MILLER (SHAWN) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: DECEMBER 10, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-002027-MR
SHAWN MILLER
v.
APPELLANT
APPEAL FROM MADISON CIRCUIT COURT
HONORABLE WILLIAM G. CLOUSE, JR., JUDGE
ACTION NO. 09-CR-00007
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE: TAYLOR, CHIEF JUDGE; LAMBERT, JUDGE; HENRY,1 SENIOR
JUDGE.
LAMBERT, JUDGE: Shawn Miller appeals from an order of the Madison Circuit
Court revoking his probation. For the following reasons, we affirm.
On May 20, 2009, Miller pled guilty to driving a motor vehicle while
license suspended for driving under the influence, third offense. He received a
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Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
three-year sentence that was set aside for a three-year probationary period. On
June 29, 2009, approximately a month after Miller was probated, the
Commonwealth moved to revoke his probation on the grounds that he violated the
terms and conditions of his probation. The trial court conducted a hearing on
September 17, 2009. During this hearing, the Commonwealth presented proof that
Miller was probated on May 20, 2009, and within one month was arrested for
trafficking in marijuana.
Miller stated to the court that he was charged with trafficking in
marijuana, had entered a plea of guilty to the new charge, and stipulated to the
violation. Miller stated that he knew he had “done wrong” but asked for another
chance because he had a child on the way. The trial court then stated, “[t]hat’s not
the problem. The problem is that you committed an offense within one month of
being out [on probation].” The trial court then explained that Miller had
committed an offense equally bad or worse than his initial offense within one
month of being probated and, accordingly, the trial court was revoking his
probation. The trial court issued a brief order revoking Miller’s probation, which
did not make specific findings of fact supporting the decision to revoke probation.
Miller now appeals as a matter of right.
On appeal, Miller contends that the trial court violated his due process
rights by revoking his probation. In particular, he argues that the trial court was
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required to set forth a written statement for the grounds for revocation as set forth
in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and
KRS 533.050(2).
The Commonwealth counters that the trial court properly exercised its
discretion in revoking Miller’s probation and that the court’s findings were
sufficient pursuant to Commonwealth v. Alleman, 306 S.W.3d 484 (Ky. 2010). As
stated herein, we agree with the Commonwealth and thus affirm the trial court.
Probation revocation hearings “must be conducted in accordance with
minimum requirements of due process of law.” Rasdon v. Commonwealth, 701
S.W.2d 716, 718 (Ky. App. 1986) (citing Gagnon, supra). KRS 533.050(2)
provides 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.”
“Probation revocation is not dependent upon a probationer’s
conviction of a criminal offense.” Commonwealth v. Lopez, 292 S.W.3d 878, 881
(Ky. 2009) (internal citations omitted). “Instead, the Commonwealth need only
prove by a preponderance of the evidence that a probationer has violated the terms
of probation.” Id. (citing Rasdon, 701 S.W.2d at 719). The appellate standard of
review of a decision to revoke a defendant’s probation is whether the trial court
abused its discretion. Lopez, 292 S.W.3d at 881.
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In the instant case, in accordance with KRS 533.050(2), the trial court
gave notice of and conducted a probation revocation hearing, at which Miller and
his counsel were present and were afforded an opportunity to be heard and crossexamine any witnesses. However, Miller argues that the trial court’s written
findings are lacking because they did not set forth the specific grounds for
revocation. In Alleman, 306 S.W.3d at 484-85, the Kentucky Supreme Court held:
We conclude that oral findings and reasons for
revocation as stated by the trial court from the bench at
the conclusion of a revocation hearing satisfy a
probationer’s due process rights, presuming the findings
and reasons support the revocation, when they are
preserved by a reliable means sufficiently complete to
allow the parties and reviewing courts to determine the
facts relied on and the reasons for revoking probation.
Similarly, in the case at bar the trial court’s oral findings and reasons for revoking
Miller’s probation provided a reliable means for meaningful review by this and
other courts. Miller openly admitted he was guilty of trafficking marijuana and,
thus, the trial court did not need to enumerate the specific factual allegations
supporting the charge. The trial court did not abuse its discretion in revoking
Miller’s probation one month after his initial sentence, when he openly admitted
before the court that he committed another offense, and no constitutional violations
occurred.
Therefore, based on the foregoing, we hereby affirm the September
21, 2009, order of the Madison Circuit Court setting aside Miller’s sentence of
probation and imposing a sentence of imprisonment.
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HENRY, SENIOR JUDGE, CONCURS.
TAYLOR, CHIEF JUDGE, CONCURS IN RESULT ONLY.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert Yang
Assistant Public Advocate
Frankfort, Kentucky
Jack Conway
Attorney General
Joshua D. Farley
Assistant Attorney General
Frankfort, Kentucky
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