Dennis McCubbins v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: June 20, 2025
• Docket: 2024-CA-0985
• Status: Unpublished

Opinion

RENDERED: JUNE 20, 2025; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0985-MR

DENNIS MCCUBBINS APPELLANT

APPEAL FROM MEADE CIRCUIT COURT v. HONORABLE BRUCE T. BUTLER, JUDGE ACTION NO. 23-CR-00146

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: CALDWELL, CETRULO, AND ECKERLE, JUDGES.

CETRULO, JUDGE: Dennis McCubbins (“McCubbins”) appeals an order of the

Meade Circuit Court that revoked his probation and required him to serve out his

remaining sentence of incarceration.

BACKGROUND

McCubbins pled guilty to one count of first-degree possession of a

controlled substance (methamphetamine). On March 22, 2024, the circuit court

entered a final judgment sentencing him to 18 months of incarceration, probated for three years. Less than two months later, on May 16, 2024, the Commonwealth

moved to revoke McCubbins’s probation based on felony charges he received in

Jefferson County.

According to a violation of supervision report quoting the Jefferson

County citation, McCubbins was arrested on May 5 after he hit and injured a child

with his vehicle, fled the scene, and was later apprehended and found to be in

possession of a glass methamphetamine pipe. The circuit court held a probation

revocation hearing on July 11, 2024. At the hearing, a probation officer testified

and recited the contents of the violation of supervision report. McCubbins argued

that the new charges were irrelevant because they had not been proven and he had

not yet been convicted. The circuit court disagreed and orally found that

McCubbins violated his probation order, could not be supervised properly in the

community, and was a danger to himself and others. Subsequently, the circuit

court revoked McCubbins’s probation. That same day, the circuit court entered a

corresponding order. McCubbins appealed to this Court.

STANDARD OF REVIEW

“A decision to revoke probation is reviewed for an abuse of

discretion.” Commonwealth v. Andrews, 448 S.W.3d 773, 780 (Ky. 2014) (citing

Commonwealth v. Lopez, 292 S.W.3d 878, 881 (Ky. 2009)). “Under our abuse of

discretion standard of review, we will disturb a ruling only upon finding that ‘the

-2- trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound

legal principles.’” Id. (quoting Commonwealth v. English, 993 S.W.2d 941, 945

(Ky. 1999)).

McCubbins concedes that he did not preserve any of his arguments

and requests that we review for palpable error in accordance with Kentucky Rule

of Criminal Procedure (“RCr”) 10.26. “A palpable error is one . . . that ‘affects the

substantial rights of a party’ and will result in ‘manifest injustice’ if not considered

by the court[.]” Schoenbachler v. Commonwealth, 95 S.W.3d 830, 836 (Ky. 2003)

(quoting RCr 10.26). Palpable errors are “easily perceptible, plain, obvious and

readily noticeable.” Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006)

(internal quotation marks and citation omitted). “When an appellate court engages

in a palpable error review, its focus is on what happened and whether the defect is

so manifest, fundamental and unambiguous that it threatens the integrity of the

judicial process.” Martin v. Commonwealth, 207 S.W.3d 1, 5 (Ky. 2006).

ANALYSIS

McCubbins argues the circuit court applied an improper standard of

proof, that new charges alone were not sufficient to revoke his probation, and the

circuit court improperly allowed hearsay testimony. We disagree.

First, to revoke probation “[t]here must be proof in the record

established by a preponderance of the evidence that a defendant violated the terms

-3- of his release and the statutory criteria for revocation has been met.” Walker v.

Commonwealth, 588 S.W.3d 453, 457 (Ky. App. 2019) (quoting Helms v.

Commonwealth, 475 S.W.3d 637, 645 (Ky. App. 2015)). The statutory criteria

include findings by the court that the defendant: 1) is a significant risk to prior

victims or the community at large, and 2) cannot be appropriately managed in the

community. Kentucky Revised Statute (“KRS”) 439.3106(1)(a); see also Kendrick

v. Commonwealth, 664 S.W.3d 731, 734 (Ky. App. 2023).

McCubbins’s argument that the circuit court used the wrong standard

of proof has no merit. McCubbins argues that because the Commonwealth’s

motion to revoke probation requested the circuit court “require [McCubbins] to

show cause why his probation should not be revoked[,]” and the circuit court stated

that this matter came before it on the Commonwealth’s motion, his case is similar

to Hunt v. Commonwealth, 326 S.W.3d 437 (Ky. 2010).

In Hunt, the circuit court erred when it utilized the show cause

standard of proof rather than the preponderance of evidence standard in a probation

revocation matter. Id. at 440. Here, regardless of the Commonwealth’s request,

the court’s oral statements and order revoking probation met the statutory criteria

and proper burden of proof. The circuit court specifically found “by a

preponderance of the evidence” that McCubbins was in violation of the terms and

conditions of his probation, was a significant risk to prior victims or the

-4- community at large, and could not be appropriately managed in the community.1

See KRS 439.3106(1)(a); see also Kendrick, 664 S.W.3d at 734. Therefore, this

case is not like Hunt, supra, and the circuit court did not employ the incorrect

standard of proof. As such, the court met its standard of proof and the statutory

criteria.

Second, “new charges may form the basis for revocation proceedings,

[and] a conviction on those charges is not necessary in order to revoke probation.”

Barker v. Commonwealth, 379 S.W.3d 116, 123 (Ky. 2012). While not yet

convicted of his new charges, it was not improper for those new charges to “form

the basis” for his revocation proceedings. See id. Here, the revocation order found

that McCubbins was in violation of the terms of his probation by incurring a new

felony arrest and being in possession of drug paraphernalia less than two months

after being granted probation. We note, “probation revocation hearings are not

criminal proceedings but flexible hearings that accept matters into evidence

otherwise inadmissible in a criminal prosecution.” Id. at 129.

Lastly, “hearsay evidence is acceptable at probation revocation

hearings[.]” Id. at 129-30; Marshall v. Commonwealth, 638 S.W.2d 288, 289 (Ky.

App. 1982). As such, it was not improper for the probation officer to recite the

1 McCubbins does not claim the circuit court failed to make these findings, and the record clearly shows the circuit court made these findings orally and in its order.

-5- contents of the violation of supervision report that quoted the Jefferson County

citation, even though the probation officer was not present at the time of

McCubbins’s arrest. See Barker, 379 S.W.3d at 129-30. Because hearsay

evidence is acceptable at probation revocation hearings, the circuit court did not err

when it revoked McCubbins’s probation based on testimony of the probation

officer. See id.

Therefore, the circuit court did not commit any error, much less a

palpable error, when it revoked McCubbins’s probation.

CONCLUSION

Accordingly, we AFFIRM the order of the Meade Circuit Court

revoking McCubbins’s probation.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Robert C. Yang Russell Coleman Frankfort, Kentucky Attorney General of Kentucky

Ken W. Riggs Assistant Attorney General Frankfort, Kentucky

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