RENDERED: DECEMBER 17, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0002-MR
BRANDON HART APPELLANT
APPEAL FROM LETCHER CIRCUIT COURT v. HONORABLE JAMES W. CRAFT, II, JUDGE ACTION NO. 19-CR-00466
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, CETRULO, AND JONES, JUDGES.
CETRULO, JUDGE: The Letcher Circuit Court revoked Appellant Brandon
Hart’s probation for failing to successfully complete a drug court program. We
find the revocation was not an abuse of discretion because (1) there was sufficient
evidence to support finding that Hart had violated the terms of his probation, and
(2) Hart was afforded all rights to which he was entitled. We affirm. FACTUAL AND PROCEDURAL HISTORY
In a judgment entered in July 2020, Appellant Hart pled guilty to
possession of a controlled substance, terroristic threatening, retaliating against a
participant in the legal process, and additional misdemeanor charges. As a result
of a plea agreement, Hart’s five-year prison sentence was probated for five years
subject to various conditions, including successful completion of the Letcher
County Drug Court Program.
As part of his drug court enrollment, Hart signed an Agreement of
Participation (“Agreement”). This Agreement stated, in pertinent part, that
sanctions for rule violations could include jail time or program termination; and
sanctions “will be imposed immediately without a formal, adversarial hearing[.]”
The Agreement also waived his rights to compel the attendance of witnesses, to
produce evidence, and to confront and cross-examine witnesses.
Hart failed two drug tests in June 2020; as a sanction for these
violations, Hart entered a 30-day rehab. He successfully completed the rehab and
passed all drug tests during that rehab.
Hart then failed an August 7, 2020 drug test. Following this positive
drug screen, Hart was formally terminated from the Letcher County Drug Court
Program effective September 1, 2020. Thereafter, the Commonwealth moved to
revoke Hart’s probation. As grounds for its motion, the Commonwealth asserted
-2- that Hart’s probation terms required Hart to successfully complete drug court, and
his termination from the program made it impossible for Hart to comply.
At his probation revocation hearing, Hart attempted to introduce two
clean drug screenings taken August 6 and August 7, which were collected and
tested by his family physician (discussed in more detail below), but the circuit
court refused to admit the screens. After Hart’s drug court termination, the
Commonwealth filed a motion to revoke Hart’s probation. A probation revocation
hearing was held in October 2020. At that hearing the Commonwealth presented
only one witness, Robert Kinzer (“Kinzer”), the supervisor of the drug court
program. Hart was represented by counsel but presented no witnesses. The
Letcher Circuit Court revoked Hart’s probation in a December 2020 order.
ANALYSIS
On appeal of a probation revocation, the standard of review is whether
the trial court abused its discretion. Blankenship v. Commonwealth, 494 S.W.3d
506, 508 (Ky. App. 2015) (citing Lucas v. Commonwealth, 258 S.W.3d 806, 807
(Ky. App. 2008)).
To amount to an abuse of discretion, the trial court’s decision must be arbitrary, unreasonable, unfair, or unsupported by sound legal principles. And an appellate court will not hold a trial court to have abused its discretion unless its decision cannot be located within the range of permissible decisions allowed by a correct application of the facts to the law.
-3- Id. at 508 (internal quotation marks and citation omitted).
Additionally, we must review for palpable error to determine if a
minimum level of due process was met. Sullivan v. Commonwealth, 476 S.W.3d
260, 263 (Ky. App. 2015). See also Miller v. Commonwealth, 329 S.W.3d 358,
359-60 (Ky. App. 2010) and Kentucky Revised Statute 533.050(2). (Palpable
errors are those substantial errors which affect the substantial rights of a party, and
may be considered by the court even though insufficiently raised or preserved for
review. Kentucky Rules of Criminal Procedure (RCr) 10.26.)
