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 - Brann - Probation Revocation

Michael Brann v. Commonwealth, COA, 8/21/15, to be published.

 

The Court of Appeals vacated and remanded the Grave’s Circuit Court’s Order revoking Brann’s probation for further consideration of KRS 439.3106. The Kentucky Supreme Court granted discretionary review and remanded the case back to the Court of Appeals for further consideration in light of its decision in Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014). 

 

Brann was charged with violating the conditions of probation as follows: 1) failure to attend treatment for substance abuse; 2) falsifying a police report; and 3) failure to report to probation officer. Brann did not dispute his violations but argued that they were insufficient grounds to revoke his probation under statute. The Court of Appeals found that, “In the instant case, the trial court did not articulate that it had considered KRS 439.3106 in its order revoking Brann’s probation. Thus, we vacate the Graves Circuit Court’s order revoking Brann’s probation and remand for consideration under KRS 439.3106 in light of the Supreme Court of Kentucky’s opinion in Andrews.”

 

Jason Apollo Hart of the Appeals Branch represented Mr. Brann on Appeal and Nathan W. Goodrich preserved this issue for appeal in the circuit court.

KYCOA - Lederer - Probation Revocation

Aaron Lederer v. Commonwealth - COA, 6/12/15, not to be published 

The Court reversed and remanded the trial courts revocation order revoking Mr. Lederer’s five year sentence for failing to report. Mr. Lederer was only a few months away from completing his probation at the time of his revocation. The Court found that the trial court did not follow “the new state of the law” pursuant to Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014), and KRS 439.3106(1) as to whether the violation constitutes a significant risk to prior victims or the community or whether the defendant can be managed in the community. Of particular interest in this case is footnote 3 where the court found the following:

The Commonwealth asserts Lederer did not properly preserve his argument that the trial court failed to make appropriate findings under KRS 439.3106. The record demonstrates that Lederer’s counsel did ask the court to consider sanctions other than revocation and incarceration based on the common nature of the violation and Lederer’s history while on probation. Even assuming this issue was not properly preserved, the trial court’s failure to consider KRS 439.3106 certainly constitutes palpable error in light of the Supreme Court’s explicit directive to do so under Andrews. See  Kentucky Rule of Criminal Procedure (RCr) 10.26.  

(emphasis added). 

The Court is explicitly saying that even if trial counsel does not object to such issues it will not be detrimental to the defendant on appeal. 

Contributed by Jason Apollo Hart 

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 

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