JAMES W. CRUTCHLEO v. COMMONWEALTH OF KENTUCKY
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RENDERED: December 29, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001847-MR
JAMES W. CRUTCHLEO
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE DOUGLAS M. STEPHENS, JUDGE
ACTION NO. 95-CR-00126
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, KNOPF, AND TACKETT, JUDGES.
KNOPF, JUDGE:
James W. Crutchleo appeals from an order of the
Kenton Circuit Court revoking his probation.
After reviewing the
record, we affirm.
On January 18, 1994, pursuant to a search warrant,
Covington police officers seized, inter alia, several bags of
marijuana, $215.00 cash, two handguns, some pills, and various
other items of drug paraphernalia from Crutchleo’s apartment.
On
March 10, 1995, the Kenton County Grand Jury indicted Crutchleo
on one felony count of trafficking in marijuana within 1000 yards
of a school while in possession of a firearm (KRS 218A.1411, KRS
218A.1421, and KRS 218A.992)(Count I), one felony count of
second-degree possession of a controlled substance
(hydromorphone) while in possession of a firearm (KRS 218A.1416
and KRS 218A.992)(Count II), and one felony count of third-degree
possession of a controlled substance (phentermine) while in
possession of a firearm (KRS 218A.1417 and KRS 218A.992)(Count
III).
On May 10, 1995, Crutchleo pled guilty to the amended
charge of trafficking in marijuana within 1000 yards of a school
pursuant to a plea agreement with the Commonwealth.
Under the
agreement, the Commonwealth moved to dismiss Counts 2 and 3 of
the indictment and recommended a sentence of five years to be
probated for five years on the trafficking count.
On July 24,
1995, the circuit court sentenced Crutchleo consistent with the
Commonwealth’s recommendation to five years for trafficking in
marijuana within 1000 yards of a school, but further sentenced
him to probation for a period of five years in lieu of immediate
imprisonment.
He was placed on active supervision and ordered to
comply with the terms and conditions of probation outlined in KRS
533.030 and imposed by the Division of Probation and Parole.
The
court also specifically imposed as a condition of probation that
he not commit any criminal act.
On November 12, 1997, Crutchleo’s probation officer
submitted an affidavit requesting that an arrest warrant be
issued because of Crutchleo’s violation of the conditions of
probation.
More specifically, the officer stated that Crutchleo
had been convicted on November 5, 1997, in federal district
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court, for possession of a firearm committed on August 5, 1995,
and for possession of a sawed-off shotgun committed on August 7,
1995.
The circuit court issued the warrant and Crutchleo was
arrested the next day.
On November 17, 1997, Crutchleo was
brought before the circuit court on the charge of violating his
probation and he was advised by the judge that he had the right
to an attorney to represent him at a hearing at which he could
cross-examine witnesses for the Commonwealth and present
witnesses on his own behalf.
On November 24, 1997, an attorney
was appointed to represent Crutchleo.
On December 18, 1997, the circuit court held a
conference on the probation revocation charges at which Crutchleo
appeared with his counsel.
At that time, Crutchleo’s attorney
stated that appellant was willing to stipulate to the contents of
the probation officer’s affidavit and did not intend to contest
the existence of his federal convictions, but that he wanted to
request that his state sentence run concurrently.
His attorney
agreed that the only real issue was whether the five-year
sentence could run concurrently with his federal sentence.
Because there was some uncertainty whether the law allowed the
trial court to order the state sentence to run concurrently with
the federal sentence, the court delayed holding an evidentiary
hearing until December 15, 1997.
On December 15, 1997, Crutchleo was present with his
attorney for a probation revocation hearing.
Crutchleo’s
attorney stipulated to the violation of his probation because of
the existence of the federal convictions.
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Defense counsel then
argued that Crutchleo would be serving between 48-57 months on
his federal sentence and asked the court to allow him to serve
his federal sentence first rather than require him immediately to
begin serving his state sentence upon revocation.
After the
Commonwealth responded, defense counsel stated she had no further
evidence when questioned by the trial judge.
