Opinion
NO. 2011-CA-001768-MR
02-22-2013
PATRICIA TOWNSEND APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Ryan D. Brunson Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Jason B. Moore Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE FRED A. STINE, V, JUDGE
ACTION NO. 09-CR-00425
OPINION
REVERSING AND REMANDING
BEFORE: ACREE, CHIEF JUDGE; DIXON AND VANMETER, JUDGES. ACREE, CHIEF JUDGE: Patricia Townsend appeals the Campbell Circuit Court's revocation of her probation. We conclude the revocation hearing did not afford Townsend the protections of due process to which she was entitled because she was not permitted to confront or cross-examine adverse witnesses. We reverse and remand.
I. Background
Townsend pleaded guilty to one count of obtaining a controlled substance by fraud or false statements, and on April 16, 2010, was sentenced to five years' imprisonment. The sentence was to be probated, provided that Townsend complied with a number of conditions, including compliance with mental health and drug treatment programs and abstention from the use of drugs and alcohol.
Townsend's probation officer, Officer Jeff Martin, first filed an affidavit alleging Townsend had violated the terms of her probation on April 13, 2011. The officer alleged therein that Townsend had used methadone, failed to follow the recommendations of her aftercare program, and had been terminated from the aftercare program for failing to comply with those recommendations. Townsend admitted that the probation officer's first two allegations were accurate. The circuit court declined to revoke her probation, but ordered her to serve ninety days in the county jail and to continue her probation thereafter. The order warned, "[Townsend] is admonished that no further violations of her probation will be tolerated." (Circuit court record, p. 73).
This arrangement is referred to as a "split sentence." KRS 533.030(6), Kentucky Crime Commission/LRC Commentary.
Townsend completed her ninety-day sentence on July 10, 2011. A short time after she returned home from incarceration, police were called to the home she shared with her son, her son's girlfriend, and that couple's small children. Someone in Townsend's household had contacted the Florence Police Department with an accusation that Townsend consumed alcohol and was causing a disturbance. The responding officers made no arrests. The Florence Police Department, however, did report the incident to Townsend's probation officer, Officer Martin.
Officer Martin prepared an affidavit detailing the most recent incident and filed it with the circuit court. The Commonwealth moved to revoke Townsend's probation. The circuit court conducted an evidentiary hearing. At the hearing, the Commonwealth's only witness was Officer Martin, and all of his testimony was hearsay. He read from a "run report" of the Florence Police Department which documented the call to the dispatcher accusing Townsend of intoxication. Officer Martin also testified that he had spoken with the girlfriend of Townsend's son, who stated Townsend had been intoxicated on the night in question.
Townsend testified in her own defense. She denied consuming any alcohol.
The circuit court found Townsend had violated the conditions of her release by consuming alcohol. Her probation was revoked; part of the reason for the revocation was that "[Townsend] was admonished on her previous appearance that no further violations would be tolerated[,] and it is plain that the [circuit court's] warning was not heeded." (Circuit court record, p. 82). She was remanded to custody for the completion of her sentence.
Townsend appealed. She argues that her revocation hearing deprived her of minimal due process rights and that the Commonwealth's evidence was insufficient to warrant revocation.
II. Standard of review
We review a circuit court's decision to revoke probation for abuse of discretion. Lucas v. Commonwealth, 258 S.W.3d 806, 807 (Ky. App. 2008) (citation omitted). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Id. (quoting Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).
As the Commonwealth notes, unpreserved claims of deprivation of due process in an appeal from a revocation of probation are reviewed under the palpable error standard. RCr 10.26; Hunt v. Commonwealth, 326 S.W.3d 437, 440 (Ky. 2010). Townsend concedes there was no objection before the circuit court concerning the matter of due process she raises here. However, a "circuit court's failure to comply with the minimum requirements of due process is exactly the type of error to which the 'manifest injustice' standard of RCr 10.26 was meant to apply." Id. at 440. A deprivation of due process ordinarily requires reversal even of an unpreserved error.
With these standards in mind, we turn to the parties' arguments.
III. Discussion
a. Minimum due process: confrontation and cross-examination of adverse witnesses
Townsend contends she was deprived of the right to confront and cross-examine the witnesses against her because the accusations upon which her probation officer and the circuit court relied were unreliable hearsay. Given the specific nature of the evidence at issue, we agree.
Among other rights, minimal due process in revocation proceedings affords probationers the right of "confrontation and cross-examination of witnesses (unless a specific finding for good cause is made to the contrary)[.]" Murphy v. Commonwealth, 551 S.W.2d 838, 840 (Ky. App. 1977). However, revocation proceedings are informal, and the rules of evidence do not apply. Hunt, 326 S.W.3d at 439. As a result, hearsay evidence is admissible, and the Commonwealth's burden of proof is only a preponderance of the evidence. Id.; Marshall v. Commonwealth, 638 S.W.2d 288, 289 (Ky. App. 1982).
But there are limits to how informal the proceedings can be. "[T]here is no absolute right to confront witnesses . . . when the reliability of the witnesses . . . can be easily ascertained." Marshall, 638 S.W.2d at 289. In Marshall, the probation officer read a letter from the director of the defendant's drug treatment program which represented that the defendant had violated the terms of her probation; this Court described her as "trained personnel in an organized drug abuse program[.]" Id. Because of the training and neutrality of the non-testifying witness, the officer's reading of her letter was acceptable hearsay testimony. Furthermore, the witnesses in Marshall "were [clearly] unavailable, being in Columbus, Ohio[,] and outside the court's jurisdiction[.]" Id. For these reasons, this Court concluded, the circuit court's reliance on hearsay testimony did not constitute a deprivation of the defendant's due process right to confrontation and cross-examination.
No such factors were present here. There was no evidence that the girlfriend of Townsend's son was a reliable witness. In fact, the Commonwealth offered no information about the girlfriend apart from her residence and her report that Townsend had been intoxicated. If the girlfriend did possess such credentials as those at issue in Marshall, or other qualities which would render her report reliable, the Commonwealth failed to place those facts in the record. Additionally, the witness was not outside the court's jurisdiction because she resided in Florence. Compelling her presence and testimony would have created a minimal burden and would not have altered the informal nature of the proceedings; rather, it would have ensured that Townsend received the minimal due process right of confrontation and cross-examination of the adverse witness.
The run report, portions of which Officer Martin read into the record, contained even less certain evidence of Townsend's supposed intoxication. All it indicated was that someone in Townsend's residence had reported to police that Townsend was intoxicated. Officer Martin could not confirm that any of the responding officers observed indicia of intoxication because he never spoke with them. Instead, he merely confirmed with the dispatcher and the responding officers' supervisor that such a call had been made asserting the accusation. Certainly, had Officer Martin reported that the responding officers had told him they had observed Townsend and believed she was intoxicated, his testimony would have been the type of hearsay evidence from reliable witnesses which comported with Marshall.
While Officer Martin was certainly a reliable source of information, his credibility could add nothing to the veracity of the hearsay information he conveyed. The circuit court's reliance only upon such unreliable evidence constitutes palpable error and mandates reversal.
b. Sufficiency of evidence
We need not address Townsend's argument concerning the sufficiency of the evidence because the constitutional issue is dispositive.
IV. Conclusion
The unreliable hearsay evidence presented by the Commonwealth deprived Townsend of her due process right to confront and cross-examine adverse witnesses at her probation revocation hearing. We reverse and remand this case for a rehearing of Townsend's probation revocation.
ALL CONCUR. BRIEFS FOR APPELLANT: Ryan D. Brunson
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Jason B. Moore
Assistant Attorney General
Frankfort, Kentucky