MARNEY (CLEATUS L.) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: OCTOBER 31, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
CLEATUS L. MARNEY, JR.
APPEAL FROM FULTON CIRCUIT COURT
HONORABLE TIMOTHY C. STARK, SPECIAL JUDGE
ACTION NO. 02-CR-00141
COMMONWEALTH OF KENTUCKY
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BEFORE: CAPERTON AND STUMBO, JUDGES; BUCKINGHAM,1 SENIOR
STUMBO, JUDGE: Cleatus L. Marney, Jr. appeals from a Final Judgment and
Revocation of Probation of the Fulton Circuit Court. Marney was convicted on
one count of failure to comply with sex offender registration and was found to
have violated his probation. Marney contends that his due process rights were
violated when the court failed to give a written statement of the evidence relied on
Senior Judge David C. Buckingham, sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
and the reasons for revoking his probation. For the reasons stated below, we
affirm the judgment on appeal.
On September 26, 2002, the Fulton County grand jury indicted
Marney on one count of Failure to Register as a Sex Offender. The indictment
alleged that Marney failed to complete a sex offender registration form and submit
it to the proper law enforcement entity as required by statute after he relocated
from another state to Kentucky. After several continuances, Marney entered a plea
of guilty on September 23, 2004. On January 13, 2005, the circuit court rendered a
Judgment and Sentence on Plea of Guilty accepting Marney’s guilty plea and
sentencing him to five years in prison. As part of the judgment, Marney’s sentence
was probated for five years and Marney was ordered to register as a sex offender.
On January 13, 2006, an arrest warrant was issued alleging that
Marney violated the terms of his probation by absconding from supervision, failing
to report as directed, failing to complete community service and failing to maintain
employment. On April 17, 2006, he was released from custody by order of the
Fulton Circuit Court for the apparent purpose of receiving a medical examination
in Cape Girardeau, Missouri, by Dr. Anthony Zoffuto. An order rendered on May
15, 2006, extended Marney’s probation for an additional five years. The record
does not reveal any resolution of the January 13, 2006, allegation of probation
On December 4, 2006, Marney’s probation officer alleged that
Marney violated the terms of his probation by testing positive for cocaine use on
three occasions between September and October, 2006, and failing to attend an
outpatient substance-abuse treatment facility as directed. A hearing on the matter
was conducted in Fulton Circuit Court, whereupon the court rendered a Final
Judgment and Revocation of Probation on December 19, 2006, which “adjudged . .
. that the defendant is guilty of the crimes of . . . Failure to Comply with Sex
Offender Registration . . . [and] Probation Violation.” The judgment revoked
Marney’s probation and sentenced him to five years in prison (apparently, though
not expressly, requiring Marney to serve the original five-year sentence imposed
on January 13, 2005). This appeal followed.
Marney now argues that the circuit court violated the minimal due
process requirements to which he is entitled when it revoked his probation.
Specifically, he contends that his due process rights were violated when the circuit
court failed to produce a written statement of the evidence relied upon and the
reasons for revoking his probation. Citing Kentucky Revised Statutes (KRS)
533.050(2) and Morrisey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484
(1972), Marney claims that he was entitled to “written notice of the grounds for
revocation or modification.” He claims that he received no such notice and that the
court’s written statement is merely conclusory. In sum, he requests an order
reversing his revocation and remanding the matter for a new hearing.2
Both parties have cited unpublished opinions. We have not considered these cases in light of
the fact that unpublished opinions shall never be cited or used as authority. Kentucky Rules of
Civil Procedure 76.28(4).
We have closely examined Marney’s argument and find no basis for
reversing the revocation order. We must first note that Marney’s claim of error is
not preserved for appellate review. When a trial court has allegedly failed to make
findings on essential issues, the failure to bring such omission to the attention of
the trial court is fatal to the appeal. Vinson v. Sorrell, 136 S.W.3d 465 (Ky. 2004).
“A final judgment shall not be reversed or remanded because of the failure of the
trial court to make a finding of fact on an issue essential to the judgment unless
such failure is brought to the attention of the trial court by a written request for a
finding on that issue or by a motion pursuant to Rule 52.02.” Kentucky Rule of
Civil Procedure (CR) 52.04. In the matter at bar, Marney did not seek additional
findings nor otherwise avail the circuit court of the opportunity to correct the
alleged error. As such, the alleged error is not preserved for appellate review, and
this fact alone forms a sufficient basis for affirming the order on appeal.
Arguendo, even if Marney’s claim were preserved, we would find no
error. KRS 533.050(2) states that 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.” Similarly, Morrisey held that:
Our task is limited to deciding the minimum
requirements of due process. They include (a) written
notice of the claimed violations of parole; (b) disclosure
to the parolee 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 [sic] as to the evidence relied
on and reasons for revoking parole.
Resolution of Marney’s claim of error would turn on whether his
minimal due process rights were satisfied during the course of the revocation
proceeding. We must conclude that they were. A revocation hearing is an
“informal process.” Marshall v. Commonwealth, 638 S.W.2d 288, 289 (Ky. App.
1982). It is not a criminal prosecution and the full panoply of rights due the
defendant in criminal prosecutions is not applicable. Id. “[T]here is no thought to
equate . . . parole revocation to a criminal prosecution in any sense. It is a narrow
inquiry; the process should be flexible enough to consider evidence including
letters, affidavits, and other material that would not be admissible in an adversary
criminal trial.” Morrissey, 408 U.S. at 489, 92 S.Ct. at 2604, 33 L.Ed.2d at 499.
In the matter at bar, while the circuit court did not render written
findings of fact, there can be little doubt but that Marney was apprised of the
court’s basis for revoking his probation. A written allegation signed by his
probation officer was entered into the record, which set forth with specificity the
claim that Marney tested positive for cocaine usage on three occasions, admitted in
writing to having used cocaine, and failed to participate in drug counseling as
ordered. Marney signed the written allegation. Furthermore, testimony was
adduced at the revocation hearing in support of the claim that Marney violated the
terms of his probation, and the entire proceeding was memorialized on videotape
and is part of the appellate record. It is not plausible that Marney was unaware of
the basis for his probation officer’s allegation that Marney violated his probation,
nor the basis for the revocation. Accordingly, even if this argument were
preserved for review, we could not conclude that Marney was denied the minimal
due process rights set out in Morrissey, and accordingly find no error.
For the foregoing reasons, we affirm the Final Judgment and
Revocation of Probation of the Fulton Circuit Court.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Donald H. Morehead
Assistant Public Advocate
Department of Public Advocacy
Attorney General of Kentucky
Todd F. Ferguson
Assistant Attorney General