Opinion
NO. 2013-CA-000791-MR
11-07-2014
BILL PETERSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Meredith Krause Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General Wm. Robert Long, Jr. Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM RUSSELL CIRCUIT COURT
HONORABLE VERNON MINIARD, JR., JUDGE
ACTION NO. 05-CR-00080
OPINION
REMANDING
BEFORE: COMBS, NICKELL AND TAYLOR, JUDGES. NICKELL, JUDGE: Bill Peterson appeals from an April 15, 2013, order of the Russell Circuit Court denying his motion for sentence modification pursuant to CR 60.02. After reviewing the briefs, the record and the law, we cannot say with certainty Peterson's probationary period was tolled sufficiently to ensure the trial court had jurisdiction when it revoked Peterson's probation. Therefore, we remand for additional findings consistent with this Opinion.
Kentucky Rules of Civil Procedure.
FACTS
On May 9, 2006, Peterson pled guilty to receiving stolen property over $300.00 and received a five-year sentence probated for five years—a term that, without interruption, would have expired on May 9, 2011. Peterson was further ordered to pay court costs in the amount of $165.00.
Peterson states in his CR 60.02 motion that his probationary period expired in 2010. We deem this to be a misstatement on Peterson's part, perhaps because he was indicted in 2005. Judgment of conviction was entered May 9, 2006, imposing a sentence of five years, probated for five years, meaning the earliest date on which his probationary period could expire was May 9, 2011.
Subsequent to entry of the judgment of conviction, Peterson encurred additional criminal charges, the records of which have not been provided to this Court. In 2010, Peterson was ordered to appear before the trial court and show cause why he had failed to pay the court-ordered costs. On April 27, 2010, Peterson was ordered to pay $25.00 per month towards his costs. On June 9, 2010, an order of arrest was issued for Peterson for failure to pay. Peterson was arrested on July 31, 2010, and released on August 26, 2010, upon payment of $100.00. After again failing to appear before the trial court for review, another order of arrest for Peterson was issued and executed on January 9, 2011. Peterson made another payment—although the date of that payment and the date of his release are unclear. In any event, review was continued until May 10, 2011.
On April 25, 2011, Peterson's probation officer filed a special supervision report requesting a warrant for three probation violations: absconding probation; failure to report (twice); and failure to cooperate with probation officer. A warrant was issued and Peterson was arrested on April 28, 2011. On May 27, 2011, more than two weeks after the original date on which Peterson's probation would have expired—had there been no tolling of the probationary period—the Commonwealth filed a motion to revoke probation referencing the violations mentioned in the April 25 special supervision report. A revocation hearing was held on September 13, 2011, and an order revoking probation was entered on January 17, 2012.
On July 10, 2012, Peterson filed a motion to vacate, set aside, or correct his sentence pursuant to RCr 11.42, coupled with a request for an evidentiary hearing, wherein he argued the trial court had improperly revoked his probation eight months after the probationary period had expired. Apparently, that motion was never ruled upon by the trial court, prompting Peterson on January 28, 2013, to file a motion for modification of his sentence pursuant to CR 60.02 and/or KRS 532.070. Peterson again argued his probation revocation was improper. The CR 60.02 motion did not request an evidentiary hearing.
Kentucky Rules of Criminal Procedure.
Kentucky Revised Statutes.
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Peterson's motion was denied by an order entered on April 15, 2013, wherein the trial court found Peterson "was still on active probation" when the arrest warrant was issued on the special supervision report and the motion to revoke was filed. This appeal followed.
ANALYSIS
We review disposition of a CR 60.02 motion for an abuse of discretion. Brown v. Commonwealth, 932 S.W.2d 359, 362 (Ky. 1996). A trial court abuses its discretion when it renders a decision that is "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Peterson's sole argument on appeal is the trial court abused its discretion by revoking his probation after it had expired and then denying his CR 60.02 motion. More precisely, Peterson argues the trial court's January 17, 2012, order of revocation was impermissibly entered after his probationary period had expired on May 9, 2011. In contrast, the Commonwealth maintains Peterson's probationary period was tolled by multiple probation violations—namely, his failure to pay court costs and his acquisition of new criminal charges.
