Opinion
NO. 2011-CA-001368-MR
01-18-2013
RODNEY GIBSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
Emily Holt Rhorer Department of Public Advocacy Frankfort, Kentucky Jack Conway Attorney General of Kentucky Frankfort, Kentucky John Paul Varo Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CRITTENDEN CIRCUIT COURT
HONORABLE C. RENE' WILLIAMS, JUDGE
ACTION NO. 07-CR-00008
OPINION
AFFIRMING
BEFORE: MAZE, MOORE AND TAYLOR, JUDGES. MAZE, JUDGE: Appellant, Rodney Gibson ("Gibson"), appeals the Crittenden Circuit's revocation of his probation and subsequent sentence of five years' incarceration for the underlying charge of trafficking in a controlled substance within 1,000 feet of a school. We find that the trial court did not abuse its discretion. Hence, we affirm.
Background
On July 12, 2007, Gibson was convicted for trafficking in a controlled substance within 1,000 feet of a school and was sentenced to five years' imprisonment. Twenty-five months later, Gibson received shock probation on the condition that he, among other requirements, enroll in and complete Crittenden County's Drug Court program. During his twenty-one months in the program, Gibson failed no drug screens and attended classes regularly. However, Gibson received at least fifteen sanctions for various infractions, including missed drug screens and failure to bring required paperwork to meetings. These sanctions included two brief stays in jail. On July 6, 2011, Gibson was terminated from the Drug Court program. Probation and Parole officials immediately filed a motion and affidavit seeking revocation of Gibson's probation due to his failure to complete Drug Court, a condition of his probation.
The trial court heard evidence on July 14, 2011. Officer Robert Brock testified for Probation and Parole. Although he was not the officer in charge of Gibson's supervision, Officer Brock testified to the fact that Gibson violated a term of his probation by failing to complete Drug Court. However, Officer Brock did not know why Gibson was terminated. Gibson testified at the hearing that he had been terminated from Drug Court because he was ten minutes late for a drug screen. Gibson acknowledged the fifteen previous sanctions he received while enrolled in Drug Court. Gibson testified that, due to his working night shifts, he was often unable to attend drug screens at the required times.
During Gibson's testimony, the trial court judge, who also administered the Drug Court program in Crittenden County, engaged Gibson on the matter of his previous sanctions. During this exchange, the court mentioned a conversation it had had with Gibson during the last Drug Court meeting he attended. When asked to give "the real reason" he had been terminated from Drug Court, Gibson responded that it was because he had not told the truth. After this brief exchange, the trial court found Gibson to have violated a condition of his probation due to his termination from Drug Court. The court granted the Commonwealth's motion to revoke Gibson's probation and sentenced him to serve the remainder of his five-year sentence. Gibson now appeals from this finding.
Standard of Review
Gibson alleges that the trial court committed several errors in finding in favor of the Commonwealth's motion to revoke. Gibson contends that revocation violated his due process rights, due to the Commonwealth's lack of compliance with the minimum requirements for notice and disclosure of evidence. Gibson claims the trial court was not a "detached hearing body" due to its active role in the administration of Drug Court and the court's independent knowledge of Gibson's participation and termination. Additionally, Gibson contends that the newly enacted KRS 439.3106 required the trial court to consider other alternatives to revocation and incarceration, and that the court erred in failing to do so.
Kentucky Revised Statutes
At a revocation hearing, the grounds for revocation must be proven by a preponderance of the evidence. Rasdon v. Commonwealth, 701 S.W.2d 716, 719 (Ky. App. 1986). A reviewing court assesses the judgment by applying an abuse of discretion standard. Tiryung v. Commonwealth, 717 S.W.2d 503, 504 (Ky. App. 1986). Generally, a trial court's decision revoking probation is not an abuse of discretion if there is evidence to support at least one probation violation. Lucas v. Commonwealth, 258 S.W.3d 806, 807-08 (Ky. App. 2008)(citing Messer v. Commonwealth, 754 S.W.2d 872, 873 (Ky. App. 1988). We therefore review the present court's revocation order to determine whether it abused its discretion; that is, whether it acted arbitrarily, unreasonably, unfairly, or in a manner unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941 (Ky. 1999).
Analysis
We first note that the Commonwealth is correct that Gibson's arguments regarding procedural due process are not properly preserved for appellate review. Specifically, Gibson's arguments regarding the sufficiency of the notice of his probation violation, the disclosure of evidence to be used against him, the adequacy of the order revoking his probation, and the neutrality of the trial court are unpreserved on appeal. "Errors must be preserved or presented to the trial court in order for the trial court's ruling to be subject to review." Dillingham v. Commonwealth, 995 S.W.2d 377 (Ky. 1999)(internal quotations omitted).
