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 

KYCOA - Muchrison - Withdrawal of Counsel for Conflict

Brian Muchrison v. Commonwealth  Kentucky Court of Appeals, to be published (7/8/16).  

Muchrison appealed from a jury conviction where he was sentenced to ten years for the offense of first degree trafficking in a controlled substance and being a first-degree persistent felony offender.  The day (hours really) before trial the Commonwealth provided discovery to Muchrison’s trial attorney that the confidential informant (Suister) with whom Muchrison allegedly conducted the drug transaction with had originally acted with the intention of “helping Christopher Trent with his current charges,” which were the same charges for which Muchrison’s trial counsel was also representing Trent. Trial counsel for Muchrison contacted the Kentucky Bar Association’s Ethics Hotline, and his contact advised him that he had a conflict, but it would be several days before a formal letter memorializing that opinion could be issued. Trial counsel for Mr. Muchrison moved to withdraw because of the conflict and the trial court denied the motion finding that no conflict existed, but nonetheless ordered Muchrison’s trial counsel to no longer represent Trent.

Each judge on the Court of Appeals panel wrote a separate opinion (Judges Combs, Lambert, and Vanmeter). The majority, Judges D. Lambert and Combs found the following when the Court concluded that reversible error occurred when the trial court failed to permit Muchrison’s trial counsel to withdraw:

“The trial court’s ruling diminishes the fact that trial counsel’s original source of information, which he would later need in order to effectively represent

another client, was a confidential communication with his client. Further, the identity of the confidential informant was exactly that—confidential—until such

time as the Commonwealth made it a matter of public record mere hours before trial. The trial court also clearly recognized the potential presence of a conflict of

interest; otherwise the order for trial counsel to discontinue representation of Trent served as a completely moot gesture.

That Muchrison’s trial counsel was able to find a different line of questioning to establish Suister’s motive to fabricate a narcotics transaction is

immaterial. The conflict manifested itself the instant trial counsel was forced by his obligations to Trent to search for such alternative line of questioning. The

ethical dilemma placed on trial counsel by the trial court’s ruling limited his ability to cross-examine a critical witness, and thus deprived him of the right to effective

counsel.”

Judge Combs concurred but wrote a separate opinion which stated: “In addition to its error in failing to allow counsel to withdraw, I would hold that the trial court also committed reversible error in failing to sanction the Commonwealth for its highly dilatory conduct in disclosing (“mere hours” before trial) Suister’s involvement with Trent. Its conduct directly affected the issue of conflict of interest, which caused the reversal of a criminal conviction. Sanctions should have been imposed.”

Judge Vanmeter dissented in a separate opinion arguing that there was no conflict and that a continuance would have been a sufficient remedy to the Commonwealth’s late notice.  

Joshua Hitch represented Mr. Muchrison in Mason Circuit Court.  

Jason Apollo Hart represented Mr. Muchrison on appeal.

*This case is not yet final, the Attorney General’s Office filed an motion for discretionary review in the Kentucky Supreme Court. Linda Horsman is representing Mr. Muchrison on further appellate proceedings.

Trial Tip: Consider filing Giglio motions that cite this case, when and if it becomes final to argue for a reasonable if not immediate disclosure of who the confidential informant is and what they got for working with the Commonwealth.