Williams v. Commonwealth

462 S.W.3d 407, 2015 Ky. App. LEXIS 61, 2015 WL 2147984
CourtCourt of Appeals of Kentucky
DecidedMay 8, 2015
DocketNO. 2013-CA-002112-DG
StatusPublished
Cited by4 cases

This text of 462 S.W.3d 407 (Williams v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Williams v. Commonwealth, 462 S.W.3d 407, 2015 Ky. App. LEXIS 61, 2015 WL 2147984 (Ky. Ct. App. 2015).

Opinion

OPINION

COMBS, JUDGE:

This case is. before us on discretionary review. Anthony Williams1 appeals the order of the Jefferson Circuit Court which affirmed the revocation of his conditional discharge in Jefferson District Court. After our review, we vacate and remand.

On March 16, 2012, Williams pleaded guilty to driving under the influence. He received a sentence of incarceration of twenty-six days, discharged for two years, on the condition that he not commit any crimes during the two-year period of his discharge.

On July 11, 2013, the Louisville Police Department received a tip that drugs were being sold from the residence where Williams lived. His mother, who owned the house, had consented to a search. The officers found Williams sleeping in a room in which they observed several baggies containing drugs. Another individual, Michael Young, was sleeping in a back bedroom. Young claimed that the drugs belonged to him. Nonetheless, the police arrested Williams and charged him with trafficking in controlled substances.

[409]*409The Commonwealth then filed a motion to revoke Williams’s conditional discharge on July 15, 2013. The reasons provided were “re-arrest” and “failure to refrain from further violations of the law.” The District Court combined the preliminary hearing for the charges with the revocation hearing. It considered evidence presented over the course of three separate hearings. Williams’s defense continued to be Young’s alleged ownership of the drugs.

At the close of the hearing, on August 15, 2013, the court announced that it found probable cause to send the case to the grand jury. The Commonwealth reminded the court of the motion to revoke conditional discharge, and the court granted that motion. Williams objected on the ground that he was being punished for exercising his right to a preliminary hearing on the new charges. The court then clarified its order, stating that it was “revoking the twenty-six days for a probation violation.” Williams appealed the revocation to the Jefferson Circuit Court, which affirmed the conviction on November 26, 2013. This court granted discretionary review on April 23, 2014.

On appeal, Williams primarily argues that the trial court violated his constitutional right to due process when it combined the hearings for probable cause and revocation. In response, the Commonwealth contends that Williams did not preserve the issue for appeal.

Preliminarily, we note the confusing state of the record before us. Williams’s brief cited to the video recording of the hearing and relied primarily upon those citations. However,- the recording was not included in the record. The designation of record indicated that there was no video. After searching the record, we discovered it in the unlikely form of an attachment to a pleading that had been submitted to the circuit court. See Dennis v. Fulkerson, 343 S.W.3d 633, 637 (Ky.App.2011). This deficiency nearly prevented a meaningful review in this case, and its fortuitous discovery easily could have eluded us.

It is well established that we are a court of review. Therefore, we may not consider issues that were not presented to the trial court. J.K. v. N.J.A., 397 S.W.3d 916, 919 (Ky.App.2013). Matters are preserved when they have been “precisely raised or adjudicated” in the trial court. Smith v. Bear, Inc., 419 S.W.3d 49, 60 (Ky.App.2013). We may only consider issues that fall within the scope of objections made to the trial court. Richardson v. Commonwealth, 483 S.W.2d 105, 106 (Ky.1972). Our Supreme Court has also found contemporaneous objections to be a factor when considering preservation of an issue. Elery v. Commonwealth, 368 S.W.3d 78, 97 (Ky.2012).

In this case, after the court announced that it was sending Williams’s new charges to a grand jury and that it was revoking his conditional discharge, Williams objected, arguing that he had not been convicted of a crime to justify the revocation. He reasoned that he was being punished for exercising his right to a preliminary hearing. On appeal, however, Williams claims that his due process rights were violated by the trial, court’s conducting the joint hearing. The basis for his argument is that the two hearings require two different burdens of proof.

Williams failed to preserve his present contention that combining the two procedures into one hearing violated his rights to due process. At the beginning of the hearing, Williams asked the court to refrain from deciding the issue of revocation until the new charges had been resolved. At the conclusion of the hearing, his objection continued to be that revocation without a conviction was improper. Williams [410]*410participated in the hearing without making due process objections. However, he never asked the trial court to consider the propriety of the joint hearing. Thus, the issue is not properly before us.

Williams asks us to conduct a review for palpable error pursuant to Kentucky Rule[s] of Criminal Procedure (RCr) 10.26. Our Supreme Court has explained that a palpable error is one that results in “manifest injustice” affecting a party’s substantial rights. Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky.2006). An appellate court may recognize palpable error as one that “seriously affects the fairness, integrity [sic] or public reputation of judicial proceedings”, and should probé the record to determine if the error was “shocking or jurisprudently intolerable.” Id. at 4. (internal citations omitted). We review to determine whether we believe “there is a ‘substantial possibility’ that the result in the case would have been different without the error.” Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky.2006) (internal citations omitted). We note that for the sake of review, conditional discharge is treated like probation. Commonwealth v. Marshall, 345 S.W.3d 822, n.1 (Ky.2011).

In this case, we cannot agree that palpable error occurred for the reasons asserted by Williams in his brief. Williams correctly argues that the Commonwealth’s burden of proof of a probation violation is preponderance of the evidence. Id. at 834. Conditional discharge may only be revoked “after a hearing with defendant represented by counsel and following a written notice of the grounds for revocation or modification.” Kentucky Revised Statute[s] (KRS) 533.050(2). Our Supreme Court has addressed this issue as follows:

[O]ral findings and reasons for revocation as stated by the trial court from the bench at the conclusion of a revocation hearing satisfy a probationer’s due pro-' cess rights, presuming the findings and reasons support the revocation, when they are preserved by a reliable means sufficiently complete to allow the parties and reviewing courts to determine the facts relied on and the reasons for revoking probation.

Commonwealth v. Alleman,

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Bluebook (online)
462 S.W.3d 407, 2015 Ky. App. LEXIS 61, 2015 WL 2147984, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-commonwealth-kyctapp-2015.