J. L. BROWN v. COMMONWEALTH OF KENTUCKY
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RENDERED: May 7, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2002-CA-001701-MR
J. L. BROWN
v.
APPELLANT
APPEAL FROM FULTON CIRCUIT COURT
HONORABLE WILLIAM LEWIS SHADOAN, JUDGE
ACTION NO. 01-CR-00003
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: JOHNSON, TAYLOR, AND VANMETER, JUDGES.
TAYLOR, JUDGE:
J. L. Brown appeals from an order of the Fulton
Circuit Court revoking his probation for violating its terms by
committing other offenses and failing to comply with the terms
of his probation order.
The order also imposed the five-year
sentence of imprisonment received by Brown in association with
his guilty plea to the underlying offense, second-degree
possession of a forged instrument.
Because Brown failed to
properly preserve the issues raised in the appeal, all arguments
are reviewed under the palpable error standard.
For the reasons
stated below, we affirm.
On January 11, 2001, Brown was indicted on three
counts of criminal possession of a forged instrument in the
second degree, Kentucky Revised Statutes (KRS) 516.060.
The
charges were based upon the allegation that on December 26,
December 28, and December 29, 2000, Brown cashed forged checks
at the Fulton Bank Branch in the amounts of $50.00, $60.00, and
$80.00, respectively.
Brown and the Commonwealth initially entered into a
plea agreement under which the three possessions of a forged
instrument charges would be merged into one count and the
Commonwealth would recommend a one year sentence of
imprisonment.
On April 26, 2001, the trial court entered final
judgment and sentencing.
The trial court accepted Brown’s
guilty plea; however, rather than accepting the sentence
recommended by the Commonwealth in the plea agreement, the trial
court sentenced Brown to five years’ imprisonment, probated for
a period of five years.
Though the trial court imposed a
sentence in excess of the sentence provided for in Brown’s plea
agreement, the trial court did not afford Brown the opportunity
to either withdraw his guilty plea or to accept the original
one-year sentence provided for in the plea agreement without
probation.
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Following an allegation by the Department of
Corrections Division of Probation and Parole that Brown had
violated the terms of his probation, a probation revocation
hearing was held on July 11, 2002.
Following the hearing, the
trial court entered an order revoking Brown’s probation and
imposing the five-year prison sentence on the underlying felony.
This appeal followed.
Brown contends that the trial court violated his due
process rights.
Specifically, Brown alleges the trial court
erroneously proceeded with the probation revocation hearing
without proof of notice to Brown of the probation violations,
without notice of the hearing date, and without an evidentiary
hearing.
As with the remaining issues in this appeal, Brown
concedes that this issue was not preserved, and requests that
the argument be reviewed pursuant to the palpable error standard
contained in Ky. R. Crim. P. (RCr) 10.26.
RCr 10.26 states "[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."
Under Partin
v. Commonwealth, Ky., 918 S.W.2d 219, 224 (1996), relief will be
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granted only if the reviewing court concludes that “a
substantial possibility exists that the result would have been
different" absent the error.
It is well established that due process requires a
probation revocation proceeding to comply with the requirements
set forth in Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593,
33 L. Ed. 2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93
S. Ct. 1756, 36 L. Ed. 2d 656 (1973).
As the United States
Supreme Court noted in Gagnon, although there are some
differences between probation and parole, there is no
constitutionally distinguishable difference between revocation
of either.
Gagnon, 411 U.S. 778.
As such, our analysis remains
unchanged irrespective of whether we are considering the
revocation of an individual's probation or parole.
That is, the
procedural rigors of due process have been satisfied so long as
the revocation proceeding complies with the requirements first
articulated by Morrissey.
Robinson v. Commonwealth, Ky. App.,
86 S.W.3d 54 (2002).
A probation revocation proceeding "is not a part of a
criminal prosecution and thus the full panoply of rights due a
defendant in such a proceeding does not apply to [probation]
revocations."
Morrissey, 408 U.S. at 479.
