WOODARD (SANTANA) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 17, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000213-MR
SANTANA WOODARD
v.
APPELLANT
APPEAL FROM HART CIRCUIT COURT
HONORABLE CHARLES C. SIMMS III, JUDGE
ACTION NO. 09-CR-00077
COMMONWEALTH OF KENTUCKY
AND
NO. 2010-CA-000230-MR
SANTANA WOODARD
v.
APPELLEE
APPELLANT
APPEAL FROM HART CIRCUIT COURT
HONORABLE CHARLES C. SIMMS III, JUDGE
ACTION NO. 09-CR-00071
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: CLAYTON AND NICKELL, JUDGES; ISAAC,1 SENIOR JUDGE.
CLAYTON, JUDGE: This is an appeal from Appellant, Santana Woodard’s,
revocation of probation. For the reasons that follow, we reverse the decision of the
trial court.
BACKGROUND INFORMATION
Woodard was sentenced to five (5) years in prison on July 21, 2009,
in Hart Circuit Court for complicity to second-degree criminal mischief, complicity
to theft by unlawful taking over 300 dollars and complicity to third-degree
burglary. He was also sentenced to five (5) years of imprisonment for complicity
to possession of a forged instrument in another court (also in Hart County) on that
same day. The sentences were to run concurrently with one another as well as with
another sentence Woodard was set to receive in Barren Circuit Court.
Woodard’s Hart County sentences were probated for five (5) years
under the following conditions of probation:
1. Avoid injurious or vicious habits, including, but not
limited to, abuse of alcohol, drugs and other substances;
2. Good behavior and no substantial violations of the
law;
1
Senior Judge Sheila R. Isaac 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.
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3. Support dependents and meet other family
obligations;
4. Report to probation officer as directed;
5. Comply with all requirements and requests of
probation officer, including random alcohol/drug testing;
6. Enroll in and complete counseling program designed
to address substance abuse problem, as arranged for by
probation officer;
7. Comply with all financial obligations imposed
through Final Judgment of Conviction;
8. Pay restitution . . . for the benefit of Discount
Tobacco. . . and IGA . . . ;
9. Pay restitution . . . for the benefit of the Log Cabin
Store upon motion by Commonwealth;
10. . . . complete the 4 to 6 month in patient drug
rehabilitation program through the Salvation Army, upon
completion of [which] . . . enter and complete the Barren
County Drug Court program.
Woodard completed the inpatient drug rehabilitation program and asked
Thomas LaFollette, a probation and parole officer, to transfer from Barren County
Drug Court to Warren County Drug Court. LaFollette denied Woodard’s request
and Woodard became angry and upset. On December 4, 2009, LaFollette filed a
motion to have Woodard’s probation revoked with the Hart Circuit Court. As part
of LaFollette’s motion, he stated that Woodard had become angry over the
telephone on November18, 2009, after hearing that he was denied his request for a
change in his Drug Court program location.
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LaFollette also attached an affidavit of Candy Reed-Barton which set forth
that she had informed Woodard over the phone that the court had ordered him to
complete the Barren/Metcalfe Drug Court program and that she could not transfer
any part of his requirements, including drug testing to Warren County. ReedBarton also stated that Woodard became very hostile over the phone and started
using profanity toward her. She also stated that Woodard and family members
came to her Drug Court office and continued profanity when speaking about
LaFollette.
Prior to the motion for revocation, Woodard’s probation supervision had
been transferred to Warren County as he lived and worked there. The trial court
revoked Woodard’s probation on January 19, 2010, finding that he had failed to
complete the Drug Court program as ordered. On February 2, 2010, the trial court
entered a second order stating that Woodard’s probation was also revoked because
he had violated the “good behavior” condition of his probation.
This appeal followed.
STANDARD OF REVIEW
In reviewing probation hearings, we review the trial court’s findings
for abuse of discretion. Tiryung v. Com., 717 S.W.2d 503, 504 (Ky. App. 1986).
Abuse of discretion occurs when “the trial judge’s decision was arbitrary,
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unreasonable, unfair, or unsupported by sound legal principles.” Com. v. English,
993 S.W.2d 941, 945 (Ky. 1999).
DISCUSSION
Woodard presents three arguments. He argues that the trial court
abused its discretion when it revoked his probation for failing to complete the Drug
Court program requirements. Second, that the court’s revocation pursuant to the
“good behavior” condition of probation was arbitrary, unreasonable, unfair and
unsupported by sound legal principles. His third argument is that his due process
rights were violated when the trial court did not allow him to present a witness or
give him written notice of his alleged violations. In Morrissey v. Brewer, 408 U.S.
471-72, 92 S.Ct. 2593, 2596, 33 L.Ed.2d 484 (1972), the U.S. Supreme Court held
that, in parole revocation matters, due process requires the following:
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 . . . ;
e) a ‘neutral and detached’ hearing body . . . ; and,
f) a written statement by the factfinders as to the
evidence relied on and reasons for revoking parole.
In Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1760, 36
L.Ed.2d 656 (1973), the Court held that these requirements applied in revoking a
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defendant’s probation as well. See also A.C. v. Com., 314 S.W.3d 319 (Ky. App.
2010). Woodard first contends that the trial court abused its discretion when it
revoked his probation because he was completing the Drug Court program
requirements. He asserts that he was being tested regularly, had never tested
positive for drugs, had never received any sanctions from the Drug Court program,
was completing homework, step-work, NA and AA work, going to life skills
counseling and attending regular NA and AA meetings as well as maintaining
stable employment. Thus, the trial court abused its discretion in finding that
Woodard was not completing the Drug Court program as ordered.
The Commonwealth argues that the trial court’s second order, which
found in written findings that Woodard had violated his probation due to his failure
to have “good behavior”, was not an abuse of discretion. Woodard correctly
argues that the trial court had lost jurisdiction over his action at the time of the
entry of its second order and could not alter, amend or vacate its original order
revoking probation. In Com. v. Gross, 936 S.W.2d 85, 87 (Ky. 1996), the court,
citing Silverburg v Com., 587 S.W.2d 241, 244 (Ky. 1979), held that “[w]here the
Criminal Rules do not provide a time, the Civil Rules shall apply. [Kentucky
Rules of Criminal Procedure] (RCr) 1.10. [Kentucky Rules of Civil Procedure]
(CR) 59.05 provides that a judgment may be altered, amended or vacated within
ten days after the entry of the final judgment.” In the present case, more than ten
days had elapsed between the trial court’s original entry of its order revoking and
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its “amended” one. Thus, the amended order must be voided. Woodard’s
remaining arguments are moot.
Having found the trial court abused its discretion in revoking
Woodard’s probation, we reverse the decision of the trial court and remand for
proceedings consistent with this opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Brandon Neil Jewell
Assistant Public Advocate
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
David W. Barr
Assistant Attorney General
Frankfort, Kentucky
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