Opinion
NO. 2017-CA-000523-MR
05-11-2018
BRIAN WALTON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Brandon Neil Jewell Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Frankfort, Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NO. 15-CR-00129 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; JONES AND D. LAMBERT, JUDGES. KRAMER, CHIEF JUDGE: Brian Walton appeals from the Campbell Circuit Court's order revoking his probation. After careful review of the record and applicable law, we affirm.
FACTS AND PROCEDURAL BACKGROUND
In May 2015, Walton entered a guilty plea to receiving stolen property, over $500, and was sentenced to twelve months of imprisonment, which was probated for two years. The circuit court placed several conditions on Walton as part of his probation, including being evaluated for substance abuse, completing recommended treatment, and abstaining or possessing alcohol or illegal drugs.
In July 2015, Walton violated his probation by testing positive for opiates, failing to report for his scheduled drug screens, and failing to report for his scheduled probation appointment. These violations were reported by Walton's probation officer, Raymond Metz, who was employed by Commonwealth Mediation Services Inc. (CMS), in an affidavit to the circuit court. A warrant for Walton's arrest was issued for the probation violations. In December 2015, Walton was arrested pursuant to the July 2015 warrant. A hearing to revoke Walton's probation was held, and the circuit court ordered that his probation not be revoked. However, as a condition of his probation, Walton was to complete all steps of an intensive outpatient substance abuse program (IOP). Walton was sanctioned also for his probation violation, which required him to serve sixty days of confinement in the Campbell County Detention Center with jail time credited from the day he arrived.
In November 2016, Metz filed another affidavit stating that Walton had again violated his probation. In his statement, Metz explained that in October 2016, Walton came to CMS for his drug screen. Metz escorted Walton to the restroom for him to produce a urine sample. Once in the restroom, Metz saw an elastic band around Walton's lower abdomen area. When Walton was asked to pull down his pants so that Metz could ensure that he was not using something to smuggle urine, he refused to do so and left the building. Thereafter, an arrest warrant was issued for Walton, and he was arrested in February 2017.
A hearing to revoke Walton's probation was subsequently held. At the hearing, Duggin George, Metz's supervisor at CMS, was present to testify. George testified as to what Metz's affidavit said because Metz was not present at the hearing. George testified that per a conversation he had with Metz regarding the October incident, Metz had explained that he believed Walton to be wearing an artificial penis, known as the Whizzinator, due to the elastic band he saw around Walton's waist. This suspicion is what prompted him to tell Walton to pull down his pants. Counsel for Walton objected to this testimony, claiming that this form of hearsay was improper for probation revocation hearings. The circuit court overruled the objection and allowed the testimony.
Walton was present at the hearing and testified in his own defense. He testified that he did in fact refuse to lower his pants when asked to because he felt uncomfortable doing so without another individual in the room. When he asked Metz to have another person come into the bathroom, he alleges that Metz would not allow it and poured out the sample he had produced. He knew he would be written up but still decided to leave the premises. Walton clarified that he did not refuse because he distrusted Metz, but because he had a "bad experience" in the past. Walton admitted that he did not ask someone else at CMS to come into the bathroom before leaving so that he was more comfortable to prove that he was not wearing a Whizzinator.
Walton had been clean in his previous drug test at CMS. Nevertheless, he testified that he knew that a warrant would be issued for his arrest and knew that there had been a warrant issued. He never called CMS again or reported to any further appointments. He also testified that he was aware that the circuit court had previously ordered him to complete an IOP, but he did not do so because he claimed they told him he did not need it.
In its March 2017 order, the circuit court took judicial notice of the following: (1) Walton had violated his bond before trial by obtaining a new charge; (2) he had previously violated his probation by using drugs and failing to report; and (3) he remained on probation on the specific condition that he complete an IOP, which he failed to do. The circuit court also noted Walton's criminal history, which included assault fourth degree domestic violence, public intoxication, disorderly conduct, shoplifting, and driving under the influence of drugs. Ultimately, the circuit court found Walton to be a significant risk to the community and unmanageable, resulting in his probation being revoked.
From this order, Walton timely filed this appeal.
STANDARD OF REVIEW
A probation revocation is reviewed by this Court using the abuse of discretion standard.
The appellate standard of review of a decision to revoke a defendant's probation is whether or not the trial court abused its discretion. "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." 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) (internal citations omitted) (quoting Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).