Indeed, criminal
judicial proceedings and probation revocation hearings are quite
dissimilar in both form and substance.
4
As the United States
Supreme Court has noted, "[r]evocation deprives an individual,
not of the absolute liberty to which every citizen is entitled,
but only of the conditional liberty properly dependent on
observance of special parole restrictions."
Id. at 479.
If an
individual released on probation has failed to abide by the
conditions of his release, "the State has an overwhelming
interest in being able to return the individual to imprisonment
without the burden of a new adversary criminal trial. . . ."
Morrissey, 408 U.S. at 483. Although the State has a great
interest in reincarcerating those individuals who are unable to
meet the conditions of their probation, it may not do so without
first affording an individual the minimum requirements of due
process.
Id.
As articulated by the United States Supreme Court in
Morrissey, 408 U.S. at 489, minimum requirements of due process
include:
(a) written notice of the claimed violations
of [probation]; (b) disclosure to the
[probationer] of evidence against him; (c)
opportunity to be heard in person and to
present witnesses and documentary evidence;
(d) the right to confront and cross-examine
adverse witnesses (unless the hearing
officer specifically finds good cause for
not allowing confrontation); (e) a ‘neutral
and detached’ hearing body such as a
traditional parole board, members of which
need not be judicial officers or lawyers;
and (f) a written statement by the
factfinders as to the evidence relied on and
reasons for revoking [probation].
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While the Morrissey factors are not an exhaustive
list, they do establish a floor upon which the State is able to
construct its own due process requirements.
However, such a
process is not meant to become a second criminal prosecution.
Indeed, "the process should be flexible enough to consider
evidence. . . that would not be admissible in an adversary
criminal trial."
Morrissey, 408 U.S. at 489.
Because Brown’s first argument concerns procedural due
process issues and is to be reviewed under the palpable error
standard, we first review the background of events, following
Brown’s being placed on probation on April 26, 2001.
In association with the probation order, various terms
and conditions were placed upon Brown, including that he
successfully complete “drug court”; he not commit additional
criminal offenses; he complete 100 hours of community service;
and he report to his probation officer as directed.
While Brown initially made required drug court
appearances, his adherence to the program quickly declined.
The
drug court docket entries related to his June 8, 2001,
appearance noted that he had missed all three of his initial
urine tests, that he had failed to complete his entry level
homework, and that he had no explanation for failing to complete
these procedures.
The docket entries also noted that it was
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clearly explained to Brown that there should be no further
infractions of drug court procedures; however, the June 29,
2001, drug court docket sheet notes that Brown had missed drug
tests on June 21, June 22, and June 27, 2001.
On July 6, 2001, Brown failed to appear in drug court
and a warrant was issued for his arrest.
On October 12, 2001,
an “Order of Termination from Drug Court” was entered by the
drug court.
The order references a certification of violations
executed by the drug court treatment coordinator which cites as
violations that Brown had absconded from the program, Brown had
missed urine tests, Brown had missed supervision, and Brown had
missed group counseling.
served on Brown.
On January 10, 2002, the warrant was
The January 11, 2002, drug court docket
entries reflect that Brown successfully showed cause for his
failure to make the required appearances and was released from
custody.
Brown was able to show that he did not make the
required appearances because of his hospitalization for
diabetes.
On January 29, 2002, a second order of termination
from drug court was entered.
The certificate of violations
referenced Brown’s failure to comply with the terms of the
program due to his arrest for flagrant non-support in the sum of
$16,000.00.
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On May 1, 2002, the Division of Probation and Parole
issued a special supervision report and warrant request.
The
warrant request stated as follows:
J. L. Brown was sentenced to five years,
probated five years on April 26, 2001. A
special condition of his probation was that
he attend and complete Drug Court. Mr.
Brown was accepted for Drug Court but failed
to show up on May 11, 2001.