Probationary periods are fixed by the trial court and may be shortened or extended, but in any case shall not exceed five years. KRS 533.020(4). "A period of probation or conditional discharge commences on the day it is imposed." KRS 533.040. To revoke or modify probation, the trial court must conduct a hearing "with defendant represented by counsel and following a written notice of the grounds for revocation or modification." KRS 533.050. It is firmly established that a trial court has jurisdiction to hold a revocation hearing only while the probationary period is active. Conrad v. Evridge, 315 S.W.3d 313 (Ky. 2010); Curtsinger v. Commonwealth, 549 S.W.2d 515 (Ky. 1977). Indeed, it has been held a trial court lacks jurisdiction to revoke probation even one day after a probationary period expires and any such judgment is a legal nullity. Grundy v. Commonwealth, 400 S.W.3d 752, 755 (Ky. App. 2013). Our Supreme Court has further clarified trial courts lack jurisdiction to revoke a defendant's probation after expiration of the probationary period, even when the defendant has stipulated to violating his probation. Conrad. The Supreme Court found this to be particularly true when any delay in holding the revocation hearing was not attributable to the defendant. Id.
Notwithstanding the requirement that revocations must take place before the probationary period expires, tolling of the probationary period is statutorily permitted when a defendant has been found to have violated the terms of his probation, but the court chooses to reinstate the probation. Specifically,
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.KRS 533.040(2).
The application and breadth of KRS 533.040's tolling provision has been much debated and analyzed. The Supreme Court has clarified the tolling provision of KRS 533.040 can be triggered only if two requirements are met: 1) the trial court must find a violation has occurred; and 2) the court must decide to reinstate —rather than revoke—probation. Conrad, 315 S.W.3d at 317. Thus, a probationary period cannot be tolled by a trial court order which either modifies the original probationary period or revokes it altogether. Id. at 318. In particular, a trial court order that "revoked the balance" of a probationary period and ordered incarceration for the remainder of the probationary period, was actually only a modification requiring incarceration as a condition of the original probationary period. Id. at 318. In contrast, a revocation would have reinstated the entire original sentence. The Court addressed this issue again in Commonwealth v. Dulin, 427 S.W.3d 170 (Ky. 2014), directing:
[i]t is possible, as in Conrad, to have a mid-probation incarceration. (sic) without the incarceration period counting as tolling time and thus extending the probationary period. However, because KRS 533.040(2) functions by operation of law, if the trial court intends for the probationary status to continue during such interim periods of incarceration, it should endeavor to make that intention explicit in the terms of the order imposing such conditions.Id. 427 S.W.3d at 176.
The record before us contains no formal finding of a probation violation during the five years after the judgment of conviction was entered. However, there are arrest warrants and notations leading us to believe periods of incarceration interrupted Peterson's probationary period such that merely counting five years on a calendar does not reveal the true expiration of the probationary period. While the trial court has stated Peterson "was still on active probation when the warrant was issued and the Motion filed," without more details, we simply cannot speculate on the basis of the trial court's finding. While Peterson may have committed violations sufficiently tolling his probationary period such that the trial court retained jurisdiction, there is no overt support for that conclusion in the record. Nor is there an order reinstating probation after any such violation(s). Nor is there an explicit statement that the probationary period was not tolled by the periods of confinement. Indeed, the record contains only one motion to revoke, and it was filed after May 9, 2011—the original date on which Peterson's probation would have expired had there been no interruptions. Additionally, the revocation hearing occurred four months after the filing of the motion to revoke. Thus, while it may appear upon first impression that the trial court may have lacked jurisdiction to revoke probation, we suspect there is a more detailed story capable of providing clarity.
Therefore, we remand to the trial court for additional findings consistent with Dulin—a case that was rendered during the pendency of this appeal. On remand, the trial court shall specify the period(s) of time Peterson's probationary period was interrupted by periods of confinement, if it was, and whether those periods of confinement tolled the probationary period so that it was extended beyond the original five-year date. We leave to the trial court any decision on whether to convene an evidentiary hearing.
For the foregoing reasons, the April 15, 2013, order of the Russell Circuit Court is remanded for additional findings consistent with this Opinion.
ALL CONCUR. BRIEFS FOR APPELLANT: Meredith Krause
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General
Wm. Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky