TOMMY PUGH v. COMMONWEALTH OF KENTUCKY
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RENDERED:
SEPTEMBER 14, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001895-MR
TOMMY PUGH
v.
APPELLANT
APPEAL FROM GRAVES CIRCUIT COURT
HONORABLE JOHN T. DAUGHADAY, JUDGE
ACTION NO. 99-CR-00110
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, GUIDUGLI AND KNOPF, JUDGES.
GUIDUGLI, JUDGE.
Tommy Pugh (Pugh) appeals an order of the
Graves Circuit Court revoking his conditional discharge status on
the grounds that he violated the terms thereof by failing to pay
child support as previously ordered.
Upon revoking his
conditional discharge status, the court imposed the five-year
sentence previously entered based upon Pugh’s guilty plea to the
criminal offense of flagrant non-support in violation of KRS
530.050.
We affirm.
In a criminal complaint sworn to by his ex-wife on
January 20, 1999, it was alleged that Pugh committed the offense
of flagrant non-support when he failed to pay court ordered child
support in the sum of $164.46 per week.
Said support was based
upon an order entered in a dissolution proceeding and for the
support of his three minor children.
of May 14, 1998.
The order was effective as
At the time of the criminal complaint, it was
further alleged that his arrearage was in excess of $1,000 and
that he had left his minor children in destitute circumstances.
Based upon a negotiated plea agreement, Pugh pled guilty to the
felony non-support charge on August 9, 1999.
On November 8,
1999, judgment and sentence was entered sentencing him to five
(5) years conditionally discharged for five (5) years with a
condition that he pay his current child support plus $25.62 per
week toward the arrearage of $6,587.90.
On May 30, 2000, the Commonwealth moved to revoke
Pugh’s “probation” alleging that Pugh had failed to comply with
the conditions of his “probation” and that his child support
arrearage had increased by an additional $3,125.56.
A hearing
was held on the motion on July 31, 2000, at which time the trial
court revoked Pugh’s conditional discharge and ordered him to
serve his five year sentence.
This appeal followed.
On appeal, Pugh contends that his due process rights were
violated when the Graves Circuit Court failed to conduct a proper
evidentiary hearing.
Specifically, he alleges he was denied the
right to present evidence, to cross-examine witnesses and to make
an opening or closing statement.
Revocation of a probated or
conditionally discharged sentence is governed by KRS 533.050
which states:
(1)
At any time before the discharge of the
defendant or the termination of the
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sentence of probation or conditional
discharge:
(a)
(b)
(2)
The court may summon the defendant
to appear before it or may issue a
warrant for his arrest upon a
finding of probable cause to
believe that he has failed to
comply with a condition of the
sentence; or
A probation officer, or peace
officer acting at the direction of
a probation officer, who sees the
defendant violate the terms of his
probation or conditional discharge
may arrest the defendant without a
warrant.
The court may not revoke or modify the
conditions of a sentence of probation or
conditional discharge except after a
hearing with defendant represented by
counsel and following a written notice
of the grounds for revocation or
modification.
The standard for a revocation hearing has been set forth in
Murphy v. Commonwealth, Ky. App., 557 S.W.2d 838 (1977), which
adopted the minimal due process requirements delineated in the
United States Supreme Court cases of Morrissey v. Brewer, 408
U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and Gagnon v.
Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).
In Murphy, supra, at 849, this Court held:
In support of his position, Murphy
relies upon Morrissey v. Brewer, 408 U.S.
471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and
Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct.
1756, 36 L.Ed.2d 656 (1973) which deal with
the minimal due process requirements
attendant upon revocation of probation. In
Morrissey, 408 U.S. 471, 489, 92 S.Ct. 2593,
2604, at 33 L.Ed.2d 484, 499 the criteria was
set forth by Chief Justice Burger speaking
for the majority. A parolee’s constitutional
rights are protected when revocation is being
considered if (1) a written notice of the
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claimed violations of parole are served, (2)
a disclosure of the evidence to be used is
made, (3) an opportunity is granted to be
heard in person, present witnesses and
documentary evidence, (4) confrontation and
cross-examination of witnesses is afforded
(unless a specific finding for good cause is
made to the contrary), (5) a neutral and
detached hearing body conducts the procedure
and (6) a written statement is made by the
fact finder(s) as to the evidence relied on
and the reasons for revoking parole.
In view of the foregoing standard, we believe Pugh was
afforded the minimal due process to which he was entitled.
He
received written notice approximately two months prior to the
revocation hearing.
appointed counsel.
He was present in court and represented by
The court received testimony that the
affidavit filed with the written motion was accurate as to the
arrearage owed and the fact that Pugh had not made any child
support payments since February 18, 2000.
Pugh’s employer was
called as a witness and denied that he had been served with a
wage assignment order or that any money had been withheld from
Pugh’s wages to pay child support.
Pugh’s only contention was
that he believed the employer was at fault for not withholding
child support from his salary.
The trial court indicated that
Pugh would have known if $190.08 was being withheld from his pay
on a weekly basis.
Additionally, no payments had been made
during the nearly two months between the filing of the motion and
the revocation hearing.
The trial court asked Pugh if he could
pay the arrearage at that time or if his employer would advance
him the necessary funds.
Pugh answered in the negative.
It was
then that the trial court ordered Pugh’s conditional discharge
revoked and remanded him to the custody of the Sheriff.
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Having
thoroughly reviewed the record and the video tape revocation
hearing, we believe Pugh received his constitutional due process
rights as set forth in Murphy.
For the foregoing reasons, the order of the Graves
Circuit Court revoking Pugh’s conditional discharge is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kim Brooks
Covington, KY
A. B. Chandler, III
Attorney General
George G. Seelig
Assistant Attorney General
Frankfort, KY
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