The court then
stated that based on the stipulations it would hold that
Crutchleo had violated the conditions of probation by committing
another crime while on probation.
Given the similarity in the
original state charges and the federal convictions, both
involving firearms, the court decided to revoke Crutchleo’s
probation immediately, which the court stated rendered any state
court ruling on whether the sentence would run concurrently or
consecutively with the federal sentence moot.
On December 18,
1997, the court entered a written order finding that Crutchleo
had violated the conditions of his probation by receiving a new
conviction in federal court.
Although not appearing in the circuit court record, at
some time in May 1999, Crutchleo submitted a motion for
concurrent sentencing.
On May 26, 1999, the Commonwealth filed a
response in opposition to the motion maintaining that under KRS
533.060(2) and KRS 532.115, Crutchleo was not eligible for
concurrent sentencing.
The trial court summarily denied the
motion for concurrent sentencing.
On August 12, 1999, Crutchleo filed a notice with this
Court appealing the circuit court’s November 1997 order revoking
his probation that was deemed deficient but was treated as a
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motion for belated appeal.
This Court issued an order returning
the case to the circuit court for an evidentiary hearing on
whether Crutchleo had waived his right to appeal the November
1997 order.
On November 15, 1999, the trial court conducted a
hearing on Crutchleo’s proffered reasons for the belated appeal.
Based on the testimony of Crutchleo and his former attorney, and
the record of the prior proceedings, the court found that
Crutchleo had not been advised by that court or his attorney of
his right to appeal the probation revocation order.
On December
20, 1999, this Court granted Crutchleo’s motion for belated
appeal.
Crutchleo argues on appeal that his right to procedural
due process was violated during the probation revocation hearing.
More specifically, he asserts that he was not allowed to testify
at the hearing and was not advised that he could present
mitigating evidence to support an argument that any violation of
the probation conditions did not warrant revocation.
See, e.g.,
United States v. Dodson, 25 F.3d 385 (6th Cir. 1994).
In fact,
Crutchleo alleges that he was prohibited from testifying on his
own behalf.
A review of the record clearly refutes Crutchleo’s
allegations.
Although the procedural protections are more
limited than with a criminal prosecution, the minimum due process
procedures required for probation revocation include: (1) written
notice of the claimed violations; (2) disclosure of the evidence
against the probationer; (3) an opportunity to be heard in person
and present witnesses and documentary evidence; (4) a right to
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confront and cross-examine witnesses absent good cause to the
contrary; (5) a neutral and detached decision maker; and (6) a
written statement by the fact finder of the evidence relied upon
and the reasons for revoking probation.
See Gagnon v. Scarpelli,
411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973);
Baumgardner v. Commonwealth, Ky. App., 687 S.W.2d 560 (1985);
KRS 533.050(2).
When Crutchleo first appeared before the trial court on
the probation revocation warrant, the judge specifically advised
him that he had the right to present witnesses on his behalf at a
hearing.
He was present in the courtroom with his attorney at
the November 24, 1997, conference, and the December 18, 1997,
revocation hearing.
On both occasions, defense counsel stated
that Crutchleo did not challenge the existence of the federal
convictions.
She also stated at the hearing that the federal
conviction for possession of a sawed-off shotgun involved his
mere possession as a participant in the sale of the firearm,
rather than possession for possible personal use.
Crutchleo had
an opportunity to testify at the hearing had he wanted to do so,
and there is no indication that he was prevented from testifying
personally or presenting witnesses or evidence in mitigation.
The probation revocation hearing satisfied the pertinent
procedural requirements.
Crutchleo has not shown that he was
deprived of any constitutional due process rights.1
1
We note that Crutchleo also has not presented any
evidence or testimony that he would have introduced at the
hearing that would have affected the trial court’s decision.
Thus, he has not shown how he was harmed by being deprived of a
(continued...)
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For the foregoing reasons, we affirm the order of the
Kenton Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
James W. Crutchleo, Pro Se
Lexington, Kentucky
Albert B. Chandler III
Attorney General
Elizabeth A. Heilman
Assistant Attorney General
Frankfort, Kentucky
1
(...continued)
procedural due process right.
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