REES (JOHN) VS. OTTMAN (DANIEL), ET AL.Annotate this Case
RENDERED: AUGUST 15, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 05-CR-000089
HON. JUDITH MCDONALD BURKMAN;
AND ROB EGGERT
** ** ** ** **
BEFORE: FORMTEXT CLAYTON, MOORE, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: John Rees bring this appeal from a July 18, 2007, Order of
the Jefferson Circuit Court finding Rees in contempt. We affirm.
As a juvenile, Daniel Ottman pleaded guilty to assault in the first
degree and was subsequently sentenced to ten-years’ imprisonment. Upon
reaching the age of eighteen, Ottman returned to the trial court for resentencing
pursuant to Kentucky Revised Statutes (KRS) 640.030. Therein, the court
sentenced Ottman to carry out the remainder of his ten-year sentence of
Ottman subsequently filed a motion for shock probation, and on June
6, 2007, the trial court entered an order granting that motion. However, on the
following day, the court set aside the order expressing concern that Ottman was
considered a violent offender under KRS 439.3401 and, therefore, ineligible for
probation or shock probation.1 After further consideration, the court reinstated
Ottman’s shock probation by order entered June 19, 2007, and specifically
Following the Court’s setting aside of its Order
Granting Shock Probation, the Court conferred with the
Commonwealth and defense counsel. Both counsel agree
that the current state of the law in Kentucky with respect
to youthful offenders convicted of felonies in the Circuit
Court allows such persons to seek and receive probation
under KRS 640.030(2)(a).
This issue is currently before the Supreme Court
(Commonwealth v. Hickman, 2006-SC-000332-DG).2
Rees, who is Commissioner of the Department of Corrections, then
sent a letter to the trial court on June 21, 2007, stating again his belief that Ottman
Upon receipt of the court order, John Rees immediately contacted the circuit judge expressing
his belief that applicable law did not permit the release of Daniel Ottman by shock probation.
Commonwealth v. Hickman, 2006-SC-000332-DG is still pending before the Supreme Court at
the time of this opinion. We note that the Court of Appeals, in Hickman v. Commonwealth,
2005-CA-000640-MR, held that a youthful offender classified as violent offenders under
Kentucky Revised Statutes (KRS) 439.4301 was eligible to receive probation under KRS
was ineligible for shock probation under the law of Kentucky. Rees further stated
that he would not release Ottman despite the trial court’s order of June 19, 2007.
Upon receipt of the letter from Rees, the circuit judge immediately
ordered that Ottman be transported to a hearing in circuit court on June 25, 2007.
At the hearing, the court ordered his release from custody.
Upon Ottman’s motion for Rees to show cause why he should not be
held in contempt, the trial court conducted a contempt hearing on July 13, 2007.
At the conclusion, the court found Rees in contempt of court for refusing to obey
the June 19, 2007, order and fined him $500 plus the costs of Ottman’s counsel.
Rees’s motion to alter, amend, or vacate was denied by the court. This appeal
Rees does not argue that his conduct was not contemptuous. Rather,
Rees contends that he cannot be found in contempt for failing to follow the court’s
June 19, 2007, order because the order was void. Specifically, Rees alleges that
the trial court’s June 19, 2007, order was void because the court lacked jurisdiction
to grant Ottman shock probation. For the reasons hereinafter stated, we disagree.
Generally, a void judgment has no effect and may be disregarded.
Gullet v. Gullet, 992 S.W.2d 866 (Ky.App. 1999). And, it is well-established that
a person may not be held in contempt for failure to comply with a void order.
Davis v. City of Bowling Green, 289 S.W.2d 506 (Ky. 1956).
KRS 439.265(4) provides that a violent offender may not receive
shock probation. Rees correctly points out that Ottman was classified as a violent
offender under KRS 439.3401(1)(c) due to his conviction for first-degree assault
causing serious injury. We, however, do not believe that KRS 439.265(4) is
controlling. We are of the opinion that Ottman was eligible to receive probation
and shock probation under KRS 640.030. KRS 640.030 governs the sentencing of
youthful offenders who have been convicted or plead guilty to a felony offense.
KRS 640.030(2) provides in relevant part:
If an individual sentenced as a youthful offender attains
the age of eighteen (18) prior to the expiration of his
sentence, and has not been probated or released on
parole, that individual shall be returned to the sentencing
court. At that time, the sentencing court shall make one
(1) of the following determinations:
(a) Whether the youthful offender shall be placed on
probation or conditional discharge;
(b) Whether the youthful offender shall be returned to
the Department of Juvenile Justice to complete a
treatment program . . . . At the conclusion of the
treatment program, the individual shall be returned to the
sentencing court for a determination under paragraph (a)
or (c) of this subsection; or
(c) Whether the youthful offender shall be incarcerated
in an institution operated by the Department of
We believe KRS 640.030 was intended to create an exception for
youthful offenders to the general sentencing guidelines. Thus, Ottman’s status as a
youthful offender made him eligible for probation at the time of his resentencing
hearing under KRS 640.030. As Ottman was eligible for probation under KRS
640.030, we believe he was clearly eligible for shock probation under the statute.
Cf. Porter v. Com., 869 S.W.2d 48 (Ky.App. 1993)(holding that KRS 532.045
which prohibits “probation” should be interpreted as also prohibiting shock
probation). Thus, we believe that KRS 640.030(2) entitles Ottman to be
considered for shock probation.
In sum, we hold that the circuit court acted within its jurisdiction and
that the order reinstating Ottman’s shock probation was not void.3 As a result,
Rees was properly held in contempt for his intentional and willful refusal to obey
the court’s order.
For the foregoing reasons, the Order of the Jefferson Circuit Court is
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Justice and Public Safety Cabinet
Office of Legal Services
Michael L. Goodwin
This holding should not be misconstrued to support the conclusion that the June 19, 2007, order
reinstating Ottman’s shock probation would be void if Ottman were ineligible for shock
probation under current statutory law.