Opinion
NO. 2013-CA-000518-MR
02-21-2014
BENJAMIN D. COX APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: J. David Niehaus Office of the Louisville Metro Public Defender Louisville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Heather M. Fryman Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MITCHELL PERRY, JUDGE
ACTION NO. 07-CR-000383
OPINION
AFFIRMING
BEFORE: COMBS, DIXON, AND VANMETER, JUDGES. COMBS, JUDGE: Benjamin D. Cox appeals a decision of the Jefferson Circuit Court to revoke his probation. Cox argues that the trial court's order must be vacated because the prosecuting attorney was permitted to play an active role in the court's revocation hearing. We disagree, and thus we affirm.
On October 30, 2006, the First American Cash Advance on Dixie Highway in Louisville was robbed. Cox was arrested in connection with the robbery on December 1, 2006, and he admitted that he had driven the get-away car. At his arraignment, he pleaded not guilty.
On January 29, 2008, Cox pleaded guilty (pursuant to the terms of Alford v. North Carolina, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2 162 (1970)) to a charge of criminal facilitation to robbery. Judgment was entered on February 6, 2008.
The circuit court conducted a sentencing hearing on February 21, 2008. Following the hearing, Cox was sentenced to five-years' imprisonment, conditionally discharged for a period of five years. The court's order of probation was entered on March 19, 2008.
Over the next several years, numerous proceedings were initiated to revoke Cox's probation. These proceedings were based upon various grounds, including his arrest for possession of marijuana and drug paraphernalia and for allegations that Cox had absconded from probation supervision. The proceeding upon which this appeal is based was initiated on October 29, 2012. The proceeding was triggered by another report from his probation officer that Cox could not be adequately supervised.
Following an evidentiary hearing conducted on November 19, 2012, the circuit court found that Cox had violated the terms and conditions of his probation. The court's order revoking the conditional discharge was entered on February 14, 2013.
On appeal, Cox concedes that evidence presented at the hearing supports the circuit court's finding that he violated the terms and conditions of probation. He also concedes that he preserved no viable issue for our review. Nevertheless, he contends that the revocation hearing conducted by the circuit court was improper and unfair and that it must be vacated pursuant to our palpable error rule. Kentucky Rule[s] of Criminal Procedure (RCr) 10.26. While he did not object on this basis at the hearing, Cox argues on appeal that the revocation order must be vacated since the Commonwealth's attorney should not have been permitted to participate in the proceedings.
Our standard of review is set forth by the provisions of RCr 10.26, which provides as follows:
A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.Under the provisions of RCr 10.26, an unpreserved error may generally be noticed on appeal if the error is "palpable" and if it "affects the substantial rights of a party." Even then, relief is appropriate only "upon a determination that manifest injustice resulted from the error." RCr 10.26. "For an error to rise to the level of palpable, 'it must be easily perceptible, plain, obvious and readily noticeable.'" Doneghy v. Commonwealth, 410 S.W.3d 95, 106 (Ky. 2013) (quoting Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006)).
The error alleged before us is neither palpable nor did it affect Cox's substantial rights. Thus, we are precluded from reviewing it by the very terms of RCr 10.26.
Kentucky Revised Statute[s] ( KRS) 533.050(2) provides that a court may revoke or modify a conditional discharge after a properly noticed hearing at which the probationer is represented by counsel. Beyond those requirements, no other specific rules governing the conduct of revocation hearings have been articulated. Rasdon v. Commonwealth, 701 S.W.2d 716 (Ky. App. 1986). Thus, the alleged error is not easily perceptible, plain, or obvious. To the contrary, where a probationer is afforded counsel, it is not unreasonable to expect that the Commonwealth would seek to participate with its own counsel and that the trial court would permit such an appearance. Consequently, it cannot be said that the error in these revocation proceedings - if any at all - is palpable.
Furthermore, the alleged error did not affect Cox's substantial rights. Probation revocation proceedings are not criminal proceedings and do not afford a probationer the full panoply of rights available under the Sixth Amendment. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Instead, only the barest trappings of due process are required with respect to probationers. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). We hold that the participation of the Commonwealth's attorney in the proceedings under these circumstances did not violate the minimal safeguards afforded Cox as a probationer.
We affirm the order of the Jefferson Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: J. David Niehaus
Office of the Louisville Metro Public
Defender
Louisville, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Heather M. Fryman
Assistant Attorney General
Frankfort, Kentucky