Barker v. Commonwealth
| Decision Date | 20 September 2012 |
| Docket Number | Nos. 2010–SC–000116–DG, 2010–SC–000123–DG.,s. 2010–SC–000116–DG, 2010–SC–000123–DG. |
| Parties | Gerald BARKER, Appellant v. COMMONWEALTH Of Kentucky, Appellee. and Commonwealth Of Kentucky, Appellant v. Ryan Jones, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
OPINION TEXT STARTS HERE
Frederick W. Rhynhart, Newark, DE, for Appellant Gerald Barker.
Jack Conway, Attorney General of Kentucky, Joshua D. Farley, Assistant Attorney General, Attorney General's Office, Office of Criminal Appeals, Frankfort, KY, for Appellee Commonwealth Of Kentucky.
Jack Conway, Attorney General of Kentucky, James Hays Lawson, Assistant Attorney General, Office of Criminal Appeals, Office of the Attorney General, Zrankfort, KY, for Appellant Commonwealth Of Kentucky.
Shelly R. Fears, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, for Appellee Ryan Jones.
We granted discretionary review of these two probation revocation cases to consider whether the trial court may proceed to hold evidentiary hearings to revoke or modify probation when the grounds for revocation or modification are new, unresolved criminal charges against the probationer. We hold:
• The trial court is not required to delay probation revocation or modification hearings awaiting resolution of the criminal charges that arise during the probationary period, reaffirming existing precedent;
• When the probationer is faced with probation revocation or modification and a criminal trial based upon the same, conduct that forms the basis of new criminal charges, the probationer's testimony at the probation revocation hearing is protected from use at any later criminal trial in the state courts of Kentucky;
• The trial court must advise the probationer that any testimony the. probationer gives in probation revocation hearings that relates to the facts underlying the new charges cannot be used as substantive evidence in the trial of the new charges; and
• The probationer's testimony at the revocation hearing can be used for impeachment purposes or rebuttal evidence in the trial of the new charges, and the trial court shall so advise the probationer before the probationer testifies at the revocation hearing.
Gerald Barker's felony conviction is based upon his guilty plea to nine counts of fraudulent use of a credit card over $100, one count of first-degree possession of a controlled substance, and one count of possession of drug paraphernalia. Barker received a sentence of five years' probation. Before the expiration of the period of probation, the Commonwealth moved to revoke probation because Barker received new criminal charges.
Ryan Jones pled guilty to trafficking in a controlled substance in the first-degree (first offense), tampering with physical evidence, possession of marijuana, and possession of drug paraphernalia (first offense) and received a sentence of seven years' imprisonment, probated for five years. Before the expiration of the period of probation, the Commonwealth moved to revoke probation because Jones received new criminal charges.
At Barker's probation revocation hearing, his counsel argued that probation revocation proceedings were premature because Barker merely incurred new charges, not new convictions. But the trial court proceeded to hear and decide the revocation motion.
At the revocation hearing, Barker's assigned probation officer was the only witness called by either side. The officer's testimony recited the contents of a written special supervision report she submitted earlier to alert the trial court of Barker's arrest on new charges, which consisted of four counts of fourth-degree assault. The source of the officer's information on these assaults was (1) the citation issued to Barker by the Kentucky State Police documenting Barker's arrest on these new charges and (2) a conversation between the officer and Barker's sister, who told the officer that she was afraid of Barker and did not want him to return to the family home.
Barker made two arguments opposing revocation: (1) the absence of physical evidence showing conclusively that he violated the conditions of his probation and (2) no probation violation occurred without a conviction on the new charges. The trial court revoked Barker's probation and imposed the seven-year sentence of confinement. The Court of Appeals affirmed the trial court's order.
Jones's probation officer submitted a special supervision report to the trial court requesting a bench warrant for Jones's arrest and revocation of Jones's probation because of Jones's indictment on new charges of possession of a controlled substance. Before the probation revocation hearing, Jones's counsel sought postponement, arguing that the same facts asserted as grounds for probation revocation were also the basis for the new indictment. The trial court denied this requested postponement.
At the probation revocation hearing, Jones's probation officer testified that he received information from the police that witnesses reported seeing Jones shoot a gun near his residence. The probation officer accompanied a group of police officers to Jones's aunt's residence where Jones lived. They encountered there a male, Justin Valentine, and two females on the front porch. One of the officers detected an odor of marijuana, and the three individuals were taken into custody. Jones was not there at the time.
