LOCKHART RANKIN, JR. v. COMMONWEALTH OF KENTUCKY
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RENDERED: January 8, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1997-CA-002574-MR
LOCKHART RANKIN, JR.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS J. KNOPF, JUDGE
CIVIL ACTION NO. 94-CR-0753
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** **
BEFORE: HUDDLESTON, KNOX and MILLER, Judges.
HUDDLESTON, Judge.
Lockhart Rankin appeals from an order revoking
his probation and reinstating the five-year sentence that had been
imposed after he pled guilty in 1994 to Possession of a Controlled
Substance (marijuana).
Rankin
was
Controlled Substance.
initially
charged
with
Trafficking
in
a
With the assistance of his attorney, he
entered into a plea agreement pursuant to which he pled guilty to
the lesser offense of possession of marijuana.
sentence
on
that
charge
was
suspended
and
he
His five-year
was
placed
on
probation on condition that, among other things, he not commit
another offense, receive drug counseling and submit to random drug
testing.
On
November
21,
1995,
Probation
and
Parole
Officer
Rochelle Douglas filed a Special Supervision Report, informing the
circuit court that Rankin had been arrested on November 13, 1995,
and
charged
with
Trafficking
in
a
Controlled
Substance.
On
December 11, 1995, a bench warrant was issued for Rankin's arrest
for violating the terms of his probation.
Officer Douglas filed a
second report with the court on January 19, 1996, requesting a
revocation hearing as a result of Rankin's failure to report as
instructed and failure to keep his appointment for substance abuse
assessment. The Commonwealth moved to revoke Rankin's probation on
January 30, 1996.
Officer Douglas filed yet a third report with
the court on March 17, 1997, noting Rankin's failure to report a
change of address, his absconding from probation supervision and
his failure to report his arrest of February 2, 1997, for probation
violation.
The Commonwealth amended its probation revocation
motion to add the grounds specified in Officer Douglas's third
report.
Rankin's revocation hearing was initially scheduled for
September
19,
1997.
However,
on
September
18,
1997,
Rankin
appeared in court with counsel for the revocation hearing.
Rankin
now claims he was not personally served with notice of the change
in date of his revocation hearing.
Rankin is correct in asserting
that personal notice to him of the revocation hearing is a due
process requirement.
Keith v. Commonwealth, Ky. App., 689 S.W.2d
613 (1977), and Ky. Rev. Stat. (KRS) 533.050. However, the defense
of insufficiency of service is waived if it is not brought to the
circuit court's attention by motion or pleading. Ky. R. Civ. Proc.
(CR) 12.08(1); Messer v. Commonwealth, Ky. App., 754 S.W.2d 872
(1988).
A review of the videotape of the revocation hearing
-2-
reveals that Rankin neither said nor did anything to alert the
court to any irregularity in the proceeding.
Rankin further contends that since he was not served with
personal notice that his hearing had been moved up one day, he was
prejudiced by not being able to summon Officer Douglas as a witness
to testify on his behalf.
Rankin does not indicate to what Officer
Douglas may have testified and in what manner such testimony may
have advanced his cause. Considering that Officer Douglas had been
responsible
for
filing
with
the
circuit
court
three
Special
Supervision Reports concerning Rankin's violation of his terms of
probation, it is difficult to envision Officer Douglas commending
Rankin for his incorrigible behavior.
In any event, if Rankin
wanted a continuance because of the absence of a material witness,
he was required to proceed in accordance with Ky. R. Crim. Proc.
(RCr) 9.04.
Finally, Rankin contends that he received ineffective
assistance of counsel during his revocation hearing.
It has been
consistently held that the issue of ineffective assistance of
counsel must first be raised at the trial level by means of a posttrial motion for it to be considered on appeal.
Wilson v.
Commonwealth, Ky., 601 S.W.2d 280, 284. Since Rankin has not filed
such a motion, the issue is not ripe for appellate review.
Finally, Rankin asserts that prior to his revocation
hearing, he had attempted to replace counsel of record1 with new
counsel.
Rankin states that he was interested in engaging new
1
This was the same counsel who had represented Rankin in the
proceedings during 1994 when he pled guilty to Possession of a
Controlled Substance and received a probated sentence.
-3-
counsel after his attorney stated that he felt Rankin would not
prevail at the upcoming revocation hearing.
Rankin claims he
released counsel on September 5, 1997, and discussed the revocation
hearing with another attorney who agreed to represent him once his
fee was paid.
claims
he
had
Subsequently, Rankin and his attorney, who Rankin
released,
appeared
at
the
September
18,
1997,
revocation hearing. At the hearing, Rankin made no effort to alert
the trial court to his desire to discharge his attorney and retain
other counsel.
Furthermore, Rankin provides no affidavit or other
evidence to support of this ground for relief.
This Court will not
consider matters stated in briefs unsupported by the record.
Ford
v. Commonwealth, Ky., 472 S.W.2d 261 (1971).
For the foregoing reasons, the order revoking Rankin's
probation is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Mr. Lockhart Rankin, Pro se
Beattyville, Kentucky
A. B. Chandler III
Attorney General of Kentucky
Dana M. Todd
Assistant Attorney General
Frankfort, Kentucky
-4-
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