GIBSON (DELLARD LEE) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: NOVEMBER 22, 2013; 10:00 A.M. TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2012-CA-002104-MR DELLARD LEE GIBSON v. APPELLANT APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE MARTIN F. MCDONALD, JUDGE ACTION NO. 10-CR-000249 COMMONWEALTH OF KENTUCKY APPELLEE OPINION REVERSING AND REMANDING ** ** ** ** ** BEFORE: CAPERTON, LAMBERT AND MOORE, JUDGES. LAMBERT, JUDGE: Dellard Lee Gibson appeals from a Jefferson Circuit Court order revoking probation and executing sentence. Gibson entered a plea of guilty to second-degree robbery and was sentenced to serve ten years. On June 6, 2011, he was granted shock probation for a period of five years. On September 13, 2012, the Commonwealth filed a motion to revoke his probation, attaching a special supervision report from his probation officer. Proceedings on the matter were held on November 7, 2012. Although the trial court refused to hold a formal revocation hearing, the probation officer was sworn in as a witness in order to affirm the trial court s prior recitation of the case history, and an officer who was allegedly assaulted by Gibson was introduced to the court. The Commonwealth never called or questioned any witnesses, and defense counsel was not permitted to cross-examine or to call any witnesses. The trial court entered an order revoking probation. This appeal by Gibson followed. Gibson argues that the proceedings failed to comply with the minimal requirements of due process, which include the opportunity to be heard in person and to present witnesses and documentary evidence and the right to confront and cross-examine adverse witnesses[.] Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2603, 33 L.Ed.2d 484 (1972) (made applicable to probation revocation by Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1759-60, 36 L.Ed.2d 656 (1973)). The Commonwealth agrees. Accordingly, we reverse the order revoking Gibson s probation and remand for a new probation revocation hearing. ALL CONCUR. BRIEF FOR APPELLANT: BRIEF FOR APPELLEE: Cicely J. Lambert Assistant Appellate Defender Louisville, Kentucky Jack Conway Attorney General of Kentucky Wm. Robert Long, Jr. Assistant Attorney General Frankfort, Kentucky -2-
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