Nevertheless, under RCr 10.26, we may consider the appeal if we believe there to be "palpable error" which affected Gibson's "substantial rights" and resulted in "manifest injustice," i.e., a "probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law." Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). However, we cannot say that such is the case. Reviewing the record, we see no evidence of insufficient notice or disclosure of evidence to Gibson, and we find no prejudice which resulted from the mere fact that the trial court played an active role in Drug Court and had independent knowledge of Gibson's time there. Thus, we find no palpable error and decline to review these issues further.
Kentucky Rules of Criminal Procedure.
We turn to Gibson's remaining argument regarding the trial court's compliance with KRS 439.3106. The statute, which took effect more than a month before Gibson's revocation hearing, provides
[s]upervised individuals shall be subject to:
(1) Violation revocation proceedings and possibleKRS 439.3106. Gibson's counsel read this statute into the record at the revocation hearing, arguing that it required the court to consider lesser sanctions than revocation. Indeed, the stated purpose behind the addition of this statute to the penal code, as achieved under House Bill 463, was "to curb the cost of incarceration without compromising public safety." Bedson v. Commonwealth, 2012 WL 4839552 (Ky. App. 2012)(2011-CA-001590-MR)(citing http://courts.ky.gov/pressreleases/NR06202011JB2.htm). However, as this Court recently noted, the first paragraph of KRS 439.3106 demonstrates that "the General Assembly clearly wanted incarceration to remain a possible penalty for probation violations." Jarrell v. Commonwealth, --- S.W.3d --- (Ky. App. 2012).
incarceration for failure to comply with the conditions of supervision when such failure constitutes a significant risk to prior victims of the supervised individual or the community at large, and cannot be appropriately managed in the community; or
(2) Sanctions other than revocation and incarceration as appropriate to the severity of the violation behavior, the risk of future criminal behavior by the offender, and the need for, and availability of, interventions which may assist the offender to remain compliant and crime-free in the community.
This case became final on December 13, 2012.
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In the case law that has emerged since the enactment of KRS 439.3106, the determining factor for error has not been a trial court's failure to list exhaustively its findings regarding every factor mentioned in the statute. In fact, this Court has recently held that "the statutory language of KRS 439.3106 does not require the court to make specific findings of fact." Southwood v. Commonwealth, 372 S.W.3d 882, 884 (Ky. App. 2012). Rather, we look to the findings of the trial court, both written and oral, to discern whether the trial court "appropriately considered the General Assembly's wishes." See Jarrell, supra, at 7.
At the end of the hearing, the trial court pointed out that Gibson had been given multiple chances to improve his behavior during his twenty-one months in Drug Court. Despite fifteen sanctions, which included time in jail, Gibson continued to run afoul of the program's rules. The trial court further pointed out that Gibson himself admitted the reason for his dismissal was dishonesty, a form of "addict thinking," despite being repeatedly instructed that honesty was "the most important part of the Drug Court program."
While the reasons for Gibson's dismissal from Drug Court are irrelevant to the fact of his probation violation, they are relevant to the trial court's consideration of the factors of KRS 439.3106. The court was aware that twenty-one months were spent, to little or no avail, addressing "the need for . . . interventions which may assist [Gibson] to remain compliant and crime-free in the community." KRS 439.3106. Gibson was unable to remain compliant, as he admitted during the hearing. Thus, the trial court expressed its concern that Gibson's unwillingness or inability to adopt basic tenants of Drug Court, such as honesty, constituted continued "addict thinking" and reflected negatively on Gibson's ability to remain compliant and crime-free within the community. Such concerns obviously have bearing on the elements named in the statute (i.e., Gibson's risk to the community, ability to be appropriately managed, and his risk of future criminal behavior). The court's expressed concerns were reasonable, and more importantly, they demonstrate that the court considered the factors listed in the statute.
Accordingly, we conclude that in deciding to revoke based on the reasons it stated on the record, the trial court gave proper consideration to the factors in KRS 439.3106 and did not abuse its discretion. It was not arbitrary, unreasonable, unfair or unsupported by sound legal principles to conclude that Gibson, after fifteen violations of Drug Court policy, was appropriate for revocation of the privilege of probation.
Conclusion
We find no abuse of discretion on the part of the trial court in revoking Gibson's probation. Hence, the order of the Crittenden Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Emily Holt Rhorer
Department of Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
John Paul Varo
Assistant Attorney General
Frankfort, Kentucky