Tuesday, October 11, 2016

KYSC - Tapp - Extending Probation

9/22/2016 Commonwealth v. Tapp, 2014-SC-000607-DG To Be Published

On February 2, 2012, Tapp received a one-year sentence for multiple drug related offenses which was probated until February 2, 2013. On January 28, 2013, the Commonwealth’s attorney filed a motion to review diversion (he was actually on probation). The motion cited numerous violations for driving on a suspended license. Tapp was subsequently arrested pursuant to a bench warrant executed the evening of January 31, 2013. On February 7, 2013, Tapp was brought before the circuit court and a probation revocation hearing was set for February 12, 2013. At the hearing, Tapp’s counsel, citing Kentucky Revised Statute (KRS) 533.020(4) and Conrad v. Evridge, 315 S.W.3d 313 (Ky. 2010), made a motion to dismiss for lack of jurisdiction. The circuit court denied the motion, revoked Tapp’s probation, and ordered him to serve his original sentence.

The Kentucky Court of Appeals issued an opinion on 9/5/2014 vacating the trial court’s order revoking Tapp’s probation. The Commonwealth requested discretionary review in the Kentucky Supreme Court which was granted. And the Kentucky Supreme Court held the following:

Justice Keller wrote in the majority Opinion (joined by Chief Judge Minton, and Justices Hughes, and Noble),  that  “We agree with the trial court that a warrant remains pending beyond the time of service. However, we disagree that it remains pending until disposition of the matter for which it was issued.” In the Opinion the Court detailed the method and circumstances for which probation may be extended without a hearing.

“However, a court cannot arbitrarily extend the probationary period. A
probationer is entitled to due process protections, one of which is a "duly
entered court order." KRS 533.020(4). In this instance, a duly entered court
order is one supported by probable cause, which requires "facts and
circumstances 'sufficient to warrant a prudent man in believing that the
[probationer] had committed or was committing an offense."' Gerstein v. Pugh,
420 U.S. 103, 111-12 (1975), citing Beck v. Ohio, 379 U.S. 89, 91 (1964).
Furthermore, because such an extension is likely to occur without a hearing,
due process demands that any extension be of limited duration. Therefore, the
trial court may only extend the period of probation without a hearing until its
next available criminal docket or as soon as practical thereafter.”

The Court held that had the trial court extended Tapp’s probationary period at this first post-arrest appearance the court would have retained jurisdiction. However the Court did not in Tapp’s case, and therefore it lost jurisdiction.

Justice Wright authored the dissent and was joined by Justices Cunningham and Venters. Essentially arguing that there are possibilities for absurd and unjust results under the majority Opinion.

The Kentucky Supreme Court held that the Court of Appeals Opinion was affirmed and vacated Tapp’s probation revocation order. Tapp was represented by Steven Hughes in the trial court and represented by Jason Apollo Hart on appeal in both appellate courts. Sam Potter was assigned the case while awaiting an Opinion after Jason Apollo Hart transferred to Capital Trials East in Lexington, Mr. Potter is therefore noted as counsel of record on the Opinion.

Practice Tip:
Tapp (which relied heavily in Conrad supra) is the first case to explicitly limit the holding in Whitcomb v. Commonwealth, 424 S.W.3d 417 (Ky. 2014). Whitcomb held “In summation, we hold that the issuance of a warrant for a probation violation will toll the period of probation preventing the probationer from being automatically discharged pursuant to KRS 533.020(4). The warrant, however, must be issued before the expiration of the period of probation.” Id. at 420. Now, a key fact to examine when reviewing probation revocation cases is whether or not the warrant issued was “pending” before the probationary period expired and whether it was “extended” by the trial court. If the trial court does not extend the probationary period as described above, then it no longer has jurisdiction in such instances. If the trial court’s delay in setting the revocation hearing is the reason for the expiration of the probationary period, then the motion to revoke should be dismissed and the client should be discharged from probation. 

Contributed by Jason Apollo Hart