Mr. Brown did complete Fuller Treatment
Center during May 2001 and then went to the
Freidman Center in Paducah, Ky. According
to Mona Hoyle, Treatment Supervisor, Mr.
Brown completed treatment at the Freidman
Center. Mr. Brown has never contacted the
Fulton Probation & Parole Office and had not
been supervised by any probation officer.
Mr. Brown absconded Drug Court and probation
supervision. Mr. Brown works for Easter
Seals in Paducah and they have an address on
him, but refuse to give it to anyone. Mr.
Brown is living in Paducah somewhere. He
was arrested on January 10, 2002 for Failure
to Appear on a Flagrant Non-Support case in
which he owes $16,000.
Mr. Brown has not followed any of his
conditions of probation and it does not
appear he will in the future.
Based on Mr. Brown’s actions, it is
requested that a warrant be issued and Mr.
Brown be held until a Revocation Hearing can
be held.
On July 11, 2002, the Department of Corrections
Division of Probation and Parole issued a Notice of Preliminary
Hearing for revocation of Brown’s probation.
violations were identified as follows:
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The alleged
1. Absconding probation supervision. Has
never reported to any probation officer
since his release on probation of 4-26-2001.
2. Failure to complete community service
work as directed.
3. Failure to comply with treatment program
for substance abuse as directed. Was
terminated from Drug Court on 10-12-2001.
Was given second chance and was terminated
again on 01-29-02.
4. Failure to report arrest within 72 hrs.
to probation officer. Was arrested January
10, 2002 for Flagrant Non-Support.
The notice also included a section explaining to Brown
his rights and responsibilities in the revocation process.
Brown signed the notice stating that he understood the charges
against him and his rights and responsibilities.
On July 11, 2002, the probation revocation hearing was
held.
Brown appeared and was represented by counsel.
The trial
court read the charges as set out by the probation officer and
inquired of Brown why, based upon the charges, his probation
should not be revoked.
In rebuttal to the Division of Probation
and Parole’s position that probation should be revoked, counsel
stated that Brown had completed a drug treatment program.
The
trial court questioned Brown regarding the remaining
allegations, and Brown was unable to explain why he had not
abided by those conditions.
Brown alleged that he did not know
about the community service requirements and that he had not
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reported to his probation officer because he was waiting to be
contacted by the officer.
Brown conceded that he had been
arrested for flagrant non-support.
Based upon the discussion at
the bench, and without an evidentiary hearing, the trial court
revoked Brown’s probation and imposed the five-year prison term.
In summary, the record discloses that Brown received
notice of the hearing and the allegations against him.
The
Notice of Preliminary Hearing filed by the Probation and Parole
Officer discloses both the allegations and the date of the
hearing.
Brown signed the notice.
Brown and counsel were given
ample opportunity to present arguments in opposition to
probation revocation.
While we agree that Brown was entitled to the full
range of due process protections identified in Morrissey, he was
substantially accorded those rights in the course of the
probation revocation proceeding.
Indeed, Brown made no
objection to the revocation proceedings, nor did he request an
evidentiary hearing.
Brown does not now identify any witnesses,
evidence, and testimony he would have presented in the event of
a full evidentiary hearing which could have changed the outcome
of the case.
Further, Brown offers no compelling rebuttal to
the allegation that he violated the conditions of his probation
as alleged by the Division of Probation and Parole.
10
Our review of this issue is pursuant to the palpable
error standard in RCr 10.26.
Even if Brown had been given
additional advance notice of the allegations and the date of the
hearing, and had a full evidentiary hearing been held, Brown had
clearly violated conditions of his probation.
Accordingly, we
are not persuaded that there is a reasonable possibility that
the result would have been different.
Next, Brown contends that the trial court erred in
“speaking for Mr. Brown in entering a plea of guilty and without
a determination that Brown wished to plead guilty or that the
plea was made knowingly and voluntarily.”
The premise of this allegation is unsupported by the
record, and, on the whole, is confusing.
Based upon our review
of the probation revocation hearing, the trial court did not
enter a “guilty plea” on behalf of Brown.
