MARSHALL (RANDY) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: AUGUST 8, 2008; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM GRAVES CIRCUIT COURT
HONORABLE TIMOTHY C. STARK, SENIOR JUDGE
ACTION NO. 04-CR-00187
COMMONWEALTH OF KENTUCKY
VACATING AND REMANDING
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BEFORE: CLAYTON, MOORE, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Randy Marshall brings this appeal from a June 6, 2007, order
of the Graves Circuit Court revoking Marshall’s conditional discharge upon the
offense of flagrant nonsupport. We vacate and remand.
In April 2005, Marshall pleaded guilty to the offense of flagrant
nonsupport. Kentucky Revised Statutes 530.050. The circuit court sentenced
Marshall to three-years’ imprisonment but conditionally discharged the sentence
provided Marshall timely pay previously ordered child support and pay specified
additional sums to retire the accumulated arrearage.
In April 2007, the Commonwealth filed a motion to revoke Marshall’s
conditional discharge. The Commonwealth maintained that Marshall violated his
conditional discharge by failing to pay child support and, in fact, had not made a
payment since November 2005.
A hearing was held on the Commonwealth’s motion to revoke where
Marshall argued and testified that he lacked the ability to pay the ordered child
support. Following the hearing, the circuit court revoked Marshall’s conditional
discharge and ordered that he be imprisoned for the remainder of his sentence.
This appeal follows.
Marshall initially argues:
The trial court violated Randy Marshall’s constitutional
rights under the due process clause of the Fourteenth
Amendment of the United States Constitution, and under
Sections One, Two and Eleven of the Kentucky
Constitution when it refused to examine possible
alternative punishments to imprisonment and denied
Randy his freedom even though he did not willfully
refuse to pay his child support.
Marshall’s Brief at 5. In particular, Marshall maintains that he “was too poor to
pay his support obligation” and that the circuit court erroneously failed to consider
alternative forms of punishment other than imprisonment. Marshall contends that
the circuit court was required to “inquire into the reasons why the defendant was
unable to pay” before revoking probation or conditional discharge. In support
thereof, Marshall cites this Court to Clayborn v. Commonwealth, 701 S.W.2d 413
(Ky.App. 1985) and Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76
L.Ed.2d 221 (1983). For the reasons hereinafter elucidated, we reject Marshall’s
The Court of Appeals’ standard of review of a circuit court’s decision
to revoke probation or conditional discharge is whether the circuit court abused its
discretion. Ridley v. Com., 287 S.W.2d 156 (Ky. 1956). An abuse of discretion
occurs when the “decision was arbitrary, unreasonable, unfair, or unsupported by
sound legal principles.” Miller v. Eldridge, 146 S.W.3d 909, 914 (Ky.
2004)(quoting Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581
Marshall’s reliance upon Clayborn, 701 S.W.2d 413 and Bearden,
461 U.S. 660 is misplaced. Both cases involved revocation proceedings for failure
to pay a fine or restitution required as a condition of probation. In Clayborn and
Bearden, it was held:
[I]n revocation proceedings for failure to pay a fine or
restitution, a sentencing court must inquire into the
reasons for the failure to pay. If the probationer willfully
refused to pay or failed to make sufficient bona fide
efforts legally to acquire the resources to pay, the court
may revoke probation and sentence the defendant to
imprisonment within the authorized range of its
sentencing authority. If the probationer could not pay
despite sufficient bona fide efforts to acquire the
resources to do so, the court must consider alternate
measures of punishment other than imprisonment. Only
if alternate measures are not adequate to meet the State's
interests in punishment and deterrence may the court
imprison a probationer who has made sufficient bona fide
efforts to pay. . . .
Bearden, 461 U.S. at 672-673; Clayborn, 701 S.W.2d at 415.
Clayborn and Bearden pertain to nonpayment of fines and restitution;
by contrast, the case sub judice pertains to nonpayment of child support. See id.
The distinction is pivotal. There is simply no legal authority requiring the circuit
court to consider alternative forms of punishment when revoking probation or
conditional discharge for failure to pay child support. As such, we do not believe
the circuit court erroneously failed to consider alternative forms of punishment
when revoking Marshall’s conditional discharge.
Marshall also argues that the circuit court’s order revoking conditional
discharge did not contain findings of fact and, thus, violated his constitutional due
It is clear that a probation revocation proceeding must conform to the
minimum requirements of due process of law. Rasdon v. Com., 701 S.W.2d 716
(Ky.App. 1986). The United States Supreme Court has set forth the minimal due
process requirements applicable to a probation revocation proceeding:
(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 as to the evidence
relied on and reasons for revoking parole.
Morrissey v. Brewer, 408 U.S. 471, 489, 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).
The June 6, 2007, order revoking Marshall’s conditional discharge
consisted of four paragraphs and read:
On April 19, 2005, this Court entered its Judgment
and Sentence upon [Marshall’s] plea of guilty to
Flagrant Non-Support, and fixed [Marshall’s]
punishment at Three (3) years in the penitentiary and
conditionally discharged said sentence for Five (5)
This matter is now before the Court on motion of
the Commonwealth to revoke [Marshall’s] conditional
discharge on grounds of violation of the terms of
conditional discharge by his failure to keep current in his
child support payments and his failure to pay additional
payments on his arrearage which were conditions of his
[Marshall] appeared in Court with counsel, and the
Court having heard testimony and being sufficiently
advised from the record, now GRANTS the
Commonwealth’s motion and hereby REVOKES
[Marshall’s] conditional discharge for violations as set
forth above. It is hereby ORDERED that the remainder
of [Marshall’s] sentence shall be served in an institution
under the control of the Kentucky Corrections Cabinet.
It is FURTHER ORDERED that [Marshall] is
entitled to -0- days additional jail credit.
A review of the June 6, 2007, order reveals that the circuit court failed to make
findings of fact specifying the evidence relied upon to support its decision to
revoke Marshall’s conditional discharge. We are not in a position nor are we
permitted as an appellate court to make assumptions regarding the evidence and
factual predicate relied upon by the circuit court in rendering its decision in this
case. A written statement delineating the evidence and reasons supporting
revocation are constitutionally mandated. Morrissey, 408 U.S. 471; Gagnon, 411
U.S. 778. As the June 6, 2007, order failed to include a written statement
delineating the evidence relied upon for revocation, we remand for the circuit court
to make factual findings to support its decision to revoke Marshall’s conditional
discharge. As such, we conclude that the circuit court abused its discretion by
failing to delineate findings of fact to support its revocation of Marshall’s
For the foregoing reasons, the order of the Graves Circuit Court is
vacated and this cause is remanded for proceedings not inconsistent with this
MOORE, JUDGE, CONCURS.
CLAYTON, JUDGE, CONCURS IN RESULT ONLY.
BRIEFS AND ORAL ARGUMENT
Kathleen Kallaher Schmidt
Assistant Public Advocate
Department of Public Advocacy
BRIEF FOR APPELLEE:
Attorney General of Kentucky
Samuel J. Floyd, Jr.
Assistant Attorney General
ORAL ARGUMENT FOR
Samuel J. Floyd, Jr.
Assistant Attorney General