Opinion
NO. 2015-CA-001331-MR
12-09-2016
WILLIAM SMITH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Erin Hoffman Yang Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE, BARRY WILLETT, JUDGE
ACTION NOS. 06-CR-004115 & 07-CR-000729 OPINION
VACATING
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BEFORE: KRAMER, CHIEF JUDGE; COMBS AND JONES, JUDGES. KRAMER, CHIEF JUDGE: William Smith appeals from an order of the Jefferson Circuit Court revoking his probation. Having reviewed the record, we conclude that the circuit court lacked jurisdiction to revoke Smith's probation, and we vacate the circuit court's order.
On May 2, 2007, Smith pled guilty in a Jefferson Circuit Court to six counts of theft by unlawful taking over $300.00, two counts of fraudulent use of a credit card, and one count of theft by unlawful taking under $300.00. On June 28, 2007, the circuit court sentenced Smith to a term of five-years' imprisonment. Shortly thereafter, on October 12, 2007, Smith was granted shock probation for a period of five years.
Smith was charged under two indictments.
Seven months later, on May 19, 2008, the Division of Probation and Parole issued a report indicating that Smith had violated a condition of his probation by testing positive for the use of a controlled substance. After several more violations, the Commonwealth, on October 22, 2008, moved the circuit court to revoke Smith's probation. On November 19, 2008, having determined that Smith did indeed violate the terms of his probation, the circuit court, instead of revoking Smith's probation, reinstated Smith's probation with the condition that he serve 120 days in the Community Correctional Center.
On August 9, 2009, Smith was arrested for robbing a waitress outside of a restaurant. A probation revocation hearing was set for September 1, 2009, but moved to October 20, 2009, because the robbery charge was still pending in district court. On October 15, 2009, Smith moved to reassign the probation revocation hearing date in part because the robbery charge had not yet left district court. The circuit court granted Smith's motion.
We note, however, that there was no need to delay the probation revocation hearing until the robbery charge was resolved because a conviction on the new robbery charge was not necessary in order to revoke Smith's probation. See Barker v. Commonwealth, 379 S.W.3d 116, 123 (Ky. 2012).
The other reason Smith wanted the hearing date reassigned is because his trial counsel was going to be out of town on October 20, 2009.
On November 19, 2009, a revocation hearing was held. At the hearing Smith was again granted a continuance because the robbery charge was unresolved. For a variety of reasons, the revocation proceeding was rescheduled a number of times. On June 6, 2011, the Commonwealth asked for a continuance pending the outcome of the underlying robbery charge. Smith agreed and asked that a hearing date be set after the scheduled July 20, 2011 trial. In response, the circuit court stated that it would not schedule another hearing until the robbery trial was concluded. By order entered June 15, 2011, the circuit court held the Commonwealth's motion to revoke Smith's probation in abeyance pending the resolution of the robbery charge.
In the summer of 2011, the Jefferson Circuit Court declared a mistrial in Smith's robbery case. During the revocation hearing in this case, it was explained that the case involving the robbery of the waitress was ultimately dismissed in October 2013.
On September 25, 2012, less than one month before the five-year anniversary of Smith's probation sentence, the Commonwealth again moved to revoke Smith's probation, alleging new violations had occurred in August 2012. After a probation hearing was once again delayed several times, on April 15, 2013, Smith filed a motion to remand the Commonwealth's motion to revoke. In the motion Smith argued that, pursuant to Conrad v. Evridge, 315 S.W.3d 313 (Ky. 2010), the circuit court lacked jurisdiction to revoke his probation, as it had expired on October 12, 2012. The Commonwealth responded on April 29, 2013, and argued that Evridge was inapplicable because Smith asked that the revocation proceedings be postponed until his robbery charge was resolved. For reasons not apparent from the record, the circuit court waited a year and a half before it denied Smith's motion, by written order, on December 4, 2014. The circuit court found that Smith's shock probationary period was tolled and extended by the June 15, 2011 order holding his revocation hearing in abeyance.
Smith traveled outside of Kentucky without the permission of Probation and Parole.
A probation revocation hearing was set for December 2014, but was again delayed several times until July 27, 2015. During that hearing, the Commonwealth argued that Smith's probation should be revoked based upon two probation supervision reports: (1) a February 7, 2013 report stating that Smith had been charged out of state (i.e., in Pennsylvania) with driving under the influence and with traffic offenses; and (2) an April 30, 2015 report stating that Smith had assaulted someone. On July 30, 2015, the circuit court entered a written order revoking Smith's probation and reinstating his original five-year sentence.
The issue on appeal is whether the circuit court had jurisdiction to revoke Smith's probation. When the lower court is alleged to be acting outside of its jurisdiction, the proper standard of review is de novo because jurisdiction is a question of law. See Grange Mutual Insurance Co. v. Trude, 151 S.W.3d 803, 810 (Ky. 2004).
