COA - McClure - Probation Revocation

McClure, Brian v. Commonwealth - CoA, 03/13/15, REMANDING, to be published.  

McClure entered a plea of guilty to a 5 year probated sentence in December 2012.  Less than a year later, McClure’s probation and parole officer petitioned the trial court to revoke McClure’s probation.  The probation officer testified that on September 18, 2013, McClure tested positive for Suboxone, however, the probation officer did not move to revoke at that time.  A month later, McClure was caught with an empty syringe after he was told to pull his pants down after a drug test showed an abnormal temperature.  Based upon the attempt to alter a drug screen, the trial court revoked Mr. McClure’s probation.    

The Court of Appeals found that the statute requires a trial court to consider “whether a probationer’s failure to abide by a condition poses a significant risk to prior victims or the community at large” prior to revocation.  However, the Court of Appeals stated that “Neither KRS 439.3106 nor Andrews (Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014)) require anything more than a finding to this effect supported by the evidence of record.  The trial court complied with this requirement and it owed McClure no further explanation.  The Court of Appeals did find that “while evidence existed in the record to support whether McClure could be managed within the community”, the trial court failed to make a finding on this essential second element.  The Court of Appeals held that “[u]nder the analysis in Andrews, the trial court’s decision to revoke, in the absence of this finding, constituted an abuse of discretion, and the matter must be remanded."

The Court of Appeals concluded, “On remand, the trial court shall enter express findings as to both elements of KRS 439.3106(1). Per Andrews, once the trial court has fully considered and found as to these elements, its analysis should produce a conclusion concerning whether revocation or a lesser sanction is most appropriate, thus serving both the spirit of, and the intent behind, KRS 439.3106." 

Roy A. Durham II of the Appeals Branch represented Mr. McClure on appeal.  Lisa Whisman of the Stanton office represented Mr. McClure in the trial court.

Contributed by Roy Durham 

KY COA - Garcia - Man 2nd Instruction

Garcia v. Commonwealth, 2012-SC-01020, Not Published; Affirmed in Part; Reversed in Part

A complicity instruction which read that the jury could find Brittney Garcia guilty of Manslaughter Second degree if she possessed the same mens rea as her co-defendant was improper. The instruction should have told the jury to find a mens rea for Garcia of the kind of culpability required for a Manslaughter Second conviction. ON retrial, the combination principal-accomplice instruction should read, in part:

That at the time Angel Tucker was killed, Defendant (Garcia) intentionally breached her legal duty to protect Angel Tucker by failing to prevent Nickolas Staples’ use of the blunt force which killed Angel Tucker;

(4) That, regardless of whether Defendant (Garcia) intended for Angel to be killed, she at least intended that Nickolas Staples seriously physically injure her…

Roy Durham of the Appeals Branch represented Ms. Garcia on appeal.  

Contributed by Julia Pearson

COA - Hack - Search without Warrant

Donna Hack- CoA, 9/12/14, to be published. 

The Court that an uncorroborated tip was not sufficiently reliable to merit invasion of the curtilage at 2 a.m. without a warrant. Knock and talk was proper when police saw fire in the yard when a county burn ban was in effect. Even though officers saw a man run into a garage, in light of the totality of the circumstances, it was not reasonable for them to follow him in belief that contraband was in danger of being destroyed. The exigent circumstance of immediate escape was also not possible. Even if they have reasonable, articulable suspicion that criminal activity is afoot, the police may not lawfully enter a private residence without a warrant in order to initiate a Terry stop.

 Julia K. Pearson of the Appeals Branch represented Ms. Hack on appeal; Nathan Goodrich of the Murray office represented Ms. Hack in the trial court.

Contributed by Roy Durham