Rather, the trial
court confronted Brown and his counsel with the allegations
presented by the Division of Probation and Parole and gave them
the opportunity to show cause why, in light of the allegations,
probation should not be revoked.
The trial court did not
purport to enter a “guilty plea” on behalf of Brown.
To the
contrary, the trial court gave Brown the opportunity to rebut
the allegations.
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Again, this issue is unpreserved, and we review it
under the palpable error standard.
We do not believe a manifest
injustice occurred with regard to this issue.
Finally, Brown contends that the trial court was
“without jurisdiction” to sentence him.
When the trial court
rejected the initial plea bargain between Brown and the
Commonwealth, the trial court failed to advise Brown of his
right to withdraw his guilty plea pursuant to RCr 8.10.
Brown
argues that each failure violated RCr 8.10 and deprived the
trial court of jurisdiction.
At the outset of the April 26, 2001, sentencing
hearing, defense counsel raised the issue of probation.
The
trial judge then acknowledged that the plea agreement provided
for a one-year sentence of imprisonment, but stated that, when
he grants probation on a one-year recommendation from the
Commonwealth, he imposes a five-year sentence of imprisonment
with a five-year probation period.
The trial court further
stated that this should make no difference as long as Brown
abides by the probation requirements.
a similar explanation to Brown.
Defense counsel then gave
At no time during the
sentencing hearing did the trial court afford Brown the
opportunity to either withdraw his plea agreement as a result of
the greater sentence or to reject the higher sentence and accept
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the original one-year sentence pursuant to the plea bargain
without the benefit of probation.
RCr 8.10 provides as follows:
At any time before judgment the court
may permit the plea of guilty or guilty but
mentally ill, to be withdrawn and a plea of
not guilty substituted.
If the court rejects the plea
agreement, the court shall, on the record,
inform the parties of this fact, advise the
defendant personally in open court or, on a
showing of good cause, in camera, that the
court is not bound by the plea agreement,
afford the defendant the opportunity to then
withdraw the plea, and advise the defendant
that if the defendant persists in that
guilty plea the disposition of the case may
be less favorable to the defendant than that
contemplated by the plea agreement.
The court can defer accepting or
rejecting the plea agreement until there has
been an opportunity to consider the
presentence report.
If the trial court chooses to reject a plea agreement,
it must inform the defendant of its decision and allow defendant
to withdraw his guilty plea if he so chooses.
Kennedy v.
Commonwealth, Ky. App., 962 S.W.2d 880 (1997).
Based upon the video record of the sentencing hearing,
Brown was not notified of his right to withdraw his plea.
However, we disagree with Brown that this violation of RCr 8.10
deprived the trial court of jurisdiction.
The sentencing court
which imposed probation retains jurisdiction over the case
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during the period of probation.
KRS 533.020; Commonwealth v.
Griffin, Ky., 942 S.W.2d 289 (1997).
Although, Brown was not afforded the opportunity to
withdraw his guilty plea pursuant to RCr 8.10, we are of the
opinion that a remedy for this allegation of error is not
available in this appeal.
“The structure provided in Kentucky
for attacking the final judgment of a trial court in a criminal
case is not haphazard and overlapping, but is organized and
complete.
That structure is set out in the rules related to
direct appeals, in RCr 11.42, and thereafter in [Ky. R. Civ. P.]
Gross v. Commonwealth, Ky., 648 S.W.2d 853, 856
CR 60.02.”
(1983).
This is a direct appeal from an order revoking Brown’s
probation.
Brown may properly raise issues relating to the
probation revocation proceeding, but he may not raise issues
relating to the April 26, 2001, judgment and sentence.
As such,
we decline to reach the merits of this issue.
For the foregoing reasons, we affirm the judgment of
the Fulton Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Lisa Clare
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
Albert B. Chandler
Attorney General
Janine Coy Bowden
Assistant Attorney General
Frankfort, Kentucky
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