Clarence Barbour v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: October 13, 2022
• Docket: 2021 CA 001386
• Status: Unknown

Opinion

RENDERED: OCTOBER 14, 2022; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2021-CA-1386-MR

CLARENCE BARBOUR APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE MARY M. SHAW, JUDGE ACTION NO. 10-CR-003962

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: CALDWELL, CETRULO, AND COMBS, JUDGES.

CETRULO, JUDGE: Appellant Clarence Barbour (“Barbour”) appeals the

Jefferson Circuit Court order revoking his probation. Although Barbour met the

requirements for automatic discharge in July 2021, the trial court extended his

probationary period until it could hold a revocation hearing. As such, the trial

court retained jurisdiction to revoke Barbour’s probation. We affirm. I. FACTUAL AND PROCEDURAL HISTORY

In July 2011, Barbour pled guilty to one count of second-degree

assault and one count of third-degree terroristic threatening. In August of that

year, the trial court sentenced him to five years of incarceration, probated for five

years. Then, in April 2014, the Commonwealth moved to revoke Barbour’s

probation after the Division of Probation and Parole reported that Barbour had

absconded from supervision. However, Barbour failed to appear for the hearing

and the trial court issued a bench warrant for his arrest. Six months later – on

October 29, 2014 – when Barbour appeared on the matter, the trial court revoked

his probation. Then, in June 2015, the trial court granted Barbour shock probation.

A couple of years later, in late 2017, the Commonwealth again moved

to revoke Barbour’s probation, citing absconding; Barbour again failed to appear;

and the trial court again issued a bench warrant in November 2017. Nearly four

years later – on July 28, 2021 – Barbour appeared on that bench warrant (the “July

2021 Hearing”). During the July 2021 Hearing, the trial court noted that although

Barbour’s probation had been set to expire two years earlier – on October 29, 2019

(five years after it had initially revoked his probation) – his pending warrant held

the probationary period open. Further, the trial court extended Barbour’s probation

“to this next court date which we are going to get right now . . . Wednesday,

August 11 at 10:30.” The trial court noted that “his probation [was] extended until

-2- it got that taken care of on August the 11th.” After the hearing, the trial court’s

order reiterated that decision: “extend supervision until next date – 8/11 @

10:30 A.”

The August 11, 2021 Hearing did not occur, however, because there

had been a death in the Jefferson County Courthouse community and the trial court

closed early for the funeral. The parties agreed to continue the hearing to

September 1, 2021, but the trial court did not enter an additional order extending

Barbour’s probationary period to the new date. At the September 1, 2021 Hearing,

the parties agreed to pass the motion to revoke to October 27, 2021, and the trial

court stated that it was extending probation to that date.

When the parties reconvened on October 27, 2021, defense counsel

questioned whether the trial court had any record that it had extended the

probationary period from the August 11, 2021 hearing date to the September 1,

2021 Hearing. The trial court stated that it had extended the probationary period

and it had an order that the agreement was “to pass it and extend it to the October

27th date, which is today. I think technically it was extended even though we

weren’t in court on August 11.” The trial court then revoked Barbour’s probation

on October 27, 2021.

-3- Barbour appeals the probation revocation and argues that the trial

court did not retain jurisdiction because it failed to enter an order on August 11,

2021, extending his probation to the final revocation hearing.

II. STANDARD OF REVIEW

Sentencing issues – like those presented here – are jurisdictional.

Jensen v. Commonwealth, 564 S.W.3d 335, 337 (Ky. App. 2018). We review

jurisdictional issues de novo. Id. (citing Appalachian Reg’l Healthcare, Inc. v.

Coleman, 239 S.W.3d 49, 54 (Ky. 2007)).

III. ARGUMENT

Barbour argues that the trial court did not have jurisdiction to revoke

his probation on October 27, 2021, because his probationary period had expired,

and his warrant was no longer pending, thereby “automatically discharging” him

from probation. Additionally, he argues that the trial court failed to properly

extend his probationary period to the October 2021 Hearing once he met the

requirements for automatic discharge.

Under KRS1 533.020(4), “probation is automatically discharged upon

completion of [the] probationary period unless [1] it has been revoked or [2] an

arrest warrant is pending.” Commonwealth v. Tapp, 497 S.W.3d 239, 242 (Ky.

1 Kentucky Revised Statute.

-4- 2016). In Tapp, the Kentucky Supreme Court emphasized that “[i]f neither

condition exists, the trial court loses jurisdiction both to revoke and to modify the

conditions of probation.” Id.

The Kentucky Supreme Court further explained, however, that after

the initial appearance on the warrant – i.e., when the warrant stopped “pending”

and a defendant would have been automatically discharged – the trial court could

extend the probationary period for a reasonable time until it could hold a final

revocation hearing. Id. Such extension required that the trial court had entered the

warrant before probation expired and that it duly entered an order extending the

probationary period to the revocation hearing. Id. at 241 (citing KRS 533.020(4)).

