges for the August 1991, offense and was sentenced to five
years’ on the burglary III charge, enhanced to ten years’
imprisonment by virtue of the PFO I count.
The plea agreement
recited the Cohron was ineligible for probation because of his
PFO status under Kentucky Revised Statute (KRS) 532.080.
The
guilty plea was accepted and formal sentencing set for May 6,
1992.
After Cohron failed to appear for sentencing, a bench
warrant was issued and he was subsequently arrested.
At a
rescheduled sentencing hearing on July 20, 1992, Cohron moved to
withdraw his guilty plea and the matter was passed to August 26,
1992, for sentencing.
On that date, the motion to withdraw the
plea was denied and Cohron was sentenced in accordance with the
agreement.
Cohron subsequently filed a Ky. R. Civ. P. (CR) 60.02
motion for post-conviction relief relying upon a then recently
published case, Corman v. Commonwealth, Ky. App., 822 S.W.2d 421
(1991), to support his contention that it was error to conclude
at the time of his plea agreement that because of his status as a
persistent felony offender he was not eligible for probation.
order dated January 29, 1996, the trial judge granted Cohron’s
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By
motion, set aside the sentence entered on August 26, 1992, and
scheduled resentencing for February 21, 1996.
As evidenced by
the video record, the trial judge on that date probated Cohron’s
sentence for a period of five years subject to compliance with
specific conditions orally imposed.
Although it is clear from
the order entered on January 29, 1996, and the video record of
the resentencing on February 21, 1996, that the trial judge
vacated Cohron’s original ten-year sentence and entered a fiveyear period of probation subject to specified conditions, the
record does not disclose entry of a new written judgment of
sentence to replace the vacated original sentence.
By order of February 28, 1996, the trial judge denied a
motion by the Commonwealth to revoke Cohron’s probation as
evidenced by an order setting out the following conditions of
probation:
1. Defendant has violated the conditions of
his probation; however, in lieu of revocation
at this time shall continue under the
original conditions of probation.
2. Defendant shall seek and maintain
employment.
3. Defendant shall not become involved in
any illegal actions or become involved in any
substance abuse actions.
4. Defendant shall upon finding employment
pay the supervision fee.
5. Defendant shall pay the $40.00 fee for
use of the Public Defender’s Office.
The Commonwealth moved to revoke Cohron’s probation on
December 26, 1996, and again on January 15, 1997, following
Cohron’s failure to appear at the first hearing.
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The second
motion added supplemental grounds for revocation.
Of the
numerous violations alleged in the Commonwealth’s motions, three
were convictions for crimes committed while on probation, a
guilty plea to alcohol intoxication in Grayson District Court, a
guilty plea to attempted theft by unlawful taking over $300 and a
guilty plea to disorderly conduct.
A supervision report
supporting the Commonwealth’s motion indicated that two
additional charges were pending against Cohron, one of which
contained charges on three counts of wanton endangerment,
resisting arrest and two counts of unlawful transactions with a
minor.
The other pending charges were driving under the
influence, reckless driving, disregarding a traffic control
device and speeding.
As noted by the trial judge at the hearing
conducted on Mary 7, 1997, the latter charges stemmed from an
incident in which Louisville police officers observed Cohron
driving at 100 miles per hour in a 35 mile per hour zone.
The
report also contained numerous incidents of failing to cooperate
with required supervision, one of the terms of his probation.
At
the March 7 hearing, counsel for Cohron and the Commonwealth
informed the trial judge that they had discovered that no formal
document had been entered resentencing Cohron after his CR 60.02
motion had been granted.
The trial judge thereafter reiterated
the sentence which had been imposed on the video record on
February 21, 1996, revoked the probation which had been granted
on that date, and thereafter, entered formal documents to that
effect on March 28, 1997.
This appeal followed.
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Cohron argues in this forum that he was denied his
right to procedural due process in that: (1) neither he nor his
counsel were aware that a revocation hearing was going to be
conducted on March 7, 1997; and (2) the sentencing hearing
conducted on that date did not comply with the requirements of
RCR 11.02 or KRS 532.050.
We disagree.
The fallacy in Cohron’s contention with respect to lack
of notice of the revocation is that the record clearly reflects
the fact that Cohron did have notice of the revocation hearing.
After a bench warrant issued and he was arrested for failure to
appear at the first scheduled revocation hearing, Cohron was
specifically informed that the case would be continued for a
couple of weeks “on the hearing to revoke” to allow him to
consult with appointed counsel.
No one had as yet discovered
that no written document had been entered evidencing Cohron’s
sentence imposed on February 21, 1996.
The lack of a judgment of
sentence in the written record was first brought to the trial
judge’s attention at the revocation hearing scheduled for March
7, 1997.
More important, however, we view the revocation
procedure utilized by the trial judge to have afforded Cohron all
the due process to which he was entitled.
Like the Commonwealth,
we believe that the three convictions based upon pleas of guilty
are more than adequate support for the trial judge’s decision to
revoke Cohron’s probation and are not susceptible to mitigating
evidence or proof by witnesses.
Gagnon v. Scarpelli, 411 U.S.
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778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).
Cohron does not
contest the validity of these convictions.
Furthermore, Cohron received written notice of the
grounds for revocation as required by KRS 532.050(2), and
appeared with counsel on the scheduled date of March 7, 1997.
Similarly, we believe that the trial court’s order of February
28, 1996, is sufficient to satisfy any requirements that Cohron
be given written notice of the conditions of probation.
Based
upon these factors and our review of the video and written record
of the trial court, we are firmly convinced that Cohron received
all of the procedural due process to which he was entitled under
the statutes and case law.
Rasdon v. Commonwealth, Ky. App., 701
S.W.2d 716 (1986).
Next, Cohron argues that the trial judge violated the
requirements of KRS 532.050 in failing to obtain and review a
presentence investigation report prior to imposing sentence.
Again, we disagree.
In the video transcript of the resentencing on February
21, 1996, the trial judge noted that a presentence investigation
report was not required because Cohron had been incarcerated
since his initial sentencing.
When Judge Conliffe, on March 7,
1997, reiterated the sentence imposed on February 21 for the
purpose of placing it in the written record, he properly noted
that a PSI report had been prepared and considered in the initial
sentencing and that only an error of law brought to light by the
CR 60.02 motion necessitated the second sentencing.
We are
convinced that no violation of statute nor deprivation of due
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process occurred on these facts.
On the contrary, review of the
record satisfies this court that Judge Conliffe’s treatment of
Cohron in every way comported with principles of due process.
We
will not disturb his decision solely on the basis of a technical
error in failing to enter a written document restating the
sentence plainly imposed on the record at the time the original
sentence was set aside.
The judgment of the Jefferson Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Bruce P. Hackett
Daniel T. Goyette
Louisville, Kentucky
A. B. Chandler III
Attorney General
Vickie L. Wise
Assistant Attorney General
Frankfort, Kentucky
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