Small v. Com.
| Citation | 617 S.W.2d 61 |
| Decision Date | 22 May 1981 |
| Docket Number | No. 80-CA-2361-MR,80-CA-2361-MR |
| Parties | Roosevelt SMALL, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | Kentucky Court of Appeals |
Jack Emory Farley, Public Advocate, R. Neal Walker, Asst. Public Advocate, Commonwealth of Kentucky, Frankfort, for appellant.
Steven L. Beshear, Atty. Gen., Elizabeth E. Blackford, Asst. Atty. Gen., Mary Dentinger, Asst. Atty. Gen., Frankfort, for appellee.
Before GANT, HOWARD and HOWERTON, JJ.
Roosevelt Small appeals from an order revoking his shock probation. On February 20, 1979, he pled guilty to reckless homicide and received a sentence of five years. The Honorable Willard Paxton was the Commonwealth's attorney and recommended the sentence appellant received. Appellant received shock probation on May 24, 1979. Mr. Paxton later became Circuit Judge.
In January of 1980, appellant was arrested and charged with DUI. He pled guilty to reckless driving on April 14, 1980. This was used as a basis for a probation revocation hearing held on September 17, 1980, over which Judge Paxton presided. The conditions of appellant's probation mandated that he refrain from possession or use of alcohol or narcotics and that he maintain steady employment.
Appellant first contends that Judge Paxton should have, sua sponte, disqualified himself from presiding over the revocation hearing because he acted as Commonwealth's attorney on the underlying term. He relies on Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), in which the United States Supreme Court stated that a probationer facing revocation is entitled to, among other things, "(a) 'neutral and detached' hearing body such as a traditional parole board ...." Further, appellant relies on K.R.S. 26A.015(2)(a) which states that a judge "... shall disqualify himself ... where he has a personal bias or prejudice concerning a party ... or has expressed an opinion concerning the merits of the proceeding ...."
The Commonwealth contends that failure to file a motion in the lower court that the judge disqualify himself constitutes waiver of the mandate of K.R.S. 26A.015(2)(a). It is our opinion that any waiver of such right may be made under proper circumstances, either in writing or on the record, but will not be presumed from silence.
We need not go into appellant's allegations of bias or prejudice because we feel that under these circumstances, where it appears that Judge Paxton, in his role as Commonwealth's attorney, participated in the plea bargaining of appellant's original sentence, Judge Paxton should have disqualified himself under K.R.S. 26A.015(2)(e) which states that:
Any justice or judge of the Court of Justice ... shall disqualify himself in any proceeding where he has knowledge of any other circumstances in which his impartiality might reasonably be questioned.
There is some discussion in appellee's brief of the unlikelihood of Judge Paxton remembering his role in appellant's earlier plea, but we feel this is irrelevant. Judge Paxton or someone in his office prepared the Judgment of Acceptance of Guilty Plea and Judge Paxton signed same. The document specifically notes the...
To continue reading
Request your trial
-
Matthews v. Commonwealth, No. 2010–CA–001157–MR.
...it is not required to preserve the error as noted in Commonwealth v. Carter, Ky., 701 S.W.2d 409 (1985). Also see Small v. Commonwealth, Ky.App., 617 S.W.2d 61 (1981) in this regard.” Small provides that “any waiver of such right [to move the trial judge to disqualify himself] may be made u......
-
Matthews v. Commonwealth
...it is not required to preserve the error as noted in Commonwealth v. Carter, Ky., 701 S.W.2d 409 (1985). Also see Small v. Commonwealth, Ky. App., 617 S.W.2d 61 (1981) in this regard." Small provides that "any waiver of such right [to move the trial judge to disqualify himself] may be made ......
-
United States v. Lovell
...presented and issued the warrant without relying on extraneous information. Defendant contends, relying upon Small v. Commonwealth, 617 S.W.2d 61 (Ky. App. 1981), that "it is reasonable to assume" that Rowe recalled the 2013 prosecution before he issued the warrant because that case was rec......
-
Johnson v. Commonwealth
...Judge Conrad's presiding over Brenda's criminal case did not violate any statutory mandates for impartiality. Small v. Commonwealth, 617 S.W.2d 61, 63 (Ky.App.1981). Additionally, the record refutes such allegations. Upon Brenda's motion, Judge Conrad held John in contempt for failing to me......