KY COA July 20 - Southwood - Probation Revocation

Southwood v. Commonwealth, 2011-CA-001277-MR (Decided July 20, 2012; To be published)

The Court of Appeals found that there was no abuse of discretion where the trial court did not make a specific finding of fact that the defendant could not be appropriately managed in the community.

Leslie Southwood pled guilty to arson in the second degree.  About a month later he was sentenced to twenty years probated for five years. A condition was imposed that Southwood’s probation included that he remain in the area of supervision within Breathitt County and that he would commit no new offense while on probation.  Southwood was later arrested in Perry County and charged with possession of a controlled substance in the first degree, carrying a concealed deadly weapon, and operating a motor vehicle under the influence.

At the probation revocation hearing, the only witnessed called was the probation officer. The probation officer testified that Southwood was not supposed to leave the county except for emergency medical treatment. The court was also made aware of a pending assault charge against Southwood  in Breathitt District Court for allegedly assaulting his mother.  It was further suggested that he may have been involved in a shooting incident involving his brother.  The trial court revoked Southwood’s probation.

Southwood filed a motion to alter, amend or vacate the order pursuant to KRS. 439.3106, pursuant to a statute that had been enacted on June 8, 2011, two days prior to his revocation hearing.  Southwood argued that the statute required the court to make a finding that he could not “be appropriately managed in the community.” The trial court found that they very nature of the pending charges in Perry County were sufficient to revoke his probation and deny the motion.

The Court of Appeals Affirmed, citing KRS 439.3106(2) discussing severity of the violation behavior and risk of future criminal behavior. The Court further noted that Commonwealth v. Alleman, 306 S.W.3d 484, 488 (Ky. 2010) was applicable to the instant case, where the sole testimony introduced was that the defendant absconded.

Contributed by Jason Apollo Hart

KY SC March 22 - Goldsmith - Probation Revocation

William Dustin Goldsmith v. Com.,

2012 WL 975717 (Ky. 2012) March 22, 2012.  Probation revocation. 

Goldsmith pled guilty to three Class D felonies in both Carlisle and Hickman Counties accepting a 15-year sentence in each county and was sentenced to probation. After he violated probation, the trial court ran the two counties' sentences consecutive for a total of 30 years. Since the final judgments were silent as to whether the two counties' sentences were to run consecutively, and the trial court lost jurisdiction 10 days after entry of final judgment under CR 59, the trial court committed plain error because it “exercise[ed] discretion it did not have.”  

The trial court decided to run the sentences consecutively when Goldsmith criticized a religious drug treatment program he had been sent to as a requirement of probation, was “exceedingly disrespectful to the court” when he cursed several times, and the court could not perceive another remedy for Goldsmith’s behavior.  But while “the trial judge has broad discretion and alternative means in handling outbursts in the courtroom…imposing an illegal sentence is not one of them.” Because Goldsmith’s sentence had been fixed and his probation revoked, contempt proceedings were the option.  Case remanded with instructions to run the two 15-year sentences concurrent for a total of 15 years.

Contributed by Susan Balliet

Featured Case - Marshall - Revocation for failure to pay

CW v. Marshall; CW v. Johnson

Rendered by the Supreme Court of Kentucky on August 25, 2011

To be published (now final)

The Court analyzed the due process requirements that apply when the Commonwealth attempts to revoke the probation/conditional discharge of a person convicted of flagrant non-support for failure to pay current and past support as a condition of release. The Court held that the due process requirements set out by the U.S. Supreme Court in Bearden v. Georgia, 461 U.S. 660 (1983) apply because child support arrearages amount to restitution. The Court of Appeals, had previously adopted that holding in Gamble v. Commonwealth, 294 S.W.3d 406 (Ky. App. 2009). This means that the trial court must consider “whether the probationer made sufficient bona fide attempts to make payments but been unable to do so through no fault of his own and, if so, whether alternatives to imprisonment might suffice to serve interests in punishment and deterrence.” To revoke automatically would be fundamentally unfair otherwise.

            These due process requirements apply even if the defendant agreed to pay support as a condition of probation, settling a question left open by the Court of Appeals in Bearden. The Court held “Bearden recognizes constitutional concerns with revoking probation for nonpayment based on poverty alone.” The trial court should focus on the post-plea financial conditions of the defendant. The trial court already decided the defendant should not be incarcerated at the time of sentencing based on what was known then.

            The Court reminded trial courts that they must make specific findings on the record of the Bearden considerations. The Court held that while under CW v. Alleman findings do not necessarily be in writing, they still must be made specifically on the record and “general conclusory reasons” for revoking probation is not enough.

            Thanks to Josh Nacey for preserving this constitutional argument and putting on significant evidence in Marshall’s case about his good faith efforts to find work and pay his support and his poverty. We should be following the Bearden procedure and objecting under due process grounds if courts do not comply and do not make sufficient fact-finding.

Contributed by Kathleen Schmidt

Martin - KY Court of Appeals 9/16/11 - Probation Revocation & Court Costs

Martin v. Commonwealth, 2010-CA-000322-MR and  2010-CA-001905-MR

To Be Published - OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING

Mr. Martin was charged with Burglary in the Second-degree.  He was found guilty and was placed on probation, which was later revoked.  The appeal of the conviction and that of the revocation were consolidated on appeal. 

Martin attacked his conviction by alleging that the Fayette Circuit Court had erred by not conducting a Faretta hearing prior to accepting, and ruling upon, pro se pleadings.  The Court agreed, but, interestingly, held that the Faretta violation did not impact the later revocation of probation, holding the revocation was not error. 

The majority also found no error in the imposition of court costs on Mr. Martin, an indigent as he had argued for probation “in order to maintain employment and to support his family.”  Dissenting, Judge Taylor argued that no distinction should be made between imposition of court costs on probated vs. no-probated indigents.

Contributed by Linda Horsman

Featured Case - Agreeing to leave the county

The order of the court probating a twelve-month sentence on the condition that the defendant leave the county violated the defendant's right of free travel.  Nevertheless, since the defendant did not object to the imposition of that condition at the it was imposed, the judgment of conviction survived and it was not a violation of the defendant's constitutional rights to revoke the probation and order the defendant to serve the twelve months.  Butler v. Commonwealth, 304 SW3d 78 (Ky.App.2010).

Contributed by Glenn McClister