On appeal, Hart contends that the trial court violated his due process
rights when it revoked his probation. In particular, he argues the trial court
deprived him of his due process rights when it (1) prevented Hart from
meaningfully presenting (this is clarified below) the clean drug test results from
August 6 and 7; and (2) prevented Hart from adequately cross-examining Kinzer.
First, Hart argues he should have been permitted to meaningfully
introduce the two clean drug tests to bolster his claim that the August 5 drug court
test was a false positive. At the probation revocation hearing, the trial court
initially denied admission of the clean screenings because the court found the
Agreement waivers did apply to the probation revocation hearing. The trial court
stated that Hart made a knowing and voluntary waiver (by signing the Agreement)
of the right to contest the drug tests administered by the drug court. Hart argued
-4- the Agreement waivers should be applied only to drug court proceedings (i.e., drug
court termination), and not to the probation revocation. Regardless, the clean drug
tests were admitted at the end of the hearing. It is not clear from the record why
the trial court allowed the admission of the clean screenings after first denying
their admission, but nonetheless, the clean drug screenings were eventually
admitted.
Second, Hart argues the trial court prevented him from adequately
cross-examining Kinzer about (a) the cheek-swab process of the August 5 drug
test, and (b) why Kinzer changed his recommendation from long-term drug
rehabilitation to revocation. Hart wanted to cross-examine Kinzer about the
validity of the cheek-swab test by first probing into his knowledge of those tests.
But, the trial court sustained the Commonwealth’s objection to the questioning due
to Kinzer’s “lack of expertise.” Although Hart argued that the rules of evidence
regarding expert testimony did not apply to probation revocation hearings, the
court did not allow that line of questioning.
Also, during the probation revocation hearing, Hart questioned Kinzer
about his change of recommendation. Initially, after the August 5 failed drug test,
Kinzer had recommended a long-term drug rehabilitation facility. However,
without further communication between Hart and the drug court (or Kinzer),
Kinzer changed the recommendation to termination from the drug court program.
-5- Hart wanted to ask questions as to why Kinzer changed his recommendation, but
the Commonwealth objected, and the court sustained the objection.
Because we are reviewing for palpable error, it is not necessary to
determine (1) if the Agreement was binding on the probation revocation, (2) if the
clean drug tests should have been meaningfully admitted, or (3) if sustaining an
objection on the expertise grounds should have been permissible during probation
revocation proceedings. Probation revocation hearings require less proof than a
criminal trial, Gagnon v.
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RENDERED: DECEMBER 17, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0002-MR
BRANDON HART APPELLANT
APPEAL FROM LETCHER CIRCUIT COURT v. HONORABLE JAMES W. CRAFT, II, JUDGE ACTION NO. 19-CR-00466
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, CETRULO, AND JONES, JUDGES.
CETRULO, JUDGE: The Letcher Circuit Court revoked Appellant Brandon
Hart’s probation for failing to successfully complete a drug court program. We
find the revocation was not an abuse of discretion because (1) there was sufficient
evidence to support finding that Hart had violated the terms of his probation, and
(2) Hart was afforded all rights to which he was entitled. We affirm. FACTUAL AND PROCEDURAL HISTORY
In a judgment entered in July 2020, Appellant Hart pled guilty to
possession of a controlled substance, terroristic threatening, retaliating against a
participant in the legal process, and additional misdemeanor charges. As a result
of a plea agreement, Hart’s five-year prison sentence was probated for five years
subject to various conditions, including successful completion of the Letcher
County Drug Court Program.
As part of his drug court enrollment, Hart signed an Agreement of
Participation (“Agreement”). This Agreement stated, in pertinent part, that
sanctions for rule violations could include jail time or program termination; and
sanctions “will be imposed immediately without a formal, adversarial hearing[.]”
The Agreement also waived his rights to compel the attendance of witnesses, to
produce evidence, and to confront and cross-examine witnesses.
