DANNY GILMORE v. COMMONWEALTH OF KENTUCKY
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RENDERED: MARCH 10, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001292-MR
DANNY GILMORE
APPELLANT
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE WILLIAM T. CAIN, JUDGE
INDICTMENT NO. 97-CR-00051
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, GUIDUGLI, AND MILLER, JUDGES.
DYCHE, JUDGE:
Danny Gilmore appeals from an order of the Pulaski
Circuit Court revoking his probation and imposing a two-year
sentence of imprisonment for his conviction of possession of a
controlled substance, first degree.
He argues that the
conditions the court determined that he violated were not
actually conditions of his probation and asks us to reverse the
order of the trial court.
We decline to do so and affirm.
Gilmore was indicted on April 23, 1997, for trafficking
in a controlled substance, first degree.
He later entered a
guilty plea to the amended charge and appeared on December 22,
1997, for sentencing.
He was sentenced to two years'
imprisonment, but that sentence was suspended and he was placed
on supervised probation for a period of five years.
As
conditions of his probation, Gilmore was to, among other things,
refrain from the use of any alcohol or drugs unless prescribed by
a doctor; comply with rules of the probation and parole office;
refrain from further violations of the law; and avoid persons or
places of disreputable or harmful character.
On January 28, 1999, Gilmore's probation officer filed
an affidavit to modify probation with the court.
According to
the affidavit, Gilmore had a positive drug test for marijuana on
January 26, 1999, admitted to the officer that he had been using
crack cocaine daily for several months, and had been arrested on
January 24, 1999, and charged with assault in the fourth degree,
terroristic threatening, and disorderly conduct.
The affidavit
requested that the court modify Gilmore's probation to include
completion of an in-patient drug treatment program.
The
Commonwealth filed a motion to revoke Gilmore's probation, citing
the same incidents included in the probation officer's report and
also requesting the suggested modification.
The trial court denied the motion to revoke Gilmore's
probation on March 16, 1999.
Although there is no record of a
hearing on that date, the parties acknowledge that there was an
informal "hearing" at which the court reached an agreement with
Gilmore that he would complete the in-patient substance abuse
program.
-2-
On May 6, 1999, Gilmore's probation officer filed a
second affidavit, this time requesting that Gilmore's probation
be revoked.
The affidavit stated that Gilmore failed to complete
the program; that he had been charged with three counts of
complicity to commit wanton endangerment in the first degree;
that he had a firearm in his possession on April 19, 1999; and
that he had failed to report his arrest to the probation officer
within three days.
The Commonwealth filed a second motion to
revoke Gilmore's probation which was granted, and which is the
subject of this appeal.
Gilmore admitted that he was in an automobile with several
individuals on April 19 and that one of those individuals fired
shots into a passing automobile, but he denied having possession
of a firearm.
In defense of his failure to complete the
substance abuse program, he claimed that he did not think he was
required to attend the full thirty days of the program.
trial court stated the following at the conclusion of the
The
revocation hearing:
On March 16th of this year I entered an order
dismissing all warrants for his arrest for
probation violation in response to the
Commonwealth's motion to revoke probation on
March [sic] 17th. Mr. Gilmore admitted to
the officer that he had used daily crack
cocaine over the two months before that. An
agreement was reached with Mr. Gilmore in
open court in which he was to go and complete
the substance abuse program at Crossroads. .
. . He does not complete it, does not notify
Mr. Burton. . . . If this were the first
time, that would be one thing, but this is
the second time. . . . He has violated the
conditions of his probation and accordingly,
I am going to revoke him.
-3-
Appellate review of an order revoking probation "is
limited to a determination of whether, after a hearing, the trial
court abused its discretion in revoking the appellant's parole."
Tiryung v. Commonwealth, Ky. App., 717 S.W.2d 503, 504 (1986).
Gilmore acknowledged in the revocation hearing that he knew as a
result of his first court appearance for probation revocation
that he was required to complete the program.
He stated that
those who completed the program received a certificate, and
admitted that he did not get a certificate.
The trial judge
heard this testimony and determined that revocation was
appropriate.
Aside from the matter of the substance abuse program,
the trial court had ample grounds to revoke Gilmore's probation
on either occasion for other reasons.
In the four months
following his plea of guilty on this charge, he was arrested on
two separate occasions.
The Commonwealth does not need to obtain
a conviction in order to accomplish revocation of probation.
Myers v. Commonwealth, Ky. App., 836 S.W.2d 431 (1992); Tiryung,
supra.
The trial court exhibited great restraint in its initial
decision not to revoke Gilmore.
It was not an abuse of that same
discretion for the court to revoke Gilmore's probation at the
second hearing, for as the court found, "[h]e has violated the
conditions of his probation."
The judgment of the Pulaski Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Irvin J. Halbleib
Louisville, Kentucky
A. B. Chandler III
Attorney General of Kentucky
Courtney A. Jones
Assistant Attorney General
Frankfort, Kentucky
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