Commonwealth v. Alleman
306 S.W.3d 484
Ky.
2010
Check Treatment

*1 Kentucky, COMMONWEALTH

Appellant, ALLEMAN, Everett

Lawrence

Appellee.

No. 2007-SC-000570-DG. Kentucky.

Supreme Court of

March General, Conway, Attorney

Jack Joshua General, Attorney Farley, D. Assistant Frankfort, KY, Appellant. Counsel for II, Roy Alyette Assistant Durham Pub- Advocate, lic Public Department of Advo- Frankfort, KY, cacy, Appellee. Counsel Opinion by of the Justice Court VENTERS. Kentucky peti- Commonwealth discretionary

tioned this Court for of a of Appeals opinion vacating order of the Hardin Circuit Court which Everett revoked Lawrence Alle- granted man’s discretion- ary review to decide if a trial court’s find- ings of fact and reasons orally entered the record from satisfy process bench are sufficient to Brewer, in Morrissey as set forth 33 L.Ed.2d (1972),1 which requires a trial court “a produce written statement fact- finders as to the relied on revoking parole.” reasons for Id. 92 S.Ct. 2593.

We conclude oral rea- sons revocation as stated trial court from the bench at the conclusion a Morrissey Although Monissey’s involved revo cation, Gagnon v. Scarpelli, 411 U.S. bation revocations. 36 L.Ed.2d 656 extended *2 process rights, presuming din Circuit Court issued a warrant for revocation, and reasons when Appellee’s arrest for violation of proba- his they by a preserved are reliable means tion for absconding super- allow sufficiently complete parties to vision. Appellee was arrested on Novem- reviewing to courts determine the ber 2005.3 facts relied and the reasons for revok- 20, 2006, On June a probation revocation ing probation. accordingly reverse the hearing recording was held. A video reinstate the hearing pursuant was made to CR the order the Hardin Circuit Court re- the recording is before this At Court. voking Appellee’s probation. Com- monwealth presented of a testimony BACKGROUND County Hardin Probation and Parole offi- 29, 2003, On a August County Hardin who cer testified that following Alleman’s grand jury indicted Alleman for two counts prison, release from report he did not to to complicity obtaining commit a con- County the Hardin Probation and Parole fraud, trolled substance false statement in office violation of his terms of arrest; or one forgery; count of resisting He also testified he had communicat- being first-degree persistent and of felo- parole assigned officer to the 8, 2004, ny On April Appellee offender. case, Montgomery County who informed pled guilty charges, all for which he was him that Alleman was in violation of his sentenced to a total of twelve years of parole terms of in proceeding. He imprisonment, with probated the sentence further testified that Alleman was eventu- years. for five This sentence was to run ally captured hiding in his resi- sister’s to prior consecutive Mont- sentence from in County. dence Menifee novel Alleman’s gomery County.2 sentencing The order in defense was to the effect because County the Hardin case listed the condi- County Hardin sentence was to be served Appellee’s tions of probation, including, consecutively preexisting Montgom- to the “10. Report to the probation officer as case, ery County obligated he was not rules, all comply directed with written begin serving County his Hardin proba- regulations or stipulations imposed by him tion, report was not obligated thus Department Corrections, Divi- in, until completed he had his Montgomery sion of Probation Parole.” County by parole sentence serve-out. later, Seven months on November At the conclusion of the the trial Appellee was on parole released Appellee’s probation, court revoked stat- Montgomery County case. He ing, “I think it is go checked in with reasonable to ahead parole his officer his case; however, Montgomery and revoke for the Hardin time County County he report County given failed to to the Hardin that he had absconded from supervi- Of- fice of for a significant period Probation and Parole to address his sion time.” The probation supervision Appellee’s probation the Hardin order stated 29, 2005, County July case. On the Har- that “Defendant has violated terms his/her sentencing Appellee's At the time of the Hardin record indicates that County serving years was five in Montgomery County case was revoked 8, 2003, August for an conviction in Mont- separate proceeding grounds. in a on different gomery County. Montgomery See Circuit No. Case 01-CR-00148. (f) of At issue in this case is provided ...” no other but Momssey requiring factors revoking probation. facts make a statement iden- trial court *3 the order of reversed The Court evidence relied on and reasons tifying the and remand Appellee’s probation revoking ex- It has been revoking findings for written it the trial court ed to require- plained that the written statement Morrissey, facially required by of fact as review, provides appellate a ment basis for However, 471, 92 as 408 U.S. S.Ct. in fact encouraging accuracy well as as below, a re conclude that discussed we 606, Romano, 471 finding. Black v. U.S. the by trial court of corded oral recitation 613-14, 2254, 85 L.Ed.2d 636 105 S.Ct. revocation, if oth and reasons for findings (1985). Romano, here, parolee, In as sufficient, applicable satisfies erwise citing Momssey, contended that the court process requirements. pro- parole revoked his had not which had Ro adequate vided an written statement. OF held, however, ORAL FINDINGS RECORDED memoran “[t]he mano sentencing AND REASONS