Hart failed two drug tests in June 2020; as a sanction for these
violations, Hart entered a 30-day rehab. He successfully completed the rehab and
passed all drug tests during that rehab.
Hart then failed an August 7, 2020 drug test. Following this positive
drug screen, Hart was formally terminated from the Letcher County Drug Court
Program effective September 1, 2020. Thereafter, the Commonwealth moved to
revoke Hart’s probation. As grounds for its motion, the Commonwealth asserted
-2- that Hart’s probation terms required Hart to successfully complete drug court, and
his termination from the program made it impossible for Hart to comply.
At his probation revocation hearing, Hart attempted to introduce two
clean drug screenings taken August 6 and August 7, which were collected and
tested by his family physician (discussed in more detail below), but the circuit
court refused to admit the screens. After Hart’s drug court termination, the
Commonwealth filed a motion to revoke Hart’s probation. A probation revocation
hearing was held in October 2020. At that hearing the Commonwealth presented
only one witness, Robert Kinzer (“Kinzer”), the supervisor of the drug court
program. Hart was represented by counsel but presented no witnesses. The
Letcher Circuit Court revoked Hart’s probation in a December 2020 order.
ANALYSIS
On appeal of a probation revocation, the standard of review is whether
the trial court abused its discretion. Blankenship v. Commonwealth, 494 S.W.3d
506, 508 (Ky. App. 2015) (citing Lucas v. Commonwealth, 258 S.W.3d 806, 807
(Ky. App. 2008)).
To amount to an abuse of discretion, the trial court’s decision must be arbitrary, unreasonable, unfair, or unsupported by sound legal principles. And an appellate court will not hold a trial court to have abused its discretion unless its decision cannot be located within the range of permissible decisions allowed by a correct application of the facts to the law.
-3- Id. at 508 (internal quotation marks and citation omitted).
Additionally, we must review for palpable error to determine if a
minimum level of due process was met. Sullivan v. Commonwealth, 476 S.W.3d
260, 263 (Ky. App. 2015). See also Miller v. Commonwealth, 329 S.W.3d 358,
359-60 (Ky. App. 2010) and Kentucky Revised Statute 533.050(2). (Palpable
errors are those substantial errors which affect the substantial rights of a party, and
may be considered by the court even though insufficiently raised or preserved for
review. Kentucky Rules of Criminal Procedure (RCr) 10.26.)
On appeal, Hart contends that the trial court violated his due process
rights when it revoked his probation. In particular, he argues the trial court
deprived him of his due process rights when it (1) prevented Hart from
meaningfully presenting (this is clarified below) the clean drug test results from
August 6 and 7; and (2) prevented Hart from adequately cross-examining Kinzer.
First, Hart argues he should have been permitted to meaningfully
introduce the two clean drug tests to bolster his claim that the August 5 drug court
test was a false positive. At the probation revocation hearing, the trial court
initially denied admission of the clean screenings because the court found the
Agreement waivers did apply to the probation revocation hearing. The trial court
stated that Hart made a knowing and voluntary waiver (by signing the Agreement)
of the right to contest the drug tests administered by the drug court. Hart argued
-4- the Agreement waivers should be applied only to drug court proceedings (i.e., drug
court termination), and not to the probation revocation. Regardless, the clean drug
tests were admitted at the end of the hearing. It is not clear from the record why
the trial court allowed the admission of the clean screenings after first denying
their admission, but nonetheless, the clean drug screenings were eventually
admitted.
Second, Hart argues the trial court prevented him from adequately
cross-examining Kinzer about (a) the cheek-swab process of the August 5 drug
test, and (b) why Kinzer changed his recommendation from long-term drug
rehabilitation to revocation. Hart wanted to cross-examine Kinzer about the
validity of the cheek-swab test by first probing into his knowledge of those tests.
But, the trial court sustained the Commonwealth’s objection to the questioning due
to Kinzer’s “lack of expertise.” Although Hart argued that the rules of evidence
regarding expert testimony did not apply to probation revocation hearings, the
court did not allow that line of questioning.