Jones's aunt admitted the officers into the house and showed them the basement where Valentine and Jones shared living quarters. Plainly visible on top of a dresser within these quarters were marijuana stems and seeds. A search of the living quarters ensued, yielding digital scales, fifty dollars in cash, marijuana in plastic bags, a white powdery residue on the surface of a tray, and marijuana in the pockets of various articles of clothing.
When Jones arrived home, he was immediately taken into custody and questioned about his knowledge of the drugs. He denied any knowledge of the drugs. But he stated that he could not pass a drug test because he smoked marijuana the previous day. The indictment followed.
Jones elected to remain silent at the probation revocation hearing. But he did attempt a defense by presenting testimony from witnesses, including his aunt and Valentine. At the close of the hearing, the trial court made oral findings, appearing on video record, that Jones violated the conditions of probation. Later, the trial court issued a written order revoking Jones's probation. Holding that Jones was entitled to limited immunity in later prosecution for any testimony he might give in the revocation hearing, the Court of Appeals reversed the trial court's revocation order and remanded the case to the trial court for further proceedings consistent with the holding of the Court of Appeals.
On review in this Court, Barker argues that the trial court improperly considered his arrest on new felony charges as the sole basis for revoking his probation because he had not been convicted on those new felony charges. Jones claims the trial court erred by failing to postpone his probation revocation hearing until after the resolution of his new charges. Additionally, Jones argues that the timing of his probation revocation hearing erroneously forced him to choose between asserting his right against self-incrimination on the new felony charge and presenting a complete and meaningful defense to probation revocation.
We disagree with Barker and Jones that the trial courts were compelled to postpone the probation revocation hearings until after resolution of the pending criminal charges. Although Jones argues that the Fifth Amendment to the United States Constitution and Section 11 of the Kentucky Constitution protect probationers at their probation revocation hearings, we decline to resolve these cases on constitutional grounds. Instead, we conclude that adopting an exclusionary rule would serve the interest of maintaining supervisory power over the probationer while allowing the probationer to present a defense to probation revocation.
So, in Barker's case, we affirm the opinion of the Court of Appeals because, under the circumstances, the fact that the trial court did not inform Barker that he could testify at his own probation revocation hearing with limited immunity did not affect his substantial rights or result in a manifest injustice. In Jones's case, we also affirm the Court of Appeals on different grounds and remand Jones's case to the trial court for proceedings consistent with this opinion.
A. Due Process Requirements Applicable to Probation Revocation Hearings.
The Fifth Amendment to the United States Constitution provides that no person shall “be deprived of life, liberty, or property, without due process of law....” And this Amendment is applicable to our state through the Fourteenth Amendment 1 and Section 2 of the Kentucky Constitution.
In Morrissey v. Brewer,2 the United States Supreme Court considered whether due process was required in parole revocation hearings and determined that “revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due to a defendant in [a criminal] proceeding does not apply to parole revocations.” 3 But because parole revocation hearings deprive an individual of a conditional liberty interest, the Court was compelled to determine what level of process was due in parole revocation hearings.4 In Morrissey, the Court held that the minimum requirements of due process in a parole revocation included:
To continue reading
Request your trial
-
Maze v. Ky. Judicial Conduct Comm'n
...Court Rule ("SCR") 4.000.29 Nicholson v. Judicial Ret. & Removal Comm'n, 562 S.W.2d 306, 308 (Ky. 1978).30 Id.31 Barker v. Commonwealth, 379 S.W.3d 116, 124 (Ky. 2012) (citing Griffith v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) ).32 Jenkins v. Anderson, 447 U.S. 231, ......
-
McDaniel v. Commonwealth, 2014-SC-000241-DG
...before recharacterization of a pro se pleading as a petition pursuant to the state habeas corpus statute); and see Barker v. Commonwealth, 379 S.W.3d 116 (Ky.2012) (discussing this Court's supervisory power over the judicial branch and applying that power to require that probationers be adm......
-
Cooper v. State
...that a defendant must not be forced to forfeit one constitutional right to preserve another constitutional right." Barker v. Commonwealth, 379 S.W.3d 116, 123 (Ky. 2012) ; see also Simmons v. United States, 390 U.S. 377, 393-94, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) (considering a defendant’......
-
Peeler v. Commonwealth
...before recharacterization of a pro se pleading as a petition pursuant to the state habeas corpus statute); and see Barker v. Commonwealth, 379 S.W.3d 116 (Ky. 2012) (discussing this Court's supervisory power over the judicial branch and applying that power to require that probationers be ad......