FOR REVO- prepared by the court FACT dum hearing provided the transcript ARE SUFFICIENT TO the CATION of explaining the necessary written statement SATISFY PROCESS UNDER DUE upon the reason for evidence relied MORRISSEY Id. probation.” to revoke 489, 92 408 U.S. at Morrissey, In added). Thus, signals (Emphasis Rosnano 786, 2593, 411 at Gagnon, S.Ct. U.S. something explicit other than an writ Supreme 93 States the United S.Ct. may signed by judge ten the trial order minimum Court set out the satisfy In Momssey requirement. afforded a of that must be fact, Momssey Supreme in stat a hear at revocation defendant to an thought had “no create ed it ing. parole inflexible structure for (a) notice of the They include at procedures.” Morrissey, U.S. or) (probation pa- of claimed violations Rather, principal its con S.Ct. (b) role; (probationer to disclosure rec adequate cern was the “absence of or) him; (c) against of parolee judicial ord” which would enable opportunity person to be heard parole the reasons for revocation. Id. documentary evi- present witnesses Momssey When was decided (d) dence; to confront and right hearings and lower court (unless witnesses cross-examine adverse ceedings frequently were conducted specifically the hearing finds officer who not judges or officers were good allowing cause for not confronta- law often trained in the without (e) tion); and detached’ hear- ‘neutral a court There exist- reporter. services of ing a traditional body such as practical ed no for a court re- substitute board, of which need not be members porter. practical There was no means (f) judicial lawyers; and officers recording, and audio re- courtroom video by the as written statement factfinders cording generally not avail- equipment was evidence relied on and reasons was, therefore, able. The written order or) parole. revoking (probation documenting appel- the best means Gagnon, transpired. U.S. at S.Ct. late review what had Without facts, judi- 408 U.S. at 92 a written statement of (quoting Morrissey, added). 2593) impossible. (Emphasis nearly cial review was bench, findings long made from as as States Circuit Courts Several United the inflexi- away adequate, moved from Appeal have otherwise cannot the due of a formalistic written ble process requirement Marrissey, at least only court as the order here, where, possess as a video record Morrissey. See satisfying method of Unit- sufficiently complete is allow (6th Gilbert, 990 F.2d 916 States v. parties and us to determine “the evidence Cir.1993) (District recitation of judge’s oral relied on and the reasons for revoking bench, in of revoca- probation.” release, re- supervised satisfied tion 2254; Barth, 899 F.2d at 201. “The *4 that “written statement” be quirement requiring for a written basis statement of hearing was tran insofar as provided, facts is to ensure accurate fact finding and verbatim.); Cop v. United States scribed adequate ‘an for provide basis review to Cir.1992) (Tran (4th ley, 978 F.2d if the decision permissi- determine rests on “written finding oral can serve as scribed grounds supported by ble the evidence.’” of evidence and reasons statement” Romano, Yancey, 827 at 89 (quoting F.2d under due revoking supervised release 2254). 613-14, at U.S. We transcript and record process claim when goals believe these are satisfied when the trial enables review compiled judge before findings oral and reasons for revocation as court to determine basis of trial court’s ing in the recorded video record enable a re- Barth, decision.); States v. United viewing court to determine the basis of the Cir.1990) (Trial (2d tran court’s F.2d Id.; judge’s probation. decision to revoke findings respect with to revo scribed oral Morishita, 210; also at see F.2d satisfied probation cation of defendant’s Barth, 899 F.2d at 202. requirement of “written state- due to evidence relied ment” fact finder as course, might differently Of rule revoking probation.); on and reasons “general conclusory were we faced with (7th Yancey, 827 F.2d 83 States United revoking court for [trial] Cir.1987) (Transcript findings of oral made Barth, 202; Lacey, probation,” 899 F.2d at revocation was suffi- probation at time of at or with a record from 648 F.2d court to deter reviewing cient to enable which we were “unable to determine decision.); Morishita judge’s mine basis court’s to re- basis of [trial] (10th Cir.1983) Morris, 702 F.2d 207 Smith, 767 F.2d at 524. probation.” voke (Written constitutionally re findings are situations, such to demand that But absent only transcript if the and record quired findings its oral a trial court turn judge who revokes before reasons for revocation into a written order reviewing not enable a court to de would seems formalistic. judge’s the basis of the decision to termine (previous 105 S.Ct. 2254 cases the rea probation.) agree revoke accommodate, while avoid- sought have explaining in these cases soning expressed ing imposition rigid requirements, why something other than a written order retaining interest in lib- may satisfy process requirements. erty preserving and the state’s interest accuracy of assuring its discretion and Extending reasoning Barth, proceedings); 899 F.2d at tape to an untranscribed video above cases recording,4 why we see no reason oral transcript, an untran- whereas we consider The federal cases cited address the lack of recording. light a written scribed video written order in revoking trial an oral ment the Hardin court made Circuit Court

