DELLITHI THOMAS v. COMMONWEALTH OF KENTUCKY
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RENDERED:
OCTOBER 17, 2003; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-002369-MR
DELLITHI THOMAS
APPELLANT
APPEAL FROM McCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 99-CR-00260
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, GUIDUGLI AND McANULTY, JUDGES.
GUIDUGLI, JUDGE.
Dellithi Thomas (hereinafter “Thomas”) has
appealed from the McCracken Circuit Court’s October 16, 2002,
order revoking her probation and ordering her to serve the
remainder of her five year sentence for a criminal abuse
conviction.
We affirm.
On November 22, 1999, Thomas and her husband, Flaminto
Thomas (hereinafter “Flaminto”), were indicted by the McCracken
County Grand Jury on a charge of Second Degree Criminal Abuse1
for injuries sustained by their two-year old child when he
ingested Valium and cocaine.
Thomas was also indicted on a PFO
II charge for a November 22, 1996, felony conviction.2
The two
co-defendants went to trial and were both convicted on the
criminal abuse charge.
Thomas was not convicted on the PFO II
charge, although Flaminto was convicted on his PFO I charge.
The jury recommended a five-year sentence for Thomas and a
seventeen-year sentence of Flaminto.3
On July 24, 2000, the
trial court entered its final judgment as to Thomas, and imposed
the recommended five-year sentence, despite her request for
probation, as it found that imprisonment was necessary.
Thomas
did not take a direct appeal from the final judgment.
On October 24, 2000, Thomas filed a motion to suspend
the further execution of her sentence and for probation pursuant
to KRS 439.265.
On November 21, 2000, the trial court granted
shock probation, and on November 22, 2000, entered an amended
order granting Thomas’s motion for probation.
The trial court
placed Thomas on probation for five years subject to the usual
requirements of Probation and Parole, including that she abide
by all rules and regulations that might be imposed upon her, and
1
KRS 532.080.
A superseding indictment added a PFO I charge to Flaminto.
3
Flaminto’s conviction is currently on discretionary review before the
Supreme Court of Kentucky in Thomas v. Commonwealth, case No. 2002-CA-000021DG.
2
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warned her that any violation would most likely result in the
revocation of her probation.
On August 8, 2002, the Commonwealth filed a motion for
a warrant and for a show cause hearing, and requested that
Thomas’s probation be revoked, attaching an affidavit from
Probation and Parole Officer Barry Dean (hereinafter “Dean”)
indicating that Thomas had violated several conditions of her
probation.
These conditions provided that she not use alcohol
or drugs unless prescribed by a physician, that she not violate
any law or ordinance, and that she maintain steady employment.
Pursuant to Dean’s affidavit, Thomas had used both marijuana and
cocaine based upon positive test results from urine samples
taken on May 28 and July 24, 2002.
She was also arrested on
July 24, 2002, and charged with DUI, reckless driving, and
driving without a license or registration.
Thomas admitted at
that time that she had been drinking alcohol and had used
cocaine and marijuana prior to her arrest.
After the trial
court entered the order issuing a warrant and notifying Thomas
of a show cause hearing, the Commonwealth filed an amended
affidavit from Dean, which included additional violations.
These included her failure on two occasions to abide by the
curfew imposed by Dean on July 29, 2002, her arrest for
trafficking on September 12, 2002, after purchasing one pound of
marijuana in a Wal-Mart parking lot, and for driving on a DUI-
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suspended license.
Additionally, a September 13, 2002, urine
sample tested positive for marijuana and cocaine.
Dean also
indicated that Thomas has not maintained any employment from
November 22, 2000, when she was placed on probation, until she
began work through a temporary agency on August 5, 2002.
She
was terminated for poor attendance on September 12, 2002.
The trial court held a revocation hearing on October
10, 2002, at the beginning of which Thomas stipulated to the
results of the urine tests, that she was out during her curfew,
and that one of the conditions of her probation was that she
refrain from the use of drugs.
Dean testified as to the
contents of his affidavit, Paducah Police Detective Mike Miller
testified as to the circumstances of Thomas’s purchase of one
pound of marijuana, and Paducah Police Officer Sam Adams
testified as to the July 24, 2002, DUI arrest and as to the
traffic stop during which Thomas was charged with driving on a
DUI-suspended license.
Thomas testified in her own behalf, and
blamed her relapse on an incident during which another
individual put a gun to her head and threatened her and her
children.
She indicated that she wanted long-term treatment for
her admitted substance abuse problem.
At the conclusion of the hearing, the trial court
found that Thomas had used marijuana and cocaine on more than
one occasion, had violated her curfew, and had driven on a DUI-
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suspended license.
Additionally, the trial court found probable
cause that she had participated in the purchase of one pound of
marijuana and that she had had previous opportunities to get
treatment.
Therefore, the trial court revoked Thomas’s
probation.
On October 16, 2002, the trial court entered its
Findings of Fact, Conclusions of Law and Order Revoking
Probation memorializing its bench ruling.
In the written order,
the trial court found that Thomas received a probated sentence
on November 22, 2000, that conditions of her probation included
that she refrain from using alcohol or drugs not prescribed by a
physician, and that she stipulated to the use of marijuana,
cocaine, and alcohol while on probation.