Also, during the probation revocation hearing, Hart questioned Kinzer
about his change of recommendation. Initially, after the August 5 failed drug test,
Kinzer had recommended a long-term drug rehabilitation facility. However,
without further communication between Hart and the drug court (or Kinzer),
Kinzer changed the recommendation to termination from the drug court program.
-5- Hart wanted to ask questions as to why Kinzer changed his recommendation, but
the Commonwealth objected, and the court sustained the objection.
Because we are reviewing for palpable error, it is not necessary to
determine (1) if the Agreement was binding on the probation revocation, (2) if the
clean drug tests should have been meaningfully admitted, or (3) if sustaining an
objection on the expertise grounds should have been permissible during probation
revocation proceedings. Probation revocation hearings require less proof than a
criminal trial, Gagnon v. Scarpelli, 411 U.S. 778, 786-87, 93 S. Ct. 1756, 1762, 36
L. Ed. 2d 656 (1973), but certain minimal requirements of due process still apply
because of the potential deprivation of liberty. Hunt v. Commonwealth, 326
S.W.3d 437, 439 (Ky. 2010) (citing Gagnon, 411 U.S. at 782, 93 S. Ct. at 1760).
The minimum due process required at such proceedings includes: (1) written
notice of the alleged violations; (2) disclosure of the evidence against the
probationer; (3) the opportunity to be heard; (4) the opportunity to confront and
cross-examine witnesses (unless good cause is found to disallow confrontation);
(5) a hearing conducted by a neutral or detached hearing body; and (6) receipt of a
written statement as to the evidence relied on in revoking probation. Sullivan, 476
S.W.3d at 263 (citing Gagnon, 411 U.S. at 786, 93 S. Ct. at 1761-62).
Herein, Hart was fully informed of the charges against him, the
reasons for his drug court termination, and the reasons the Commonwealth moved
-6- to terminate his probation. Hart was represented by legal counsel at his probation
revocation hearing. At the hearing, he had an opportunity to call witnesses (but
chose not to), and to cross-examine the Commonwealth’s witness. The
Commonwealth only called one witness, Kinzer, and the Commonwealth
questioned him for six minutes and 25 seconds. The Commonwealth objected
twice during Hart’s cross-examination of Kinzer (and the court sustained both), but
Hart still questioned Kinzer for three minutes and 15 seconds. Hart ended
questioning by his own choice. Even if we disagreed with the court’s decision to
sustain the Commonwealth’s objections, those decisions would not rise to the level
of palpable error. Hart was afforded all the requisite due process required by
Gagnon.
At a probation revocation hearing, the Commonwealth only has to
prove, by a preponderance of the evidence, that there was a probation violation.
Hunt, 326 S.W.3d at 439. During Hart’s time in drug court, he failed three drug
tests. Hart argues one drug court test was a false positive, but even removing that
contested test from consideration, that still leaves two uncontested failed drug tests.
Under the terms of the Agreement, two failed drug tests are enough to warrant
sanctions. Sanctions could result in termination from the specialty court
“immediately” and “without a formal hearing.” Termination from the drug court
program is a violation of Hart’s probation. Additionally, Kinzer testified that
-7- “[t]here’s multiple different violations that [Hart] has had in the program, that I
have here, that contributes to overall dishonesty while in the program.” (Hearing
10/21/20, 12:13:33). This dishonesty alone would have been sufficient to warrant
sanctions and/or termination from the drug court program.
CONCLUSION
We find the probation revocation was not arbitrary, unreasonable,
unfair, or unsupported. The hearing met a minimum level of due process required
for probation revocations. For the foregoing reasons, we AFFIRM.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Ryan D. Mosley Daniel Cameron Prestonsburg, Kentucky Attorney General of Kentucky
Christopher C. Bailey Frankfort, Kentucky
-8-