A. Expiration of Probationary Period and Pending Warrant

First, Barbour argues that he completed his probationary period

without revocation, meeting the first requirement under Tapp. We agree. The trial

court stated on numerous occasions that probation would have ended in October

2019, five years after it initially revoked Barbour’s probation. However, the

Commonwealth disagrees with that calculation and claims Barbour’s probation

would not have ended until June 2020, five years after the trial court granted

Barbour shock probation.

Further, the Commonwealth claims that the warrant “tolled”

Barbour’s probationary period from the date the trial court issued the warrant – in

-5- November 2017 – until the July 2021 Hearing. Therefore, the Commonwealth

argues, Barbour still had 948 days2 to serve on his probation, and it was

unnecessary for the trial court to extend the probationary period at all. In so

arguing, the Commonwealth relied on the “tolling” analysis in the Kentucky

Supreme Court case, Whitcomb v. Commonwealth, 424 S.W.3d 417 (Ky. 2014).

While Barbour agrees that a pending warrant holds open a defendant’s

probationary period when the trial court issued it prior to the expiration of his

probation, he does not agree that the KRS 533.040(2) tolling provision was

triggered. See Whitcomb, 424 S.W.3d at 419.3 Barbour argues that the tolling

provision in KRS 533.040(2) is triggered only after two conditions are met: (1) the

court determined the defendant violated the conditions of his probation; and (2) the

court reinstated the defendant’s probation. Only at such point would the “period

between the date of the violation and the date of restoration of probation . . . not be

computed as a part of the period of probation . . . .” Commonwealth v. Dulin, 427

S.W.3d 170, 174 (Ky. 2014) (citing KRS 533.040(2)). Barbour contends that

2 The Commonwealth argues Barbour’s probation “paused” when the trial court issued the warrant on November 6, 2017, and the time did not begin running again until July 28, 2021, when Barbour first appeared on the matter. By their calculation, Barbour had a total of 1,828 days of probation (five years); Barbour served 880 of those days – from June 10, 2015 to November 6, 2017; which left 948 days of probation to serve (1,828 - 880 = 948). 3 “Indeed, this Court very recently stated that the presence of either an active warrant or the previous revocation of one’s probation will foreclose the probationer from being discharged and the period of probation will remain open.” Id. (citations omitted).

-6- neither condition was met;4 therefore, tolling was only relevant so as not to

“automatically discharge” him from probation while he had a pending warrant. It

was not relevant as to whether it paused then restarted his probationary period as

the Commonwealth asserts. Again, we agree.

Although the Kentucky Supreme Court, in Whitcomb, used the term

“toll,” the Court did not conduct an analysis under KRS 533.040(2) and therefore

did not appear to be making that claim. Whitcomb does contain similar facts to

Barbour’s;5 however, the case is not particularly helpful in determining whether

Barbour’s probationary period should have been tolled under the statute so as to

subtract an amount of time from his probationary period.

4 Importantly, the trial court did not reinstate the defendant’s probation at the October 2021 Hearing, and instead revoked Barbour’s probation. As such, the second step of the tolling analysis was never met. 5 Like here, Whitcomb involved a defendant whose sentence was probated for five years. Whitcomb, 424 S.W.3d at 418. A month after sentencing, the defendant failed to report and the trial court issued a warrant for her arrest, but she did not appear for nearly 11 years. Id. By that time, her five-year probationary period had expired, and the trial court determined that her probation expired six years earlier (five years after the sentencing), so it did not have jurisdiction to revoke her probation and dismissed the Commonwealth’s motion. Id. This Court reversed (for reasons our Supreme Court ultimately disagreed with) and then our Supreme Court clarified that even though the probationary period was set to expire six years earlier, the pending warrant tolled that period because the trial court had issued the warrant before the period expired. Id. Therefore, the defendant was not automatically discharged from probation, and the probationary period remained open so as to hold a probation revocation hearing. Id. at 419. Our Supreme Court held that “the issuance of a warrant for a probation violation will toll the period of probation preventing the probationer from being automatically discharged pursuant to KRS 533.020(4)” so long as the trial court issued the warrant before the probationary period expired. Id. at 420 (emphasis added).

-7- Luckily, two months after Whitcomb was published, our Supreme

Court further explained the tolling provision of KRS 533.040(2) in Dulin, 427

S.W.3d at 174. There, the Kentucky Supreme Court noted that “[f]rom the plain

text of KRS 533.040(2), it is seen that the provision is implicated when ‘a court . . .

determines that a defendant violated the conditions of his probation,’ and does not

order revocation of probation.” Id. Only when the trial court determines the

defendant violated the conditions of probation and reinstates probation does the

trial court then calculate the period that “shall not be computed as a part of the

period of probation.” Id.

There, the Kentucky Supreme Court conducted a thorough analysis of

KRS 533.040(2) and concluded that the trial court had determined, at each of the

revocation hearings, that the defendant violated his probation. Dulin, 427 S.W.3d

at 174. Second, the Kentucky Supreme Court found that the trial court had clearly

reinstated the defendant’s probation following the hearings. Id. at 174-75.

Here, however, the trial court did not make a determination regarding

whether Barbour violated his probation until October 27, 2021. Further, at that

point, the trial court revoked Barbour’s probation – it did not reinstate his

probation. Therefore, the tolling provision of KRS 533.040(2) was not triggered.