In this from the bench at conclu- probation. Appellee’s provid- of the revocation sion findings ed the reason ABRAMSON, sitting. All At the the Common- probation. SCOTT, CUNNINGHAM, NOBLE and testimony evidence and presented

wealth JJ., concur. absconded from Appellee presented no supervision Appellee SCHRODER, J., by separate dissents countervailing (except for his MINTON, C.J., opinion joins. in which required novel defense that he was not court, in report parole). until off The trial SCHRODER, J., dissenting. turn, findings made the evidence of absconding probation super- Because I believe that oral that he vision indicated had violated fact are not sufficient to pro finding terms of his This Morrissey, respectfully under I must cess *5 matches with the condition of Brewer, Morrissey dissent. In 408 U.S. Appellee “[rjeport to the 471, 2593, (1972), 92 33 S.Ct. L.Ed.2d 484 comply and with all officer as directed 778, Gagnon v. Scarpelli, 411 U.S. rules, regulations or stipulations written 1756, (1973), 36 L.Ed.2d 656 by him imposed Department Supreme United States set out the Court Corrections, Division of Probation and Pa- minimum due Thus, recording proba- role.” of the must be afforded a proba- defendant at a pro- tion revocation this matter tion revocation hearing. require- These vides an record of the reasons ments include “a written statement in support factfinders as to the evidence relied on and Further, given by thereof. the reasons or) revoking (probation pa- reasons for the trial court to the revocation Gagnon, role.” 411 U.S. at 93 S.Ct. order provide grounds sufficient to revoke (quoting Morrissey, 408 U.S. at Appellee’s probation. Since was 2593). 92 S.Ct. fully of the findings, notified court’s of the revocation at basis In although this the trial court process requirement, expressed the due as an oral provided made in Morrissey, was satisfied. revoking probation, reason for there were said, clarify the above we hasten With reason, written findings setting no out that holding the intent of our not is and there were no findings oral or —either endorse an across-the-board abandonment provided written —that the evidence relied Morrissey require- of the written order on reaching that decision. The order requirement ment. Such a is not stated, revoking probation merely “the implemented burdensome and should be as Court finds that the Defendant has violat- part of a trial court’s routine ” probation.... terms of This his/her A process. written order facili- specific findings clearly lack vio- for all efficiency tates concerned in the lates the standard set out in Morrissey appellate process, and remains the Gagnon. As the United States Su- preferred practice. noted,

preme “The written Court state- CONCLUSION required by ment Gagnon Morrissey helps factfinding to insure accurate Accordingly, reverse the Court judg- any decision and reinstate the respect alleged violation an adequate vides basis for review to de COHRON, David Appellant,

termine if the decision Thomas permissible rests grounds supported by the evidence.” 606, 613-14, Black v. 471 U.S. Kentucky, COMMONWEALTH of (1985). L.Ed.2d 636 Appellee. Supreme When the United States No. 2007-SC-000483-MR. has interpreted the U.S. Constitution as guaranteeing certain minimum individual Supreme Kentucky. rights, a may grant state its citizens more March rights, but a state may go not below that federal floor. See Commonwealth v. Was

son, (Ky.1992); S.W.2d Cray Commonwealth,

ton v. 846 S.W.2d

(Ky.1992) C.J., (Stephens, dissenting). in Morrissey is clear: to

satisfy a parolee pro

cess rights during a revocation hearing, provide trial court must a written

statement that contains two items: revoking probation

reasons for or parole, *6 the evidence upon. relied As the noted,

Commonwealth the trial court can

simply enter a written order expressing

what it orally. stated Such a

is not burdensome and ensures parolee’s or probationer’s

rights are not violated. I

Accordingly, would affirm the judg-

ment of the and remand

to the Hardin Circuit Court for a written that details the re-

voking Alleman’s and the evi- upon.

dence relied

MINTON, C.J., joins opinion. this