ANALYSIS
On appeal, Walton asserts that: (1) the trial court erred in revoking his probation and should have imposed graduated sanctions; and (2) it was improper for the circuit court to revoke his probation based upon hearsay evidence that did not allow him to confront his accuser. We disagree with both of Walton's arguments.
The statute that governs sanctions for supervised individuals is KRS 439.3106, states:
Kentucky Revised Statute. --------
Supervised individuals shall be subject to:
(1) Violation revocation proceedings and possible 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.
Regarding Walton's first argument of graduated sanctions, the Supreme Court of Kentucky has held that:
KRS 439.3106 must be considered before probation may be revoked. If the court's order of probation was silent as to the imposition of graduated sanctions, the statute nevertheless applies upon consideration of probation revocation. By requiring trial courts to determine that a probationer is a danger to prior victims or the community at large and that he/she cannot be appropriately managed in the community before revoking probation, the legislature furthers the objectives of the graduated sanctions schema to ensure that probationers are not being incarcerated for minor probation violations.Commonwealth v. Andrews, 448 S.W.3d 773, 778-79 (Ky. 2014).
This Court has previously explained that, "[n]othing in the statute or in the Supreme Court's interpretation of it requires the trial court to impose lesser sanctions prior to revoking probation." McClure v. Commonwealth, 457 S.W.3d 728, 732 (Ky. App. 2015). In the present case, Walton had previously violated his probation by failing drug tests and failing to report. When those violations occurred, the circuit court gave him a second chance on the condition that he complete an IOP, which he failed to do. The circuit court considered that Walton was given a second opportunity and still did not comply with his probation conditions. The court determined that such sanctions would not likely work. Due to his previous noncompliance, the circuit court found Walton to be a significant risk to the community and unmanageable, which led to revoking his probation. Given the facts of this case, the circuit court did not abuse its discretion by revoking his probation instead of imposing graduated sanctions.
Walton's second argument asserts that the hearsay testimony was improper because it denied him the right to confront his accuser. The Supreme Court of Kentucky has stated that
[p]robation revocation proceedings are not part of the original criminal prosecution, and are thus more informal and require less proof than a criminal trial. For example, the Kentucky Rules of Evidence do not apply. KRE 1101(d)(5). In addition, the standard for revocation of probation is proof, by a preponderance of the evidence, that a violation has occurred.Hunt v. Commonwealth, 326 S.W.3d 437, 439 (Ky. 2010) (internal citations omitted).
In the present case, Walton contends that the testimony of George should not have been allowed because Metz was his actual probation officer who was with him at the incident; thus Walton's right to confront his accuser was violated. We disagree. This Court has held that, "there is no absolute right to confront witnesses [at a revocation hearing], especially when the reliability of the witnesses . . . can be easily ascertained." Sullivan v. Commonwealth, 476 S.W.3d 260, 264 (Ky. App. 2015) (internal citations and quotation omitted).
This Court has also remarked that, "[r]eliable hearsay testimony is permissible at probation revocation proceedings and a finding of a witness's unavailability is not required." Id. at 263 (citing Marshall v. Commonwealth, 638 S.W.2d 288, 289 (Ky. App. 1982)). "Furthermore, 'there is no independent investigation requirement for supervised release revocation cases' on the part of probation officers and 'a witness need not have firsthand knowledge of the underlying facts in order to testify competently at a revocation hearing.'" Id. at 264 (quoting United States v. Shakir, 574 Fed. Appx. 712, 714 (6th Cir. 2014)). Although George was not Walton's probation officer, he testified in his supervisory capacity and would be considered a reliable source. While testifying, George relied upon Metz's affidavit to the court, and a conversation they had about the incident.
Moreover, Walton's testimony supports the testimony given by George. Walton testified that he did in fact refuse to pull his pants down when asked to do so by Metz and that he left the premises without having given Metz a urine sample that Metz knew was not tainted. Thus, Walton's argument lacks merit. Therefore, the circuit court did not err in allowing the hearsay testimony.
Consequently, Walton's arguments fail under the abuse of discretion standard applied to reviewing probation revocation. This Court has held that, "[i]n this Commonwealth, probation is a privilege rather than a right. One may retain his status as a probationer only as long as the trial court is satisfied that he has not violated the terms or conditions of the probation." Id. at 263 (internal quotations and citations omitted).
Accordingly, the order of the Campbell Circuit Court is AFFIRMED.
ALL CONCUR. BRIEF FOR APPELLANT: Brandon Neil Jewell
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky
Frankfort, Kentucky Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky