LAVETTE PATTERSON v. COMMONWEALTH OF KENTUCKY
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RENDERED:
OCTOBER 28, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002118-MR
LAVETTE PATTERSON
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DENISE CLAYTON, JUDGE
ACTION NO. 01-CR-001831
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, MINTON, AND TAYLOR, JUDGES.
BARBER, JUDGE:
Appellant, Lavette Patterson (Patterson),
appeals the Jefferson Circuit Court’s denial of her motion for
custody time credit for time spent in a rehabilitation facility.
We affirm the court’s denial of credit.
In October 2001, Patterson pled guilty to a charge of
second degree robbery and was sentenced to serve five years.
That sentence was probated based on compliance with certain
conditions.
These included attendance and completion of the
Jefferson County Drug Court program.
In December 2001, Patterson’s probation was revoked.
The revocation occurred because Patterson was arrested for
violating the conditions of probation, including possession of
drug paraphernalia and alcohol and drug intoxication.
Patterson
stipulated to the parole violations asserted against her.
In
lieu of revocation of probation, the court ordered Patterson to
serve 60 days’ home incarceration and to continue to comply with
all other terms of probation previously imposed.
In February 2002, the court entered an agreed order
which provided that Patterson was released from home
incarceration in order to enter the residential Jefferson
Alcohol and Drug Abuse Center (JADAC) for treatment.
When
Patterson appeared at JADAC for admission on February 26, 2002,
she was refused admittance because she was intoxicated.
Patterson was instructed to report to JADAC the following day.
Patterson failed to show up at JADAC on February 27, 2002.
Patterson was incarcerated under a revocation of
probation motion in March 2002.
She was subsequently released
on defense counsel’s request in order to attend the inpatient
drug treatment program at A New Beginning for Women Cultivating
a Rose, Inc., (New Beginnings).
She spent 159 days living at
New Beginnings during treatment.
She was discharged from New
Beginnings on August 19, 2002 for failure to complete the
program.
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In September 2002, Patterson entered an outpatient
program, the Second Chance Program.
that program in December 2002.
She was terminated from
The Commonwealth filed another
motion to revoke her probation in January 2003.
Patterson was
given another chance at rehabilitation when she entered the St.
Jude Program in spring, 2003.
positive for cocaine.
In June 2003, Patterson tested
Her probation was revoked in July 2003.
In the order revoking probation for the final time the court
ordered that Patterson “be credited with time spent in custody
for this offense.”
Patterson received credit for all time she
served in prison awaiting hearings on motions and time spent
incarcerated prior to sentencing.
Patterson contends that the Department of Corrections
failed to properly credit her with all time due.
Patterson
argues that the time she spent in New Beginnings, a residential
substance abuse treatment program, should be credited towards
the sentence imposed on her.
She claims that participation in
that residential program was a condition of probation, and
therefore, constituted time she was required to serve.
Patterson made repeated requests that the Office of Probation
and Parole credit her with this time as time served on her
sentence.
In June 2004, Patterson filed a motion for custody
time credit, specifically requesting credit for the time she
spent in custody at New Beginnings, (March 13, 2002 – August 19,
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2002).
The Commonwealth objected to Patterson’s motion
asserting that time spent in a halfway house was not equal to
time spent in jail.
The Commonwealth contended that the time in
the halfway house was a condition of probation and not time
spent incarcerated.
The trial court ruled that time spent in treatment
programs was not time spent in custody such that Patterson
should be given custody credit for that time.
The court found
that Patterson did not face escape or other criminal charges if
she left the facility, and that she was not confined to the
facility against her will.
Patterson voluntarily chose to
attend the residential treatment program.
The court also found
that the facility was not run by public servants, but was a
private organization.
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. . . .”
Patterson
asserts that because a condition of her probation was that she
attend a drug treatment program, the time spent in the
residential treatment program should be considered time spent in
custody.
Patterson contends that KRS 67B.020(3) includes “all
rehabilitative facilities of a county” as correctional
facilities.
She argues that under such a definition, New
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Beginnings should properly have been considered a correctional
facility by the court.
The Commonwealth argues that New Beginnings is not a
halfway house, such that confinement therein can properly be
considered custody.
A halfway house is a placement designed to
assist a prisoner in the adjustment from prison to civilian
life.
Rosary Catholic Parish of Paducah v. Whitfield, 729
S.W.2d 27, FN 1 (Ky.App. 1987).
Such facilities house
prisoners, and are operated under the Corrections Cabinet.
Id.
New Beginnings is not operated by the state or under corrections
cabinet purview.
Persons residing at New Beginnings are not
subject to charges if they leave the facility without consent.
The Commonwealth contends that such an environment cannot
constitute custody, even where, as here, residents of New
Beginnings do have to comply with certain rules and regulations
to maintain placement in the program.
The cases relied upon by Patterson as showing that
residential placement constitutes custody dealt with
environments which were more restrictive than that offered by
New Beginnings.
Other jurisdictions have found that where the
program is not a public facility or under review or control by
the corrections cabinet, the program should not be considered
equivalent to jail time.
See:
Maus v. State, 532 A.2d 1066
(Md. 1987); State v. Cobb, 400 N.W.2d 9 (Wisc. 1986).
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The
Commonwealth urges this Court to look to Commonwealth v.
Speight, 794 N.E.2d 600 (Mass.App. 2003), in which the court
held that even where time at a rehabilitation center is a
condition of probation, credit against the sentence imposed is
not given for such inpatient treatment.
A grant of probation is a privilege rather than a
right.
Tiryung v. Commonwealth, 717 S.W.2d 503, 504 (Ky.App.
1986).
The trial court granted Patterson an exception to the
sentence imposed on her when it permitted her to remain on
probation.
The terms and conditions of that probation, even
where they included a stay at New Beginnings, did not constitute
incarceration.
In comparing inpatient treatment with prison, a
Kentucky court ruled:
[Inpatient treatment] should not be used by
the court as a substitute for prison.
Indeed, the decision to place a defendant on
probation under any conditions reflects a
determination by the sentencing court that
the state’s penological interests did not
require imprisonment.
Keith v. Commonwealth, 689 S.W.2d 613, 615 (Ky.App. 1985).
The
sentencing court in this case gave Patterson the opportunity to
avoid time spent in custody by attending a residential treatment
program.
That privilege cannot properly be considered
equivalent to jail.
Persons at New Beginnings can visit with
family, shop and cook meals, work, and even go on leave outside
the facility.
We affirm the trial court’s finding that
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Patterson is not entitled to custody time credit for her time at
New Beginnings.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Elizabeth B. McMahon
Assistant Public Defender
Louisville, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Robert E. Prather
Assistant Attorney General
Frankfort, Kentucky
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