BENJAMIN GARFINKLE v. COMMONWEALTH OF KENTUCKY
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RENDERED:
AUGUST 2, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-002097-MR
BENJAMIN GARFINKLE
APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE WILLIAM J. WEHR, JUDGE
ACTION NO. 99-CR-00402
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
KNOPF, MILLER, AND TACKETT, JUDGES.
MILLER, JUDGE:
Benjamin Garfinkle brings this appeal from an
August 23, 2001 order of the Campbell Circuit Court.
We affirm.
On May 21, 1991, Garfinkle was convicted on various
felony charges.
He was paroled in November of 1996.
On December
20, 1999, Garfinkle entered a plea of guilty to a charge of
custodial interference.
Kentucky Revised Statutes (KRS) 509.070.
On February 10, 2000, he was sentenced to two and a half years'
imprisonment.
His sentence was probated for five years on
condition of no further violation of conditions and/or no new
arrests or charges.
In January 2001, Garfinkle inquired of his parole
officer, Michelle Kelley, about leaving his area of supervision
for a trip to Mexico.
Kelley agreed to provide him with the
required written permission, which Garfinkle was required to have
on his person at time of travel.
On February 7, 2001, Garfinkle submitted to a mandatory
random drug test.
Initial results indicated Garfinkle had
cocaine in his system.
The specimen was sent for a second test.
On February 9, 2001, Kelley prepared Garfinkle's
written permission to leave his area of supervision and left it
at the parole office.
Though Garfinkle failed to pick it up, he
nonetheless traveled to Mexico.
Kelley visited Garfinkle's home
on or about February 20, 2001, and verified Garfinkle had indeed
traveled without the required permission.
Sometime thereafter,
the second drug test returned, again indicating a positive result
for cocaine.
On July 27, 2001, Garfinkle was arrested for parole
violations based upon the positive lab results, and leaving his
area of supervision without written permission.
moved to revoke Garfinkle's probation.
The Commonwealth
Following a hearing,
Garfinkle's probation was revoked by order of the Campbell
Circuit Court dated August 23, 2001.
This appeal followed.
Garfinkle contends the circuit court erred in granting
the Commonwealth's motion for revocation of his probation.
Garfinkle points out that his parole officer did not follow the
Ky. Admin. Regs. (KAR) concerning his travel to Mexico.
Specifically, Garfinkle asserts that his parole officer did not
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promptly notify the circuit court of Garfinkle's travel violation
until some five months after she became aware of it.
In support
of his argument, Garfinkle cites us Kentucky Corrections Policies
and Procedures 27-15-01, which reads in pertinent part:
All arrests and violations of supervised
offenders shall be investigated immediately
and all arrests and major violations shall be
reported promptly to the releasing authority.
(Emphases added).
We note that Kentucky Corrections Policies and Procedures 27-1501 is incorporated by reference into 501 KAR 6:020E.
Garfinkle cites us to no authority concerning what
constitutes “promptly.”
Neither does he cite us to any authority
that sets out the remedy for not “promptly” reporting a
violation.
In any event, we do not believe the remedy would be
denial of the Commonwealth's motion to revoke probation.
We also
observe the KAR requires prompt reporting of any “major
violations.”
Garfinkle does not indicate to us whether his
travel without permission constitutes a “major violation.”
Upon
the whole, we think Garfinkle's trip to Mexico was a clear
violation of his probation.
We perceive no merit in Garfinkle's
claim the government failed to follow the mandates of 501 KAR
6:020.
Garfinkle also makes various arguments concerning his
mandatory drug test.
The trip to Mexico without the required
written permission of his parole officer is alone sufficient
grounds to revoke his probation; thus, we deem these assignments
of error moot.
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In sum, we are of the opinion the circuit court
properly revoked Garfinkle's probation.
For the foregoing reasons, the order of the Campbell
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
L. Craig Kendrick
Florence, Kentucky
John T. Damron
Frankfort, Kentucky
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