STEVEN RAY MAYFIELD v. COMMONWEALTH OF KENTUCKY
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RENDERED:
APRIL 14, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001907-MR
STEVEN RAY MAYFIELD
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE LISABETH HUGHES ABRAMSON, JUDGE
ACTION NO. 03-CR-001194
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
TACKETT AND TAYLOR, JUDGES; EMBERTON, SENIOR JUDGE.1
EMBERTON, SENIOR JUDGE:
Steven Mayfield appeals an order of the
Jefferson Circuit Court revoking his probation.
He alleges that
his rights to procedural due process were infringed at the
revocation hearing.
Because a review of the record discloses no
reversible error, we affirm the decision of the circuit court.
On July 10, 2003, Mayfield pled guilty to five offenses
arising out of an automobile accident.
1
In exchange for his
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
plea, the Commonwealth recommended sentences of one year on a
wanton endangerment charge, one year on a charge of criminal
mischief, twelve months on an assault charge, and 14 days plus a
$500 fine on a charge of driving under the influence.2
The trial
judge accepted Mayfield’s plea, and, in accordance with the
Commonwealth’s recommendation, he was sentenced to a total of
one year of imprisonment, probated for five years.
The grant of
probation was specifically contingent upon compliance with the
following conditions during the period of probation:
1)
2)
3)
4)
5)
6)
7)
8)
9)
Remain on good behavior and refrain from
further violation of the law in any
respect.
Comply with all instructions and
conditions imposed by the Bureau of
Corrections, Division of Probation and
Parole.
Submit to random drug and/or alcohol
urinalysis testing at the Defendant’s
expense.
Be evaluated for substance and alcohol
abuse and psychological problems.
Receive and successfully complete any
drug, alcohol, vocational and/or
psychological counseling as recommended
by Probation and Parole.
Pay court costs of $100.00 within ninety
(90) days.
Pay a supervision fee of $500.00 at the
rate of $15.00 per month.
Maintain full-time employment as
capable.
Work toward obtaining GED.
2
At the conclusion of the revocation hearing the trial judge amended the
charge of DUI second offense to DUI first offense on the basis that it
appeared Mayfield had been improperly charged. The penalty remained the
same.
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The Commonwealth filed a motion to revoke Mayfield’s
probation on May 6, 2004 based upon the reports of probation and
parole officers which were appended to the motion.
The first
report dated January 9, 2004, stated that an arrest warrant for
Mayfield had been issued on January 3, 2004, based upon a
criminal complaint alleging that he pulled a knife, threatened
to stab his girlfriend’s mother, and kicked in the driver’s side
door of her car causing $300 in damages.
Although Mayfield was
charged with menacing criminal mischief and terroristic
threatening stemming from that incident, he failed to report the
charges within 72 hours as required by the conditions of his
probation.
A February 5, 2004, special supervision report stated
that Mayfield was cited on January 28, 2004, for speeding 16
miles over the limit and for operating a vehicle on a suspended
license.
Mayfield again failed to report the citation as
required.
A third report dated March 31, 2004, indicated that
since January 2004, Mayfield had generated five cases in
Jefferson District Court.
After updating the status of charges
filed by his girlfriend’s mother and informing the court that
Mayfield had pled guilty to an amended charge of careless
driving in the case concerning charges of speeding and driving
on a suspended license, the reporting officer outlined three
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sets of new charges filed during the month of March.
On March
2, 2004, Mayfield was arrested on charges of possession of a
controlled substance, promoting contraband and tampering with
physical evidence.
On March 17, 2004, Mayfield was arrested for
tampering with physical evidence and failure to report address
change to the Department of Transportation.
On that same date
he was charged for trafficking in a controlled substance and
receiving stolen property under $300.
Of particular
significance to this appeal, the report stated that Mayfield had
been terminated from the New Beginnings drug treatment program:
Mr. Mayfield was enrolled in New Beginnings
drug treatment program on 10-13-03, in
accordance with the court’s order that he be
evaluated for substance abuse and to receive
treatment recommended by probation and
parole. Mr. Mayfield was terminated from
New Beginnings due to “poor attendance.”
Two additional reports were appended to the revocation motion.
A revocation hearing was scheduled for May 26, 2004.
At the beginning of the hearing, Mayfield’s counsel filed a CR
60.02 motion alleging that although Mayfield had pled guilty to
DUI second offense, there was no evidence of a prior offense.
The Commonwealth responded that it would recheck the record and
that if counsel’s allegation proved true, Mayfield could be resentenced.
Counsel then moved to strike the Commonwealth’s
motion to revoke, arguing that the motion failed to comply with
RCr 8.14 because it did not state with particularity the grounds
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for the motion in that the basis for the motion was not set out
in the motion itself, but was merely contained in reports
appended to the motion.
The trial judge responded that it was
the custom and practice in Jefferson Circuit Court to attach the
special supervision reports to revocation motions and that the
reports speak for themselves.
The trial judge also noted that
it was obvious why Mayfield was in court on a revocation motion
since he had generated a number of cases on various charges
during the year, that it appeared he had been on a crime spree
for months, and that he had been terminated from a required
substance abuse program.
Despite counsel’s complaint that he
would have to be prepared to respond to everything contained in
the reports at the revocation hearing, the trial court ruled
that there was adequate written notice and that counsel indeed
would be required to address anything in the reports that would
be a violation of the conditions imposed by the court’s judgment
and sentence of probation entered August 19, 2003.
