384 S.W.3d 195
Ky. Ct. App.2012Background
- Jarrell was charged with first-degree wanton endangerment, fourth-degree assault, and alcohol intoxication in a public place; he pled guilty under an offer including probation with strict no-alcohol/no-drug conditions.
- Final judgment sentenced him to five years (wanton endangerment) and one year (assault), to be served concurrently, with five years of probation and conditions including reporting to Probation and Parole and drug testing.
- Two weeks after sentencing, a scheduling hearing noted a failed drug screen; the probation revocation hearing was scheduled two months later, with Jarrell present and counsel appointed.
- At the revocation hearing, a Probation and Parole Officer testified Jarrell violated probation by using oxycodone and signing an admission after failing to provide a urine sample.
- Jarrell’s counsel argued the ingestion likely occurred before sentencing and challenged the applicability of HB 463; the circuit court revoked probation, citing danger to society and need for incarceration.
- Jarrell appealed arguing due process issues and HB 463 compliance; the court affirmed, concluding no abuse of discretion in revoking probation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Jarrell deprived of due process due to notice failures? | Jarrell argues lack of written notice of conditions and grounds. | Jarrell contends failure to provide written notice violated KRS 533.030(5) and KRS 533.050(2). | No palpable error; oral notice at sentencing satisfied due process. |
| Was there sufficient proof Jarrell violated probation by oxycodone use? | Probation officer testified to a violation based on admission and failure to provide a sample. | Argues violation may have occurred before sentencing, not during probation. | Preponderance shown via officer testimony and Jarrell’s admission; revocation affirmed. |
| Did HB 463 require different sanctions or affect the revocation? | HB 463 favors graduated sanctions over revocation. | Legislation allows incarceration where warranted; court can revoke for serious risk. | Court acted within statute; incarceration permissible where risk to public warranted. |
Key Cases Cited
- Miller v. Commonwealth, 329 S.W.3d 358 (Ky.App.2010) (probation revocation standard; preponderance of evidence required)
- Tiitsman v. Commonwealth, 509 S.W.2d 275 (Ky.1974) (knowledge of probation conditions not required for revocation relevance)
- Messer v. Commonwealth, 754 S.W.2d 872 (Ky.App.1988) (notice requirement; appearance with counsel suffices; non-preserved errors evaluated)
- Hunt v. Commonwealth, 326 S.W.3d 437 (Ky.2010) (palpable error for lack of sworn testimony; improper burden shifting)
- Bowling v. Commonwealth, 981 S.W.2d 545 (Ky.1998) (palpable error standard for appeal)