CHRISTOPHER CHENAULT v. COMMONWEALTH OF KENTUCKY
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RENDERED:
OCTOBER 12, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001927-MR
CHRISTOPHER CHENAULT
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE LAURENCE B. VANMETER, JUDGE
ACTION NO. 99-CR-00739
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, MILLER, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Appellant, Christopher Chenault, appeals from
his one-year sentence for second-degree forgery.
As Chenault was
not entitled to custody credit for time spent at a halfway house
as a condition of his probation, we affirm.
On July 13, 1999, Chenault was indicted on two counts
of second-degree forgery and one count of giving an officer a
false name.
Chenault pled guilty to one count of second-degree
forgery, with the Commonwealth recommending a one-year sentence
and dismissal of the remaining two counts.
On October 20, 1999,
the court sentenced Chenault to one year's imprisonment, but
probated the sentence for five years subject to conditions
including that Chenault serve 30 days with credit in the Fayette
County Detention Center, be on intensive supervision, and submit
to random drug tests.
On November 12, 1999, Probation and Parole Officer
Larry MacQuown filed an affidavit to modify probation on grounds
that Chenault had violated his curfew.
Following a revocation
hearing, on November 24, 1999 the court entered an order that
Chenault continue on probation, subject to the condition that he
serve nine days with credit in the Fayette County Detention
Center.
The court further ordered that all of the existing terms
and conditions of Chenault's probation would remain in force.
January 6, 2000,
On
MacQuown filed another affidavit to modify
probation, on grounds of a curfew violation and failure to
cooperate with the probation officer.
A revocation hearing was
held on January 7, 2000, and, on January 11, 2000, the court
entered an order modifying Chenault's probation.
The court
ordered that Chenault continue on probation subject to the
condition that he enroll in and complete the program at St.
Andrews Halfway House, and that all of the existing terms and
conditions of his probation would remain in force.
On March 8, 2000, MacQuown filed an affidavit to revoke
probation, citing probation violations by Chenault of failure to
cooperate with the probation officer, testing positive for
marijuana, and failure to abide by the rules of St. Andrews
House, for leaving St. Andrews on March 7, 2000 and failing to
return as required.
July 21, 2000.
A probation revocation hearing was held on
At the revocation hearing, Chenault contended
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that he was entitled to custody credit for the time he spent at
St. Andrews House.
On July 25, 2000, the court entered an
opinion and order finding that Chenault was not entitled to
custody credit for the 59 days he spent at St. Andrews.
Also on
July 25, 2000, the court entered its final judgment and sentence
revoking Chenault's probation, and finding Chenault entitled to
48 days custody credit for time spent at the Fayette County
Detention Center.
This appeal followed.
On appeal, Chenault contends that the trial court erred
by denying custody credit for the 59 days he spent at St.
Andrews.
KRS 520.010(2) defines custody as "restraint by a
public servant pursuant to a lawful arrest, detention, or an
order of court for law enforcement purposes, but does not include
supervision of probation or parole or constraint incidental to
release on bail[.]"
Although not directly on point, this Court
has discussed what constitutes "custody" within the meaning of
KRS 520.010(2).
In Prewitt v. Wilkinson, Ky. App., 843 S.W.2d
335 (1992), the appellant argued that he should receive credit
for time served while released on appeal bond.
He argued that
although he was not imprisoned, the appeal bond imposed
conditions that were confining and restrictive to his liberty and
freedom, and that these restrictions amounted to continuing in
custody.
Prewitt, 843 S.W.2d at 336.
We concluded that the
restrictions imposed upon the appellant did not constitute
custody per KRS 520.010(2).
In Bartrug v. Commonwealth, Ky.
App., 582 S.W.2d 61 (1979), we held that the appellant's stay at
a hospital prior to his arrest, where the hospital had agreed to
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notify police when the appellant could be released, did not
constitute custody within the meaning of KRS 520.010(2).
We
noted that the appellant was not confined by court order, that he
could have left the hospital at any time, and had he done so, the
Commonwealth could not have charged him with an escape offense
under KRS Chapter 520.
Further, in Cooper v. Commonwealth, Ky.
App., 902 S.W.2d 833 (1995), we held that Court-ordered yard
restriction in one's home while released on bail was not custody
per KRS 520.010(2).
The record contains no information regarding the
restrictions placed upon Chenault at St. Andrews, other than what
appears from the March 8, 2000 affidavit and July 21, 2000
revocation hearing to be a requirement that residents sign out
when they leave, and return by a specified time.
At the
revocation hearing, Chenault testified that he was working two
jobs while he was at St. Andrews.
Additionally, Chenault was not
charged with escape for leaving and not returning to St. Andrews.
Cooper, 902 S.W.2d at 835; Bartrug, 582 S.W.2d at 63.
Further,
the requirement that Chenault participate in the St. Andrews
House program was imposed as an additional condition of probation
as a consequence of his probation violations.
KRS 533.020(1)
allows the trial court to impose conditions on probation, and to
modify or enlarge the conditions.
The trial court's July 25,
2000 order states that the condition that Chenault go to St.
Andrews was imposed incidental to continued supervision of
probation.
Further, the March 8, 2000 affidavit of Officer
MacQuown indicates that the St. Andrews program was a "condition
-4-
of intensive supervision" of Chenault's probation.
KRS
520.010(2) provides that custody "does not include supervision of
probation or parole . . ."
For the aforementioned reasons, we
cannot say that the time Chenault spent at St. Andrews
constituted "custody" within the meaning of KRS 520.120(2).
The judgment of the Fayette Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gene Lewter
Lexington, Kentucky
A. B. Chandler, III
Attorney General
Samuel J. Floyd, Jr.
Assistant Attorney General
Frankfort, Kentucky
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