Opinion
NO. 2012-CA-000593-MR
06-27-2014
LARRY DIXON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Erin Hoffman Yang Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky J. Hays Lawson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 10-CR-00490
OPINION
AFFIRMING
BEFORE: CAPERTON, COMBS, AND DIXON, JUDGES. CAPERTON, JUDGE: Larry Dixon appeals the revocation of his probation, and asserts that the trial court was without jurisdiction to revoke it. The Commonwealth argues that the trial court was with jurisdiction and thus the revocation was proper. After a thorough review of the parties' arguments, the record, and the applicable law, we affirm.
The facts that give rise to this appeal are not in dispute. Dixon pled guilty to first-degree possession of a controlled substance, first-offense; possession of drug paraphernalia; and second-degree possession of a controlled substance, second-offense. He received sentences for the offenses of five years, twelve months, and five years, all to run concurrently, for a total of five years. On February 2, 2011, his sentences were probated for one year.
A bench warrant was issued on January 27, 2012, alleging that Dixon had violated probation when arrested on drug charges. The probation revocation hearing was not held until March 14, 2012. Neither party alleges that this delay in the hearing was the result of Dixon's actions.
At the hearing, defense counsel objected, noting that Dixon's probationary period had already expired. The Commonwealth relied on the fact that the warrant had been issued prior to the expiration of the probationary period to argue that Dixon had not been discharged from probation. The trial court revoked Dixon's probation. It is from this that Dixon now appeals.
On appeal the parties present a sole issue, namely, whether the trial court was without jurisdiction to revoke Dixon's probation. Dixon argues that the trial court was without jurisdiction as his probationary period had expired prior to the court's revocation of his probation, relying on the recent decision of Conrad v. Evridge, 315 S.W.3d 313, 315 (Ky. 2010), wherein the Kentucky Supreme Court interpreted Kentucky Revised Statutes (KRS) 533.020(4) and held: "There is no plausible interpretation other than that probation must be revoked, if at all, before the probationary period expires. The circuit court has no jurisdiction to revoke Appellee's probation, or to hold a revocation hearing, after that time." Conrad at 315 citing Curtsinger v. Commonwealth, 549 S.W.2d 515, 516 (Ky. 1977).
Of import, KRS 533.020(4) states:
(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.
The Kentucky Supreme Court addressed the application of Conrad in Whitcomb v.Commonwealth, 424 S.W.3d 417 (Ky. 2014). Accordingly, we are guided by the Whitcomb decision as discussed herein.
--------
The Commonwealth argues that because the court had issued a warrant prior to the expiration of the probationary period, the court had jurisdiction to revoke Dixon's probation after the probationary period ended.
With this in mind, we now turn to the sole issue on appeal, whether the trial court had jurisdiction to revoke Dixon's probation after the expiration of the probationary period.
First we note that this matter involves the trial court's conclusions of law concerning KRS 533.020 and the application of Conrad, supra. As such, a trial court's conclusions of law are subject to independent de novo review by this Court. Gosney v. Glenn, 163 S.W.3d 894, 898 (Ky. App. 2005).
Each party contends that KRS 533.020(4) supports its position, particularly, "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).
The Commonwealth argues that the trial court may revoke probation if an active warrant was issued prior to the termination of the probationary period, relying on the language "provided no warrant issued by the court is pending against him...." The Commonwealth further argues that to interpret the statute otherwise would render an entire section of the statute meaningless, as both conditions will never be simultaneously true because the revocation of probation would mean that there is no warrant pending.
We believe that the proper interpretation of KRS 533.020(4) to the facts sub judice gave the trial court jurisdiction over Dixon's probation revocation hearing based on the Kentucky Supreme Court's recent decision in Whitcomb v. Commonwealth.
In Whitcomb, the Court made clear 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." Whitcomb at 420. Sub judice, the court issued the bench warrant for a probation violation prior to the expiration of the period of probation, which meant Dixon was not automatically discharged from probation. Accordingly, the trial court had jurisdiction to hold the probation revocation hearing.
In light of the aforementioned, we affirm the trial court's revocation of Dixon's probation.
ALL CONCUR. BRIEFS FOR APPELLANT:
Erin Hoffman Yang
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
J. Hays Lawson
Assistant Attorney General
Frankfort, Kentucky