Opinion
NO. 2013-CA-000342-MR
02-07-2014
ANTHONY MOSBY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Anthony L. Mosby, Jr., pro se St. Mary, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky John Paul Varo Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BARREN CIRCUIT COURT
HONORABLE PHIL PATTON, JUDGE
ACTION NOS. 11-CR-00315 & 11-CR-00318
OPINION
AFFIRMING
BEFORE: CAPERTON, TAYLOR AND THOMPSON, JUDGES. THOMPSON, JUDGE: Anthony Mosby, pro se, appeals the denial of his motion for CR 60.02 relief to vacate the order revoking his probation for lack of findings under KRS 439.3106.
On March 12, 2012, Mosby pled guilty on separate indictments to possession of a controlled substance first degree for methamphetamine and second degree assault. Pursuant to a plea agreement, Mosby received concurrent sentences of three years of incarceration on the possession charge and ten years on the assault charge.
Mosby requested shock probation conditioned on attendance of long-term rehabilitation treatment and stated he was accepted into the Bear House Drug & Alcohol Treatment Program. On May 1, 2012, the circuit court granted shock probation and required Mosby to refrain from using any alcohol or drugs, required the probation department to arrange for Mosby to be assessed and placed in long-term inpatient treatment and required Mosby to successfully complete all treatment and aftercare. The order noted Mosby had arranged to enter Bear House and the assessor could consider that option.
After shock probation began, Mosby was enrolled as a resident at Bear House. In June 2012, Jason Alexander, Mosby's probation officer, received a report from Mosby's girlfriend that he was acting erratically and appeared high. Mr. Alexander also received reports from law enforcement that Mosby was associating with known drug addicts and seen at a location where a methamphetamine lab was later discovered. Mr. Alexander arranged for drug testing and Mosby tested positive for methamphetamines on two occasions and admitted to using methamphetamines.
At Mosby's probation revocation hearing on July 16, 2012, Mr. Alexander testified Mosby had two positive drug tests, had a drug problem and was in need of additional treatment. He testified Bear House was not an adequate rehabilitation program and the probation department was no longer sending probationers to that program.
Mosby testified he had a fifteen-year-long addiction to drugs and had gotten "high on meth" while on probation. He explained Bear House was not a helpful treatment facility for him because it was full of drugs and he was free to come and go. Mosby requested inpatient treatment where he could not leave.
The circuit court agreed Mosby needed treatment and explained it would revoke Mosby's probation and order his enrollment in the Department of Corrections Substance Abuse Program (SAP). The court explained SAP was an excellent program and would give Mosby a chance to complete treatment in an environment where he could not leave.
On July 17, 2012, the circuit court revoked Mosby's probation. The written order of revocation contained only one finding: "The Court hereby finds that the defendant has violated the terms of probation by failing to remain drug/alcohol free." The court imposed Mosby's original sentences and ordered his enrollment in SAP.
Mosby filed a pro se direct appeal challenging his original sentence rather than the revocation of his probation. The appeal was subsequently dismissed.
On December 21, 2012, Mosby filed a pro se CR 60.02 motion arguing the circuit court erred in revoking his probation without making appropriate findings pursuant to KRS 439.3106 that he was a significant risk to the community and could not be managed in the community. The trial court denied the motion and Mosby timely appealed.
CR 60.02 provides for relief of a final order based upon mistake, newly discovered evidence, perjury, fraud affecting the proceedings, a void judgment or other reasons of an extraordinary nature. CR 60.02 is made applicable to criminal defendants pursuant to RCr 13.04.
On appeal, we review the denial of a motion pursuant to CR 60.02 for abuse of discretion. Brown v. Commonwealth, 932 S.W.2d 359, 362 (Ky. 1996). An abuse of discretion occurs when a trial court's decision is arbitrary, unreasonable, unfair or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Although Mosby timely filed his CR 60.02 motion, relief pursuant to it is inappropriate because Mosby failed to take advantage of the previous avenues of relief available to him in Kentucky for attacking his probation revocation:
The structure provided in Kentucky for attacking the final judgment of a trial court in a criminal case is not haphazard and overlapping, but is organized and complete. That structure is set out in the rules related to direct appeals, in RCr 11.42, and thereafter in CR 60.02.Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). The Gross Court held the proper procedure for an aggrieved defendant to follow is to first directly appeal his judgment, stating every ground of error of which he could be reasonably aware, and second to avail himself of RCr 11.42 as to any ground of which he should be aware of during the period when this relief is available to him. Id. at 857.
CR 60.02 is not intended to be an additional opportunity to relitigate issues that could have reasonably been presented on direct appeal of the revocation of probation. Instead, CR 60.02 was enacted as a substitute for the common law writ of coram nobis in order to bring before the court errors "which (1) had not been put into issue or passed on, (2) were unknown and could not have been known to the party by the exercise of reasonable diligence and in time to have been otherwise presented to the court, or (3) which the party was prevented from so presenting by duress, fear, or other sufficient cause." Gross, 648 S.W.2d at 856. In addition to showing the claim could not have been raised in a previous proceeding, the defendant must demonstrate why he is entitled to special, extraordinary relief. Id.
Although Mosby's counsel failed to request additional findings and preserve the issue of the court's failure to make required findings for direct appeal, this issue was knowable with reasonable diligence at the time Mosby's probation was revoked. Mosby could have raised this issue on direct appeal through palpable error review. See e.g. Kaletch v. Commonwealth, 396 S.W.3d 324, 329 (Ky.App. 2013). He also could have made an ineffective assistance of counsel claim pursuant to RCr 11.42 challenging counsel's failure to request additional findings and preserve this issue for appeal. Accordingly, the circuit court did not abuse its discretion in denying him relief pursuant to CR 60.02.
However, even if Mosby's claim was properly before us, reversal for failure to make findings would not be warranted because the trial court made appropriate oral findings during the revocation hearing.
Pursuant to KRS 439.3106(1), to revoke probation the court must find: (1) the probationer's failure to abide by a condition of supervision constitutes a significant risk to prior victims or the community; and (2) the probationer cannot be managed in the community. KRS 439.3106(1). Here, the court considered whether Mosby was a threat to the community and whether effective drug treatment could take place in the community. The court made oral findings that Mosby's continuing active addiction was a threat, he could only receive effective treatment in a location in which it would be impossible for him to leave and there were not appropriate interventions available in the community. The court's oral findings recorded in the video record satisfy due process and are, therefore, sufficient for revocation of probation. Commonwealth v. Alleman, 306 S.W.3d 484, 487-488 (Ky. 2010); Barker v. Commonwealth, 379 S.W.3d 116, 130 (Ky. 2012).
Accordingly, we affirm the denial of Mosby's CR 60.02 motion by the Barren Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Anthony L. Mosby, Jr., pro se
St. Mary, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
John Paul Varo
Assistant Attorney General
Frankfort, Kentucky