Opinion
NO. 2014-CA-000826-MR
03-25-2016
MIKEL CRUMES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: John Wampler Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 11-CR-00648 OPINION
AFFIRMING BEFORE: ACREE, CHIEF JUDGE; J. LAMBERT AND MAZE, JUDGES. LAMBERT, J., JUDGE: Mikel Crumes appeals the order of the Kenton Circuit Court denying his motion for shock probation. Crumes acknowledges that Kentucky Revised Statutes (KRS) 439.265(2) explicitly states that such decisions by a trial court are not reviewable. However, he insists that we should reverse and remand for a new shock probation hearing because the trial court improperly declined to consider the merits of his motion. After careful review, we conclude that the trial court fully considered the merits before denying Crumes' motion. Therefore, reversal is not warranted, and we affirm the order on appeal.
In August 2012, seventeen-year-old Crumes was convicted as a youthful offender for the robbery and murder of his friend, Dre'Shawn Hammond, based on the testimony of his co-defendant, Tromonte Rice, who had entered a guilty plea, and cellphone tower evidence. In October 2012, the court sentenced Crumes to thirty-years' imprisonment for the murder and twenty-years' imprisonment for the robbery, to run concurrently for a total of thirty-years' imprisonment. Pursuant to KRS 640.030(2), Crumes remained in the custody of the Department of Juvenile Justice (DJJ) until he attained the age of eighteen. While in the custody of the DJJ, Crumes attended rehabilitative treatment and earned his GED. After turning eighteen, Crumes was returned to the trial court for re-sentencing on June 3, 2013. A re-sentencing hearing was held at which the trial court considered whether Crumes' sentence should be probated, whether he should be conditionally discharged, or whether he should be incarcerated in the adult prison to serve his sentence. After due consideration of the testimony, Crumes' record, his rehabilitation, and his alternate sentencing plan, the trial court determined that out of concern for public safety, Crumes should be delivered to the custody of the Department of Corrections (DOC) to serve his sentence. In December 2013, Crumes filed a timely motion for shock probation. A hearing was held on the motion on April 14, 2014, and the trial court denied the request in a written order on April 17, 2014. It is from that order that this appeal is taken.
A direct appeal was taken from the judgment entered in accord with the jury's verdict to the Supreme Court of Kentucky. On December 19, 2013, the Supreme Court affirmed the conviction in an unpublished opinion. Crumes v. Commonwealth, 2013 WL 670044 (2012-SC-000774-MR) (Ky. Dec. 19, 2013). --------
On appeal, Crumes seeks a review of the alleged failure of the trial court to consider the merits of his motion. Generally, trial court orders "granting or denying a motion to suspend further execution of sentence [are] not reviewable." KRS 439.265(2). However, this prohibition does not deprive a reviewing court of the power to determine whether an order was within the jurisdiction of the circuit court. Terhune v. Commonwealth, 907 S.W.2d 779, 782 (Ky. App. 1995), citing Commonwealth ex rel. Hancock v. Melton, 510 S.W.2d 250, 252 (Ky. 1974). Therefore, we may review this matter to determine whether it was in the circuit court's authority to rule on Crumes' motion.
Crumes maintains that the trial court erroneously interpreted Kentucky's Violent Offender Statute, KRS 439.3401, as barring the court from considering him for shock probation. The statute confers the status of violent offender on those who commit certain crimes. Under the statute, an offender convicted of a Class A or B felony cannot be released on parole or probation until he has served eighty-five percent of his sentence. Crumes insists that the Violent Offender Statute cannot act to prevent the trial court from considering him for shock probation because he was adjudicated a youthful offender.
In Commonwealth v. Merriman, 265 S.W.3d 196, 199-200 (Ky. 2008), our Supreme Court held that the Violent Offender Statute cannot act to prevent consideration of probation or conditional discharge on a youthful offender's eighteenth birthday when he is returned to the court for resentencing. Shock probation allows the trial court to reacquire jurisdiction over a defendant for the purpose of reconsidering probation. Thus, Crumes is correct that as a youthful offender he is entitled to be considered for shock probation.
Crumes highlights a statement in the order denying his motion for shock probation as proof that the trial court did not consider the merits of his motion. In its order, the trial court stated that "[t]hus [sic] matter cannot be review [sic] for shock probation pursuant to KRS 439.3401." This statement is clearly contrary to the law as interpreted by the Supreme Court of Kentucky in Merriman. Standing alone, the aforementioned statement substantiates Crumes' contention that this matter should be remanded to the trial court for a new shock probation hearing. However, after reviewing the record and the order from the trial court, we agree with the Commonwealth's contention that the inclusion of the statement appears to be mere surplusage; the trial court properly considered and denied Crumes' motion for shock probation based on its merits.
On April 14, 2014, the trial court held a hearing on Crumes' motion at which his attorney made statements on his behalf regarding his successful treatment while with the DJJ, his good behavior while with the DOC, his lack of a criminal history, and his strong family support in the community. Defense counsel stressed that Crumes was a juvenile at the time of the offense, that his status as a youthful offender made him eligible for shock probation, and that this would be his last chance to be released on probation. At the conclusion of the hearing, the trial court stated that it would thoroughly consider the case and everything defense counsel had submitted. The court further stated that it would consider whether Crumes' critical thinking skills were in such a place that he would not endanger the safety of the public.
On April 17, 2014, the trial court entered an order denying shock probation. In the order, the trial court stated that it had reviewed the pleadings, Crumes' criminal history, the pre-sentence investigation report, the nature and circumstances of the crime, and the history, character and conditions of the defendant. It was the trial court's opinion that Crumes' appropriate behavior while incarcerated in the adult correctional facility for ten months did not mitigate his calculated behavior during the commission of the crime. It finally concluded that shock probation would unduly depreciate the seriousness of the offense.
KRS 533.010(2) provides that the court should only grant probation after considering the nature and circumstances of the crime, and the history, character and condition of the defendant. Imprisonment may be necessary for the protection of the public if the court finds that:
(a) There is substantial risk that during a period of probation or conditional discharge the defendant will commit another crime;(Emphasis added).
(b) The defendant is in need of correctional treatment that can be provided most effectively by his commitment to a correctional institution; or
(c) A disposition under this chapter will unduly depreciate the seriousness of the defendant's crime.
Here, despite the inexplicable inclusion of the statement with which Crumes takes issue, the language in the order establishes that the trial court gave a full and fair consideration to the arguments and circumstances based on the criteria courts must consider under KRS 533.010(2) when determining if probation is proper. Based on its evaluation, the trial court made the express finding that remanding Crumes to the DOC was necessary for the protection of the public as his release would unduly depreciate the seriousness of his crime. We hold that the trial court properly considered and denied Crumes' motion for shock probation, and thus, we find no error.
For the foregoing reasons, the order of the Kenton Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: John Wampler
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky