RONALD C. BLAKEMORE v. COMMONWEALTH OF KENTUCKY
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RENDERED: AUGUST 18, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000708-MR
RONALD C. BLAKEMORE
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN P. RYAN, JUDGE
ACTION NO. 93-CR-01571
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, HUDDLESTON, and SCHRODER, Judges.
COMBS, JUDGE:
Appellant Ronald C. Blakemore (Blakemore) appeals
from a July 1, 1998, order of the Jefferson Circuit Court
revoking his probation.
After carefully reviewing the record, we
affirm.
On July 20, 1995, Blakemore was convicted on three
counts of Trafficking in a Controlled Substance in the First
Degree and was sentenced to seven-years' imprisonment.
However,
the trial court withheld imposition of this sentence and placed
Blakemore on five-years' probation.
On April 12, 1996, the Commonwealth moved to revoke
Blakemore’s probation. He had been arrested and charged with
Possession of a Handgun by a Convicted Felon and failed to report
this arrest within seventy-two (72) hours.
On September 30,
1996, the Commonwealth supplemented its motion to revoke with
additional violations, including: (1) a positive testing for
cocaine on August 30, 1996; (2) leaving Jefferson County without
permission; and (3) twice failing to report to his probation
officer.
The Commonwealth filed additional supplements to its
motion to revoke on May 19, 1997, and August 15, 1997--each time
citing additional positive drug tests.
On October 3, 1997, a
probation report was entered into the record showing that
Blakemore had tested positive for cocaine on four more occasions
and that he had been convicted on a misdemeanor charge of
Loitering for Purposes of Gambling.
On October 9, 1997, a hearing was held in Jefferson
Circuit Court on the Commonwealth’s motion to revoke Blakemore’s
probation.
At that hearing, Blakemore stipulated that he had
violated his probation by testing positive for cocaine on eight
(8) separate occasions, by being convicted of loitering, and by
failing to complete payment for drug classes.
The circuit court
ruled that Blakemore had violated the terms and conditions of his
probation and indicated that while it would sign an order
revoking his probation, it would not enter the revocation order
but would instead transfer Blakemore to Jefferson County Drug
Court under the supervision of Judge Henry Weber.
Judge Weber
would have the authority to enter the order at any time for any
reason, including a failure to comply with any programs
recommended by drug court personnel.
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Blakemore’s attorney said
that he understood and made no objections.
The circuit court’s
written order stated that Blakemore would remain on probation and
be placed in Judge Weber’s drug court.
It was added that the
drug court could revoke his probation at any time it deemed
appropriate.
On March 25, 1998, an order was entered in the drug
court stating that Blakemore had failed to appear.
A bench
warrant was issued for his arrest, and he was sentenced to serve
ten (10) days.
On April 30, 1998, another order was entered in
the drug court stating that Blakemore had again failed to appear.
Another warrant was issued, and he was again given ten (10) days
to serve.
The second warrant mentioned “probaton (sic)
revocation.”
On June 4, 1998, Blakemore was brought before the
circuit court and was sentenced to serve ten (10) days once
again.
Additionally, he was transferred back to drug court and
was told that Judge Weber would decide if he should remain there
or not.
The court added that in the event that Judge Weber
decided to expel him from drug court, Blakemore would be
transferred back to circuit court for another hearing and that he
would then need his attorney.
On June 30, 1998, the drug court entered an order
stating that Blakemore had failed to meet its requirements and
transferring him back to the Jefferson Circuit Court for further
proceedings.
On July 1, 1998, Blakemore and his attorney
appeared in court for a probation revocation hearing.
Blakemore
admitted that he was discharged from drug court because of the
numerous occasions on which he had failed to appear and
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acknowledged that the court was within its rights to revoke his
probation at any time.
The court subsequently entered a judgment
to revoke Blakemore’s probation, and he was sentenced to sevenyears’ imprisonment.
This appeal followed.
Blakemore’s primary contention on appeal is that he was
provided insufficient notice of the conditions of his probation
and his alleged probation violations.
We do not agree.
The case
of Messer v. Commonwealth, Ky. App., 754 S.W.2d 872 (1988), is
dispositive of the issues presented here.
In Messer, this Court
stated:
(T)he purpose of service upon the party is to
make that person aware of the proceedings
instituted or about to be initiated against
him or her. It seems clear that the purpose
for the rule disappears or has been satisfied
when the party appears with knowledge of the
proceedings and participates or is given an
opportunity to participate, does not even
give the trial court the opportunity to
correct any defect in the notice and only
complains after his probation has been
revoked and the case is on appeal.
Messer, supra at 874.
Blakemore appeared with his attorney at the hearings of
both October 9, 1997, and July 1, 1998; he gave every indication
that he fully understood the proceedings.
At the first hearing,
he stipulated that he had violated his probation by testing
positive on eight (8) separate occasions for cocaine and by being
convicted of a misdemeanor.
At the second hearing he admitted
that he had been transferred from drug court because he had twice
failed to appear and agreed that the circuit court was within its
rights to revoke his probation.
Blakemore cannot argue now that
he did not understand the terms of his probation or why it was
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being revoked.
Such a contention directly contravenes the
representations he made during his revocation hearings.
"(T)hese
grounds, being different from those asserted in the court below,
are not properly preserved for appellate review."
Shelton v.
Commonwealth, Ky. App., 992 S.W.2d 849, 852 (1998), citing
Daugherty v. Commonwealth, Ky., 572 S.W.2d 861, 863 (1978).
Additionally, at no time before this appeal did
Blakemore make any objections on the basis of improper notice or
a lack of awareness of the grounds for revocation.
CR 12.08(1)--
made applicable by RCr 13.04--states:
A defense of lack of jurisdiction over the
person, improper venue, insufficiency of
process, or insufficiency of service of
process is waived (a) if omitted from a
motion in the circumstances described in Rule
12.07, or (b) if it is neither made by motion
under Rule 12 nor included in a responsive
pleading or an amendment thereof permitted by
Rule 15.01 to be made as a matter of course.
(Emphasis added)
If Blakemore had had any legitimate concerns about notice, the
trial court should have been notified and given the opportunity
to deal with them accordingly.
"An appellate court will not
consider a theory unless it has been raised before the trial
court and that court has been given an opportunity to consider
the merits of the theory."
Shelton, supra at 852.
We affirm the order of the Jefferson Circuit Court.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Tera M. Rehmel
Louisville, KY
Albert B. Chandler III
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, KY
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