Opinion
NO. 2014-CA-000166-MR
02-13-2015
RAYMOND WHITAKER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: John Gerhart Landon Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE FRED A. STINE, V, JUDGE
ACTION NO. 09-CR-00361
OPINION
AFFIRMING
BEFORE: CLAYTON, D. LAMBERT, AND JONES, JUDGES. JONES, JUDGE: Raymond Whitaker appeals from the December 27, 2013, order of the Campbell Circuit Court which granted the Commonwealth of Kentucky's motion to revoke Whitaker's probation. For the reasons more fully explained below, we affirm.
I. FACTUAL & PROCEDURAL BACKGROUND
Whitaker was indicted in 2009 on charges of first-degree wanton endangerment, driving under the influence with aggravator, and first-degree persistent felony offender (PFO I). Whitaker entered into a plea agreement, where the PFO I charge was amended to second-degree, and on November 19, 2009, Whitaker was sentenced to an eight year aggregate sentence, to be probated for a period of five years.
In 2011, Whitaker's probation officer filed an affidavit indicating that Whitaker had violated the terms of his probation. Following a probation revocation hearing, an order was entered on January 27, 2012, which declined to revoke Whitaker's probation.
The probation office filed a second affidavit in December of 2012, which indicated that Whitaker had again violated the terms of his probation, in part, by failing to report a new arrest within 72 hours. The trial court declined to revoke Whitaker's probation, but sanctioned him with sixty days in jail.
On October 9, 2013, the probation office filed a third affidavit filed which indicated that Whitaker had violated his probation by being convicted of a new felony, the basis of which was his 2012 arrest. As a result, the trial court revoked Whitaker's probation by order entered on December 27, 2013.
This appeal followed.
II. STANDARD OF REVIEW
We review a circuit court's decision revoking a defendant's probation for an abuse of discretion. See Miller v. Commonwealth, 329 S.W.3d 358, 359-60 (Ky. App. 2010). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Miller v. Eldridge, 146 S.W.3d 909, 914 (Ky. 2004).
III. ANALYSIS
Whitaker's first argument on appeal is that his probation was improperly revoked for conduct which took place prior to the date on which he was sentenced to probation. In support of this argument, Whitaker cites to the unpublished case of Northcutt v. Commonwealth, 2006-CA-002196-MR, 2007 WL 3227251 (Ky. App. Nov. 2, 2007).
The facts of Northcutt involve a defendant who had received a deferred judgment in favor of a diversion program, and was subsequently arrested while participating in that diversion program. As a result of failing to report his arrest, Northcutt's diversion was revoked and he received a two year sentence, to be probated for five years. Thereafter, Northcutt was convicted of the charge stemming from the unreported arrest and his probation officer resultantly sought revocation of his probation. This Court held that the trial court had abused its discretion when it revoked his probation on the basis of conduct that pre-existed the sentence of probation. Id.
First, we observe that Northcutt is an unpublished decision. We are not bound by unpublished opinions. Basin Energy Co. v. Howard, 447 S.W.3d 179, 188 (Ky. App. 2014). At our option, we may consult unpublished opinions for guidance when there is no published authority directly on point. See CR 76.28(4)(c).
Kentucky Rule of Civil Procedure
Moreover, we disagree that Northcutt is applicable herein. The defendant in Northcutt had not yet been sentenced to probation when he was arrested for the conduct which would serve as the basis for his post-probation conviction. Alternately, Whitaker was sentenced and received probation several years prior to the events which formed the basis of his violation and subsequent revocation. The distinction between the two cases is obvious, and we therefore hold that Whitaker's argument is without merit.
Whitaker's second argument is that he was subjected to double jeopardy by being punished twice for the same misconduct that brought about both his arrest and his conviction. Again, we disagree. Whitaker was not sanctioned for being arrested, but for failing to report that arrest in a timely manner. Failure to report an arrest is a distinct action which violated the conditions of Whitaker's probation. In addition, Whitaker's sanction was a result of several other probation violations, namely failure to report to his probation officer and failure to notify of an address change. Whitaker's revocation, however, was based upon the acquisition of a new criminal conviction, which was a separate violation of the conditions of his probation.
Moreover, as Whitaker himself concedes, the double jeopardy clause does not apply to probation revocation proceedings. See Kaletch v. Commonwealth, 396 S.W.3d 324, 326 (Ky. App. 2013). Despite Whitaker's request that we "reexamine precedent" and extend double jeopardy protection to his case, we decline to do so.
III. CONCLUSION
For the foregoing reasons, the December 27, 2013, order of the Campbell Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: John Gerhart Landon
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky