KY COA July 20 - Southwood - Probation Revocation

Southwood v. Commonwealth, 2011-CA-001277-MR (Decided July 20, 2012; To be published)

The Court of Appeals found that there was no abuse of discretion where the trial court did not make a specific finding of fact that the defendant could not be appropriately managed in the community.

Leslie Southwood pled guilty to arson in the second degree.  About a month later he was sentenced to twenty years probated for five years. A condition was imposed that Southwood’s probation included that he remain in the area of supervision within Breathitt County and that he would commit no new offense while on probation.  Southwood was later arrested in Perry County and charged with possession of a controlled substance in the first degree, carrying a concealed deadly weapon, and operating a motor vehicle under the influence.

At the probation revocation hearing, the only witnessed called was the probation officer. The probation officer testified that Southwood was not supposed to leave the county except for emergency medical treatment. The court was also made aware of a pending assault charge against Southwood  in Breathitt District Court for allegedly assaulting his mother.  It was further suggested that he may have been involved in a shooting incident involving his brother.  The trial court revoked Southwood’s probation.

Southwood filed a motion to alter, amend or vacate the order pursuant to KRS. 439.3106, pursuant to a statute that had been enacted on June 8, 2011, two days prior to his revocation hearing.  Southwood argued that the statute required the court to make a finding that he could not “be appropriately managed in the community.” The trial court found that they very nature of the pending charges in Perry County were sufficient to revoke his probation and deny the motion.

The Court of Appeals Affirmed, citing KRS 439.3106(2) discussing severity of the violation behavior and risk of future criminal behavior. The Court further noted that Commonwealth v. Alleman, 306 S.W.3d 484, 488 (Ky. 2010) was applicable to the instant case, where the sole testimony introduced was that the defendant absconded.

Contributed by Jason Apollo Hart

Kentucky Pretrial Services Legislative Impact Report

Kentucky Pretrial Services recently published, Report on Impact of House Bill 463: Outcomes, Challenges and Recommendations. The purpose of the report is to measure the impact of HB 463, which implemented sweeping changes to many aspects of the criminal justice system in Kentucky. The report examined data a year prior and a year after implementation and found that as the number of monitored conditional releases went up, pretrial failures decreased. 

Justice Department to review forensic evidence used in thousands of cases - Washington Post

The Justice Department and the FBI have launched a review of thousands of criminal cases to determine whether any defendants were wrongly convicted or deserve a new trial because of flawed forensic evidence, officials said Tuesday.

The undertaking is the largest post-conviction review ever done by the FBI. It will include cases conducted by all FBI Laboratory hair and fiber examiners since at least 1985 and may reach earlier if records are available, people familiar with the process said. Such FBI examinations have taken place in federal and local cases across the country, often in violent crimes, such as rape, murder and robbery.

The review comes after The Washington Post reported in April that Justice Department officials had known for years that flawed forensic work might have led to the convictions of potentially innocent people but had not performed a thorough review of the cases. In addition, prosecutors did not notify defendants or their attorneys even in many cases they knew were troubled.

Read the complete story

KY COA July 6 - Denny - IAC of PC Counsel

Denny v. Commonwealth, 2011-CA-1232 (Decided July 6, 2012; unpublished)

             Brad Denny pled guilty to murder and was sentenced to LIFE in prison.  He filed a pro se RCr 11.42 motion which the circuit court denied without holding an evidentiary hearing.  His case was reversed by the Court of Appeals and remanded for a hearing.  The circuit court held a hearing and again denied his RCr 11.42 motion. 

In the instant action, Denny claimed in a CR 60.02 motion that he received ineffective assistance of post-conviction counsel due to failure to raise substantial issues in the RCr 11.42 motion.  The Court of Appeals denied the claim, stating that he should have raised the claims in his RCr 11.42 action.  While the Court did give lip service to the United States Supreme Court decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012), it ultimately refused his claim based on the holding of the Kentucky Supreme Court in Hollon v. Commonwealth, 334 S.W.3d 431 (Ky. 2010) that Kentucky has held that there cannot be a valid claim for ineffective assistance of post-conviction counsel because by Kentucky law, he has no right to the assistance of post-conviction counsel.

In essence, as the Court of Appeals stated, “Because Denny’s ineffective assistance of trial counsel claims could have been asserted in his RCr 11.42 motion, the law in Kentucky states that his CR 60.02 motion fails.”

In a dissent, Justice Stumbo stated, “I would reverse and remand for appointment of counsel so that the trial court can determine whether Appellant can demonstrate ‘that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.’”  Martinez, 132 S.Ct. at 1318.

 Contributed by Karen Maurer

Practice Advisory for Criminal Defense Attorneys: Certain Criminal Offenses May Bar Persons from Applying for the New Deferred Action Status Program Announced by President Obama

From: Immigrant Legal Resource Center – San Francisco, California

On June 15, 2012, the Obama Administration announced that it would not deport certain undocumented persons who entered the U.S. as children.

The Department of Homeland Security (DHS) has offered some initial guidance on the type of criminal offenses that will make a person ineligible to be granted deferred action.

Deferred action means that, even though the individual is undocumented and subject to deportation, the government agrees to defer any actions to remove them.

So, in essence, even though deferred action does not provide a pathway to getting lawful permanent resident status (a greencard) or citizenship, it will allow young people to remain in the U.S. and apply for a work authorization document from the government that entitles them to legally work in the U.S.

This advisory for criminal defense counsel outlines defense strategies to preserve a client’s possible eligibility for deferred action.

Download here

KY COA June 22 - Cozzolino - Directed Verdict in DUI case

THOMAS GEORGE COZZOLINO V. COMMONWEALTH, 2011-CA-000656-DG,

To-be-published, June 22, 2012,

Vacating the Jefferson Circuit Court’s reversal of a directed verdict granted by the Jefferson District Court. 

            Cozzolino was tried for the offense of DUI in the Jefferson District Court.  He made a mid-trial objection to evidence obtained by police following a Miranda violation.  The District Court held a suppression hearing, and suppressed much of the prosecution’s evidence.  The prosecution continued with its case-in-chief, after which, the District Court granted a directed verdict of acquittal for Cozzolino.  The Commonwealth appealed the acquittal to the Jefferson Circuit Court, which reversed the District Court’s judgment that the remaining evidence presented by the prosecutor at trial was insufficient to meet the standard for a directed verdict.  The Circuit Court remanded the case to the District Court for another trial, reasoning that double jeopardy did not apply because the first trial had been prematurely concluded as a result of the defendant’s own motion.

            The Court of Appeals vacated the Circuit Court’s decision.  Quoting from Derry v. Commonwealth, 274 S.W.3d 439, 444 (Ky. 2008), and United States v. Scott, 437 U.S. 82, 91 (1978), the Court held the granting of a directed verdict motion in favor of a defendant in a criminal case terminates the prosecution, and a second trial following an appeal by the Commonwealth would violated the Double Jeopardy Clause.  “The district court weighed the evidence presented by the Commonwealth and found it insufficient to convict.  The dismissal was not based on a mistrial; it was related to Cozzolino’s factual guilt or innocence.  …  [W]e find that Double Jeopardy prevents Cozzolino from being tried again for DUI.”

Contributed by Tom Ransdell