The trial court
concluded that she had violated the conditions of her probation
and revoked her probation.4
This appeal followed.
On appeal, Thomas argues, under the palpable error
rule of RCr 10.26, that she was denied due process in that the
trial court failed to consider or find that the facts admitted
to warranted incarceration rather than a reinstatement of her
probation.
Thomas relies primarily on the United States Supreme
Court opinions of Gagnon v. Scarpelli, 711 U.S. 778, 93 S.Ct.
4
Although not pertinent to this appeal, we note that on October 22, 2002,
Thomas entered guilty pleas to her July 24, 2002, DUI charge (02-T-03771) and
to her September 12, 2002, driving on a DUI-suspended license charge (02-T04658) and that she received two consecutive thirty-day sentences for these
convictions. We also note that on May 5, 2003, Thomas entered a guilty plea
to trafficking in marijuana and received a five-year sentence that was
enhanced to an eight-year sentence pursuant to her amended PFO II conviction
(02-CR-00352-001). The eight-year sentence is to run consecutive to any
other indictment.
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1756, 36 L.Ed.2d 656 (1973), and Morrissey v. Brewer, 408 U.S.
471, 92 S.Ct. 2593, 33 L.Ed.2d 474 (1972), to support her
contention.
The Commonwealth, on the other hand, argues that
Thomas has not shown that a manifest injustice occurred or that
the outcome would have been any different.
The Commonwealth
asserts that Thomas’s due process rights were not violated as
she was afforded written notice of the grounds for revocation
and was represented by counsel at a full revocation hearing.
We
agree with the Commonwealth that Thomas’s due process rights
were not violated and that she has failed to show that any
manifest injustice occurred.
Thomas concedes that the issue she raises on appeal
was not preserved below, so that we must review her claim of
error under the palpable error rule.
CR 10.26 provides:
A palpable error which affects the
substantial rights of a party may be
considered by the court on motion for a new
trial or by an appellate court on appeal,
even though insufficiently raised or
preserved for review, and appropriate relief
may be granted upon a determination that
manifest injustice has resulted from the
error.
With this standard in mind, we shall address the merits of the
appeal.
In 1974, the General Assembly enacted KRS 533.050,
which provides for the arrest of a defendant who is on probation
or conditional discharge, and reads as follows:
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(1)
At any time before the discharge of the
defendant or the termination of the
sentence of probation or conditional
discharge:
(a)
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 his
sentence; or
* * *
(2)
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 previous year, the United States Supreme Court had issued
the opinion of Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756,
36 L.Ed.2d 656 (1973), in which it held that a defendant must be
provided with the minimum requirements of due process prior to
the revocation of his probation.
In Murphy v. Commonwealth,
Ky.App., 551 S.W.2d 838 (1977), this Court relied upon Morrissey
v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972),
and Gagnon, supra, which dealt with the due process requirements
necessary to revoke probation.
In Morrissey, 408 U.S. 471, 489, 92 S.Ct.
2593, 2604, at 33 L.Ed. 2d 484, 499 [,] the
criteria [were] set forth by Chief Justice
Burger speaking for the majority. A
parolee’s constitutional rights are
protected when revocation is being
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considered if (1) a written notice of the
claimed violations of parole [is] 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 (finders) as to the evidence relied on
and the reasons for revoking parole. We see
no distinction between probation and parole
because Gagnon deals with the former while
Morrissey the latter. Since the appellant
was tried by the circuit court, we do not
believe that the Morrissey decision requires
a preliminary hearing as well as a
revocation hearing.
Murphy v. Commonwealth, 551 S.W.2d at 840.
See also Baumgardner
v. Commonwealth, Ky.App., 687 S.W.2d 560 (1985); and Rasdon v.
Commonwealth, Ky.App., 701 S.W.2d 716 (1986).
In the present matter, we agree with the Commonwealth
that Thomas was provided with all of the necessary due process
safeguards in accordance with the statute and the applicable
case law.
She received written notice that the Commonwealth was
moving to revoke her probation along with a listing of the
violations acting as the basis for the revocation motion.
She
was afforded the right to be heard and appeared with retained
counsel at a full hearing during which she was permitted to
confront and cross-examine the witnesses against her and to
testify in her own behalf.
Lastly, the trial court, acting as a
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neutral body, made sufficient and appropriate findings of fact
supporting its decision to revoke her probation both at the
hearing and in its written order.
Thomas has not established that any palpable error
occurred or that any manifest injustice existed that would
justify the granting of relief in this matter.
Furthermore, the
trial court did not commit any error in revoking Thomas’s
probation based upon the evidence of record, including her use
on multiple occasions of alcohol, marijuana, and cocaine; her
stipulation as to the positive drug test results; her
stipulation as to her curfew violations; her driving on a DUIsuspended license; and her involvement in an incident of
marijuana trafficking.
All of the trial court’s findings
properly support the revocation of Thomas’s probation and
support the ultimate decision of incarceration rather than
another probation of the sentence.
For the foregoing reasons, the McCracken Circuit
Court’s October 16, 2002, order revoking probation is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Dennis Stutsman
Assistant Public Advocate
A. B. Chandler
Attorney General
David T. Eucker
Department of Public Advocacy
Frankfort, KY
Elizabeth A. Heilman
Assistant Attorney General
Frankfort, KY
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