Under KRS 533.020(4):
Kentucky Revised Statute. --------
(4) The period of probation, probation with an alternative sentence, or conditional discharge shall be fixed by the court and at any time may be extended or shortened by duly entered court order. Such period, with extensions thereof, shall not exceed five (5) years, or the time necessary to complete restitution, whichever is longer, upon conviction of a felony nor two (2) years, or the time necessary to complete restitution, whichever is longer, upon conviction of a misdemeanor. Upon completion of the probationary period, probation with an alternative sentence, or the period of conditional discharge, the defendant shall be deemed finally discharged, provided no warrant issued by the court is pending against him, and probation, probation with an alternative sentence, or conditional discharge has not been revoked.(Emphasis added).
Our Supreme Court has consistently held that KRS 533.020(4) plainly requires that, provided no warrant has issued, a defendant's probation be revoked, if at all, during the probationary period. Otherwise, the trial court loses jurisdiction. See Evridge, 315 S.W.3d at 315 (holding that probation must be revoked, if at all, before the probationary period expires) and Whitcomb v. Commonwealth, 424 S.W.3d 417, 420 (Ky. 2014) (holding that pursuant to KRS 533.020(4), "the issuance of a warrant for a probation violation will toll the period of probation preventing the probationer from being automatically discharged. . . . The warrant, however, must be issued before the expiration of the period of probation."). In some circumstances KRS 533.040 operates to toll the probationary period when a probationer has violated the terms of his probation and jail time is ordered in lieu of revocation. KRS 533.040(2) provides:
If a court, as authorized by law, determines that a defendant violated the conditions of his probation or conditional discharge but reinstates probation or conditional discharge, the period between the date of the violation and the date of restoration of probation or conditional discharge shall not be computed as a part of the period of probation or conditional discharge.However, we need not here determine whether Smith's 120 days in jail tolled his probationary period because he was revoked well outside 120 days past his October 12, 2012 expiration date, and no warrant had issued against Smith by October 12, 2012, or within the 120 days following that date. Because no warrant had issued against Smith within the allotted time frame and his probation had not been revoked during that time, by operation of the statute, the court lost jurisdiction over his case. The circuit court revoked Smith's probation on July 27, 2015—clearly outside the fixed probationary period.
The Commonwealth argues that Smith's request to delay the probation revocation hearing until after the disposition of the robbery charge acted to toll the revocation period. The Commonwealth insists that the instant case is analogous to Commonwealth v. Griffin, 942 S.W.2d 289 (Ky. 1997). In Griffin, after the probationer failed to make restitution payments, the Commonwealth moved to revoke his probation. At the probation hearing, the probationer agreed to allow the trial court to extend his probation beyond the statutorily authorized five-year period so that he could avoid revocation. In his second five-year period of probation, the probationer argued that his probation could not be revoked because it was unauthorized. Our Supreme Court held that the statute's five-year limitation on probation could be waived by a knowing and voluntary request for extension of the probationary period in exchange for avoiding imminent revocation of probation and imprisonment. The Commonwealth believes that Smith's request to delay the revocation hearing until after the disposition of the robbery charge is equivalent to a waiver of the five-year probationary period for which he received the benefit of not being revoked. We reject the Commonwealth's argument.
Unlike the probationer in Griffin, Smith did not knowingly and voluntarily request that his probation be extended. Smith requested that the court postpone the hearing until after the disposition of the robbery charge so that he might better defend against the charges. Smith could not have concluded when he asked for a continuance that he was agreeing to indefinitely waive the five-year limitations period on his probation. Moreover, unlike the probationer in Griffin, Smith did not receive the benefit of avoiding imminent revocation and incarceration. The continuance merely postponed the hearing that might still have possibly resulted in Smith being sent to jail. Accordingly, we do not agree with the Commonwealth that Smith's case is analogous to Griffin.
The Commonwealth argues that because Smith took part in the delays he cannot argue that the court no longer has jurisdiction. Our Supreme Court has not decided what effect a probationer's involvement in delaying probationary hearings has on the period of probation, but has expressed concerns that a strict interpretation of the statute might allow a probationer to "beat the system." Evridge, 315 S.W.3d at 317.
However, it is of no consequence that the revocation hearing based on the robbery charge was continued several times because ultimately Smith's probation was not revoked based upon the robbery charge. Rather, the robbery charge was ultimately dismissed; so, the motion to revoke that was based on that charge was never heard. Instead, the Commonwealth moved the circuit court to revoke Smith's probation on September 25, 2012, based on new charges. During the revocation hearing that was held on July 27, 2015, the Commonwealth asked the court to revoke Smith's probation based upon the February 7, 2013 out-of-state driving under the influence charge and the April 30, 2015 assault charge. Smith's request for a continuance on the prior motion concerning the robbery charge that was later dismissed had no effect on the new motion to revoke, and Smith never asked for a continuance on the new motion. The Commonwealth moved to revoke Smith's shock probation in September 2012 and was required to revoke or obtain an arrest warrant for the probation violation by October 12, 2012. The court was without jurisdiction when it revoked Smith's probation almost three years later in July 2015. To hold otherwise would be contrary to statute.
For the foregoing reasons, we vacate the order of the Jefferson Circuit Court revoking Smith's probation.
ALL CONCUR. BRIEF FOR APPELLANT: Erin Hoffman Yang
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky