KYCOA - Grundy - Probation Revocation, CR 60.02

Allen D. Grundy v. Commonwealth, 2011-CA-001852-MR 

Rendered May 24, 2013.  Designated To Be Published (Not yet final). 

Grundy appealed the denial of a CR 60.02 motion seeking to vacate the order revoking his probation.  Judgment was entered on December 17, 1997 convicting Grundy and sentencing him to one year imprisonment probated for five.  On October 16, 2002 the Commonwealth filed a motion to revoke because he picked up new charges.  A hearing was not held until December 18, 2002.  The trial court revoked his probation.  Because the five year period had ended the day before, the Court of Appeals found the trial court had lost jurisdiction to revoke Grundy’s probation by that time.  KRS 533.020(1) is clear that probation must be revoked prior to the expiration or termination of the period of probation.  The Commonwealth argued that eight years is an unreasonable amount of time in which to file a CR 60.02 motion.  However, the Court of Appeals found that regardless of the amount of time that had passed, imprisonment based on a void order is a manifest injustice.

Contributed by Brandon Jewell 

KYCOA - Canada - Directed Verdict Failure to Register

Norman Allen Canada v. Commonwealth 

Directed Verdict should have been granted when the Commonwealth failed to prove the defendant knowingly failed to register as a sex offender. Mr. Canada advised his caseworker that he needed to move but was unable to contact her to approve his new residence prior to moving. 

Carolyn Clark-Cox did an excellent job arguing for directed verdict in the circuit court.

Contributed by John Landon

KYCOA - Davis - Expungement

Commonwealth v. Davis, 2012 CA 933, TO BE PUBLISHED

The Court of Appeals held that if civil lawsuit is ongoing, that is related to a criminal charge, then even if the criminal charge is dismissed with prejudice and can otherwise be expunged, the trial court cannot issue such an order.  Basically, as long as there is a “proceeding,” be it civil or criminal, that is related to the charges, the charges cannot be expunged.  

Contributed by John Landon

KY COA - Young - Adoption

(Michael and Janie) Young v. Commonwealth, 2011-CA-000956  To be published.

The Court of Appeals vacated the Youngs’ convictions for Theft by Unlawful Taking Over $10,000 holding that because you cannot contract for the adoption of a child, there was no legal contract. 

The Youngs received money from both a couple hoping to adopt the Youngs’ unborn child, as well as receiving money from an adoption agency.  The Court of Appeals held no crime was committed. The Youngs were represented by J. Christopher Bowlin in the trial court and represented by Karen Maurer and Roy Durham on appeal. 

Contributed by Jason Apollo Hart 

The Biological Evidence Preservation Handbook: Best Practices for Evidence Handlers

by the National Institute of Standards and Technology and the National Institute of Justice 

The Biological Evidence Preservation Handbook: Best Practices for Evidence Handlers, created by the Technical Working Group on Biological Evidence Preservation, offers guidance for individuals involved in the collection, examination, tracking, packaging, storing and disposition of biological evidence.

This may include crime scene technicians, law enforcement officers, healthcare professionals, forensic scientists, forensic laboratory managers, evidence supervisors, property managers, storage facility personnel, lawyers, testifying experts, court staff members and anyone else who may come in contact with biological evidence. 

While many of the recommendations relate to the physical storage, preservation, and tracking of evidence at the storage facility, this handbook also covers the transfer of the material between the storage facility and other locations and discusses how the evidence should be handled at these other locations. 

Full text:

• Adobe Acrobat File

KYSC - Meskimen - Statements & Hair Comparison

In Meskimen v. Commonwealth, 2011-SC-000709-MR (rendered 4/25/13) (to be published)

The Court considered Meskimen’s motion to suppress a series of pre-trial statements, and held that the defendant’s request to be taken to the hospital during the initial questioning did not clearly and unequivocally invoke his right to remain silent.  Nor was the defendant “so intoxicated as to reach the point of mania or give an unreliable statement,” such that the Court would consider his statement involuntary.  Nor did the Court consider the actions of the police in refusing to take the defendant to the hospital, even though his skull was fractured so badly as to require four days of hospitalization, two of which were in the ICU, to be coercive.

In addition, the Court did not consider the failure of the trial judge to hold a Daubert hearing on the reliability of hair comparison evidence to be an error in this case, relying on its earlier holding in Johnson v. Commonwealth, 12 S.W.3d 258, 261 (Ky. 1999).  The Court cautioned, however, “[E]ven though case law may be in acceptance of a certain method of analysis, it is the trial court's duty to ensure that method is supported by scientific findings, or at least not seriously questioned by recent reputable scientific findings, before taking judicial notice of its acceptability.”

The issues were preserved by Shannon Brooks-English, of the Fayette County Trial Office.  Tom Ransdell was the appellate attorney.

Contributed by Kathleen Schmidt 

NACDL launches resource for Resisting and Challenging Excessive Sentences

From NACDL Press Release:

NACDL is pleased to offer, as a resource for its members and as a service to the public, a collection of individual downloadable documents that summarize for each U.S. state the key doctrines and leading court rulings setting forth constitutional and statutory limits on lengthy imprisonment terms and other extreme (non-capital) sentences. The resource – Excessive Sentencing: NACDL’s Proportionality Litigation Project — is available at this link

NACDL President Steven D. Benjamin said: “The United States now leads the world in incarceration, with more than 2.2 million people behind bars, as a result of overcriminalization and excessive sentencing. NACDL’s Excessive Sentencing Project being launched today is the type of resource for practitioners, judges, policy advocates, and the general public that embodies NACDL’s tireless work to fulfill its mission. The tools provided in this expansive online resource will be deployed to improve America’s criminal justice system and will result in more humane, rational and proportional sentencing of those convicted of a crime.”

link to Kentucky resources

Floyd County Times - Greg Stumbo on DPA SW Program and other innovations

A legislative perspective

Kentucky has gotten a lot of attention over the years when it comes to finding innovative ways to govern. Our education reforms of the 1990s were hailed as national models, for example, and we are the only state to permanently dedicate half of our annual tobacco settlement payments to agriculture, a move that has played a key role in the industry’s record sales in recent years.

Two other programs took a step into the national spotlight early this month when a Harvard University-based center included them among the 25 that will compete this fall for its Innovations in American Government Award.

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As its name implies, the Department of Public Advocacy’s alternative sentencing social worker program pairs a social worker with public defenders to help provide treatment plans for those charged with lower level drug charges. 

The General Assembly authorized this as a pilot program in 2006, and found it to be an immediate success in helping those arrested escape the cycle of drugs. Of the 229 defendants served by the four social workers, only eight were re-arrested.

Similar success has been seen since the program went statewide in 2009. According to studies by the University of Louisville and the University of Kentucky, there is a double boost behind these programs. One study found that each participating social worker has saved more than $100,000 in incarceration costs, while the other showed a sizeable drop in the number of inmates who returned to prison if they had received substance abuse treatment. As the state’s revenues continue to improve, we will have to see if we can expand this nationally recognized program’s reach even more.

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The General Assembly will always have to be vigilant when it comes to curbing illegal drug use – or tackling any other persistent problem – but we have come a long way in a relatively short amount of time. As we have shown over the years, and as organizations like Harvard’s center have found, we are not afraid to be innovative, and that is why other states are increasingly looking to Kentucky for solutions that work.

Read more: Floyd County Times (KY) - A legislative perspective