A new
hearing date was set for June 25, 2004.
After hearing the testimony of two of Mayfield’s
probation officers, the trial judge concluded that he had failed
to comply with the terms of his probation by failing to complete
the substance abuse program as required by the judgment.
Among
other things, the trial judge specifically found that Mayfield
had the requisite notice of his obligation to attend the program
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as evidenced by his attendance for a few times before he decided
not to attend.
She therefore determined that it was appropriate
to revoke Mayfield’s probation and ordered him to serve the oneyear sentenced imposed on August 19, 2003.
The first argument advanced in this appeal is that the
revocation motion filed by the Commonwealth is insufficient to
provide him with adequate notice of the grounds for the motion.
We disagree.
In Robinson v. Commonwealth,3 this Court had
occasion to examine the due process requirements attendant to
probation revocation proceedings:
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 parole
revocations." Morrissey, [Morrissey v.
Brewer, 408 U.S. 471, 489 (1972)] supra.
Indeed, criminal judicial proceedings and
probation revocation hearings are quite
dissimilar in both form and substance. As
the United States Supreme Court has noted,
"[r]evocation [of probation] 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."
One of the minimum requirements of due process cited in that
opinion is the provision of written notice of the claimed
violations.
A common sense reading of the Commonwealth’s motion
makes clear that adequate notice was afforded.
3
86 S.W.3d 54, 56 (Ky.App. 2002).
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The reports
appended to the motion state in clear detail the actions the
probation officer deemed to be a violation of the terms of
Mayfield’s probation.
Despite counsel’s protestations that the
form of the revocation motion gave the prosecution an unfair
litigation advantage, we fully agree with the trial court’s
assessment that the reasons for the revocation motion are
painfully obvious from a reading of the written motion and
supervision reports.
We are thus of the opinion that it borders
on the frivolous to suggest that Mayfield suffered due process
deprivations solely by reason of the form of the motion.
Next, Mayfield argues that by allowing the division of
probation and parole to select the appropriate substance abuse
counseling program, the trial court improperly delegated to the
division of probation and parole the ability to modify the
conditions of his probation.
Again, we disagree.
The
obligation to complete a substance abuse program recommended by
the division of probation and parole was specifically spelled
out in the judgment probating Mayfield’s sentence.
Although
Mayfield’s counsel attempts to inject confusion as to the
explicit nature of the counseling requirement, it is clear from
the evidence adduced at the hearing that Mayfield was well-aware
of his obligation to complete the program selected.
The trial
judge properly observed that the best evidence of Mayfield’s
understanding of his obligations under the judgment is the fact
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that he enrolled in the program selected and attended for a
time.
The trial judge was well-within her authority to delegate
to the division of probation and parole the selection of a
program best suited to Mayfield’s needs.
Furthermore, we fail to see the relevance of the
imposition of a “no-contact” requirement with a minor named
Miranda Ellis to the revocation of Mayfield’s probation.
Whether the division of probation and parole had authority to
add this condition is of no consequence where the trial judge
specifically stated she was not considering the alleged
violation of the no-contact requirement.
Because it had no
bearing on the decision to revoke, imposition of the no-contact
requirement cannot constitute error on appeal.
Mayfield’s third allegation is that the trial court
improperly revoked his probation based merely upon a finding
that he had an indicted offense, without making the requisite
finding that he had in fact violated the law.
After finding
that Mayfield had violated the conditions of his probation by
failing to attend substance abuse counseling, the trial judge
noted that he also had been indicted on burglary charges and
that he had given authorities a taped statement outlining his
involvement in that crime.
Even were we to construe the use of
that charge as error, it has no bearing on the result of the
proceeding because revocation was properly supported by the
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finding as to Mayfield’s violation of the counseling
requirement.
Finally, Mayfield argues that the trial judge’s
written order on the revocation motion is insufficient in that
it determined only that he had violated the terms of his
probation without addressing the second essential finding of
whether his probation should therefore be revoked.
Mayfield
also challenges as error the failure to include in the written
order a statement as to the evidence relied upon and the
reasoning utilized in concluding that the probation should be
revoked.
We find no reversible error.
A similar argument was rejected by this Court in
Rasdon v. Commonwealth4 which noted that because the court’s
findings were transcribed and included as part of the transcript
of the hearing, it was not the type of error which required
reversal.
So it is in this case.
The purpose of written
findings is to allow the probationer to be apprised of the basis
for the court’s decision.
The reasoning behind the revocation
in this case is abundantly clear from a review of the hearing
transcript.
Thus, the error, if any, is entirely harmless.
In sum, while we agree that Mayfield was entitled to
the full range of due process protections identified in
Morrissey, there is no question that he was substantially
4
701 S.W.2d 716, 719 (Ky.App. 1986).
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accorded those rights in the course of this probation revocation
proceeding. Although Mayfield advances a laundry list of
technical procedural objections to the revocation proceedings,
what is glaringly absent is an identification of any witnesses,
evidence, and testimony he could have presented had the alleged
procedural shortcomings been corrected.
Indeed, Mayfield offers
absolutely no rebuttal to the allegation that he violated the
conditions of his probation as alleged by the Division of
Probation and Parole.
It is therefore clear beyond any doubt
that the result of this proceeding would not have been different
but for the alleged errors.
Mayfield was not deprived of any
fundamental right.
The judgment of the Jefferson Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
J. Vincent Aprile II
Louisville, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Susan Roncarti Lenz
Assistant Attorney General
Frankfort, Kentucky
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