KYCOA - Lane - Traffic Stop

Lane, Damion Montrece, 2015-CA-001698, Reversing/remanding. 11/4/2016. To be published.

Damion Lane plead guilty in a conditional plea to first-degree possession of a controlled substance, first offense, tampering with physical evidence and disregarding a stop sign.  He was sentenced to five years’ imprisonment, probated.  He appealed the denial of his motion to suppress evidence discovered after a traffic stop.

  

The Court of Appeals held that even though the officer that pulled over Lane had a K-9 unit in his cruiser, the fact that the stop was extended so as to conduct a sniff was violative as the officers had no reasonable articulable suspicion of drug-related activity. 

Analyzing the stop under the standard set out in Commonwealth v. Bucalo, 422 S.W.3d 253 (Ky. 2013), the Court found that the sniff was in no way related to the purpose for which he was stopped, having run a stop sign; did extend the traffic stop, even if for a few seconds; and that there was no reasonable articulable suspicion of drug-related activity to justify the sniff, stated factors of being in a “high-crime neighborhood” and Lane’s fumbling movements while waiting for the officer’s approach and the officer’s “hunch” something was afoot were not sufficient to create suspicion. 

Trial counsel was James Chamberlain, DPA-Hopkinsville. Linda Roberts Horsman of the Appeals Branch represented Mr. Lane on appeal.

KYCOA - Forte - Proof of Serious Injury

Forte,James. 15-CA-00410. Reversing/remanding. 11/4/2016. To be published.

James Forte was found guilty of Robbery First-degree, Burglary First-degree and Assault Second-degree. He was found guilty of all crimes and sentenced to 10 years for both Robbery and Burglary and three years on the Assault, for a total of 13 years. Mr. Forte’s convictions for Robbery and Burglary were affirmed.

The Court of Appeals found palpable error because the prosecution presented insufficient evidence of the “serious physical injury” prong of the assault charge. The only persons who testified regarding the victim’s gunshot wound to the head were the victim and his companion. The victim said after he was shot, he suffered headaches “off and on” and had a small scar. The jury heard no evidence “establishing the nature and severity of the gunshot wound, how much blood was lost, the nature of the medical treatment, the severity of Bailey’s headaches, the time it took to recover, how much, if any, additional treatment Bailey received, or how much time, if any, Bailey took off from work in order to recover.” Thus, because it did not present any medical evidence was presented, the prosecution did not meet the “exacting level of proof” required by McDaniel v. Commonwealth, 415 S.W.3d 643, 660 (Ky. 2013).

Conflict trial counsel was Craig Newbern, DPA-Paducah. Julia K. Pearson of the Appeals Branch represented Mr. Forte on appeal.

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 

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