Further, in Whitcomb, the Kentucky Supreme Court noted it was

simply tolling the “automatic discharge” feature of KRS 533.020(4) until the

-8- defendant came before the court because she did not meet the requirements for

automatic discharge with a pending warrant. Whitcomb, 424 S.W.3d at 419. It did

not, as the Commonwealth suggests, toll her probation under KRS 533.040(2) so as

to recompute her probationary period. We therefore are not persuaded by the

Commonwealth’s argument and will follow Dulin’s tolling analysis. As such, we

find that Barbour’s probationary period was completed without revocation, and

met the first requirement under Tapp. Tapp, 497 S.W.3d at 242.

Our second step then is to determine whether Barbour had a pending

warrant. Id. An arrest warrant is “pending” until the defendant (1) has been

arrested and (2) appears in court on that matter. Id. at 241 (citing RCr6 2.06(1)).

Importantly, the appearance in court does not require a full “disposition . . . of the

matter for which [the warrant] was issued[.]” Id. Here, Barbour’s warrant stopped

pending in July 2021 because at that point, he had been arrested and appeared in

court for the July 2021 Hearing. Therefore, because Barbour’s probationary period

had expired – without revocation – and his warrant was not pending, he met the

requirements for automatic discharge in July 2021. However, importantly, the trial

court did have the authority to extend the probationary period in such

circumstances – thereby postponing automatic discharge – until it could hold a

revocation hearing. Id. at 242.

6 Kentucky Rule of Criminal Procedure.

-9- B. Extension of Probationary Period

In Tapp, the Kentucky Supreme Court explained that after the initial

appearance on the warrant – i.e., when the warrant stopped “pending” – the trial

court could extend the probationary period for a reasonable time until it could hold

a final revocation hearing. Id. To grant such extension, a trial court must duly

enter an order stating as much. Id. (citing KRS 533.020(4)) (“A probationer is

entitled to due process protections, one of which is a ‘duly entered court order.’”).7

Thus, here, to extend the probationary period – so as to postpone

Barbour’s automatic discharge – the trial court needed to enter an order stating it

was extending “the probationary period for a reasonable time until a probation

revocation hearing could occur.” Id. at 242 (citing KRS 533.020(4)). It is

undisputed that the trial court followed that directive and extended the

probationary period from the July 2021 Hearing to the next hearing date via a duly

entered order. As discussed, after the July 2021 Hearing, the trial court’s order

stated that it would “extend supervision until next date – 8/11 @ 10:30 A.”

As stated, Barbour argues that the trial court failed to extend the

probationary period again when the hearing was rescheduled to accommodate the

7 See also Dulin, 427 S.W.3d at 176 (“The written (‘duly entered’) order referred to in KRS 533.020(4) is required when the trial court chooses to exercise its discretion to extend or to shorten a term of probation, as may occur when a, probationer fails to satisfy probationary obligations . . . .”).

-10- courthouse closure. He claims the trial court lost jurisdiction at that point. The

issue here is whether the trial court’s initial extension ran to the next in-person

hearing (covering August 11, 2021 to September 1, 2021) despite the trial court’s

failure to issue a separate order covering those dates. We believe it did.

That did not happen here. Here, the trial court recognized the need to

extend Barbour’s probation at the July 2021 Hearing because his probationary

period had expired, and his warrant stopped pending on that date. Therefore, the

trial court properly extended Barbour’s probationary period via a duly entered

order to hold his probation open to the next hearing, when it could “get [the issues]

taken care of.”8 That hearing, although initially scheduled for August 11, 2021,

did not take place until September 1, 2021, a date to which both parties agreed.

Under these circumstances, it is clear the trial court intended to extend

the probationary period until the next hearing. August 11, 2021 was not inherently

significant; it was simply the next open date to hold the revocation hearing.

Therefore, when the courthouse closed on that date, the trial court worked with

both parties to determine the next best date, within a reasonable time, to complete

the hearing. On that new date, the trial court again extended the probationary

period to the final revocation hearing. The actions of the trial court followed the

8 “To interpret the language of a trial court’s order we apply substantially the same principles of construction as we do in interpreting statutes.” Commonwealth v. Wright, 415 S.W.3d 606, 609 (Ky. 2013) (citing Crouch v. Crouch, 201 S.W.3d 463, 465-66 (Ky. 2006)).

-11- guidance in Tapp. As such, we find that the trial court properly extended

Barbour’s probation and thereby retained jurisdiction until the October 27, 2021

Hearing.

IV. CONCLUSION

Although Barbour’s probationary period had expired without

revocation and his warrant stopped pending – meeting the requirements for

automatic discharge – the Jefferson Circuit Court properly extended his

probationary period until it could hold the probation revocation hearing.

Therefore, the trial court retained jurisdiction through the October 27, 2021

Hearing and its order revoking Barbour’s probation is AFFIRMED.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Euva D. May Daniel Cameron Louisville, Kentucky Attorney General of Kentucky

Jennifer E. Hubbard Christina L. Romano Louisville, Kentucky Assistant Attorney General Frankfort, Kentucky

-12-