RICKY WHITLOW v. COMMONWEALTH OF KENTUCKY
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RENDERED: August 15, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-000683-MR
RICKY WHITLOW
v.
APPELLANT
APPEAL FROM CUMBERLAND CIRCUIT COURT
HONORABLE JAMES G. WEDDLE, JUDGE
ACTION NO. 01-CR-00018
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, KNOPF AND McANULTY, JUDGES.
JOHNSON, JUDGE:
Ricky Whitlow has appealed from an order of the
Cumberland Circuit Court revoking his probation and sentencing
him to serve five years in prison for complicity to commit
burglary in the third degree.1
Having concluded that Whitlow has
not shown that his right to due process was violated or that he
was prejudiced by the failure of his probation officer to give
him a written copy of the terms of his probation, we affirm.
1
Kentucky Revised Statutes (KRS) 502.020 and 511.040.
On March 2, 2001, Whitlow was indicted by a Cumberland
County grand jury for complicity to commit burglary in the
second degree.2
On July 27, 2001, Whitlow entered a plea of
guilty to the amended count of complicity to commit burglary in
the third degree pursuant to an agreement with the Commonwealth,
which recommended a sentence of five years’ imprisonment to be
probated for a period of five years.
On October 1, 2001, the
circuit court sentenced Whitlow consistent with the
Commonwealth’s recommendation to a suspended term of five years
in prison and placed him on probation for a period of five
years.
At the time Whitlow was sentenced to probation on the
burglary conviction, he was serving a 90-day sentence in the
county jail on a prior misdemeanor conviction in Cumberland
District Court for disorderly conduct and resisting arrest.
Following the felony sentencing, Whitlow’s probation officer
told him that they would meet to specifically discuss his terms
of probation once he was released from jail.
While Whitlow was
serving the 90-day misdemeanor sentence, he was charged with
promoting contraband in the first degree3 after a large quantity
of pills was discovered on his person when he returned from work
release.
On November 21, 2001, Whitlow entered a guilty plea in
2
KRS 502.020 and KRS 511.030.
3
KRS 520.050.
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Adair District Court to the amended charge of promoting
contraband in the second degree.4 He was sentenced to 12 months
in jail, but he was placed on probation for a period of two
years and ordered to serve 30 days consecutive to the sentence
he was serving on the misdemeanor conviction out of Cumberland
District Court, with the remaining 11 months suspended during
the period of probation.
On December 12, 2001, the Commonwealth filed a motion
to revoke Whitlow’s probation on the felony conviction in
Cumberland Circuit Court based on his misdemeanor conviction for
promoting contraband in the second degree.
On December 21,
2001, the circuit court held the first of several hearings on
the motion at which Whitlow stipulated to having been convicted
on a plea of guilty to promoting contraband in the second
degree, but he challenged the revocation of his probation on the
basis that he had never received documentation from or discussed
the conditions of probation with his probation officer.
probation officer agreed with this allegation.
His
The trial court
continued the hearing for further review of the situation in
light of KRS 533.030.
On February 1, 2002, the trial court held
a second hearing, which likewise was continued for further
consideration by the court.
On March 1, 2002, the trial court
held a third hearing and granted the Commonwealth’s motion to
4
KRS 520.060.
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revoke Whitlow’s probation stating that it did not believe KRS
533.030 required Whitlow to sign a document listing the terms
and conditions of probation.
On March 21, 2002, Whitlow filed a motion to
reconsider.
The trial court denied the motion and noted that
the October 1, 2002, order of probation form had included the
requirement that Whitlow not commit another offense.
The trial
court stated that it believed there had been substantial
compliance with KRS 533.030.
This appeal followed.
Whitlow’s primary challenge to the trial court’s
ruling involves his claim that he was denied due process.
He
contends that fairness dictates that a probationer receive an
explanation of the terms and conditions of probation in order to
allow him an opportunity for rehabilitation.
He asserts that
probationers have a liberty interest in probation protected by
the Fourteenth Amendment to the United States Constitution that
includes notice of the terms and conditions of probation prior
to having their probation revoked for violating those
conditions.
Whitlow also stresses the important role of
probation officers in assisting and guiding probationers
generally and also with respect to the conditions of their
probation.
Although we agree with most of the general principles
propounded by Whitlow, his due process argument ultimately must
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fail under the facts of this case.
In Gagnon v. Scarpelli,5 the
Supreme Court recognized that revocation of probation is not
part of a criminal prosecution and thus the full panoply of due
process protections accorded a defendant in such a proceeding do
not apply to a revocation proceeding.
However, the Supreme
Court held that the conditional loss of freedom embodied in
revocation of probation constitutes a deprivation of a
defendant’s liberty subject to certain limited procedural due
process rights.
Among those rights is one of fair notice or
warning of the conduct that may result in revocation of
probation.6 However, the courts have analyzed the notice
requirement differently depending on whether the violation
involved criminal activity.
For instance, the Court in United
States v. Dane,7 stated:
As a general matter, formal conditions
of probation serve the purpose of giving
notice of proscribed activities. But a
formal condition is not essential for
purposes of notice. Courts have sustained
the revocation of probation for criminal
activity committed prior to the effective
date of the conditions, or where the
defendant was not aware of the conditions.
In such a case, knowledge of the criminal
law is imputed to the probationer, as is an
understanding that violation of the law will
5
411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). See generally
Baumgardner v. Commonwealth, Ky.App., 687 S.W.2d 560 (1985).
6
See Douglas v. Buder, 412 U.S. 430, 93 S. Ct. 2199, 37 L.Ed.2d 52 (1973);
United States v. Twitty, 44 F.3d 410, 412 (6th Cir. 1995); and United States
v. Gallo, 20 F.3d 7, 11, (1st Cir. 1994).
7
570 F.2d 840 (9th Cir. 1978).
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lead to the revocation of probation. On the
other hand, where the proscribed acts are
not criminal, due process mandates that the
petitioner cannot be subjected to a
forfeiture of his liberty for those acts
unless he is given prior fair warning
[citations omitted].8
Whitlow engaged in the criminal activity that
culminated in a conviction for promoting contraband after he had
been sentenced and placed on probation for the burglary
conviction.
Knowledge of the criminal law and notice that
violation of the law could result in revocation of his probation
is imputed to Whitlow, so actual notice and explanation of that
condition of probation by the probation officer was not
necessary prior to revocation based on that condition.
Accordingly, the trial court did not violate Whitlow’s due
process rights by revoking his probation even if he did not
receive a written copy of the conditions of probation.
In addition to his due process argument, Whitlow
contends that the trial court’s revocation order must be
8
Id. at 843-44. See also United States v. Simmons, 812 F.2d 561, 565 (9th
Cir. 1987); and State v. Budgett, 146 N.H. 135, 138, 769 A.2d 351, 353
(2001)(“It would be illogical and unreasonable to conclude that a defendant,
who has been granted conditional liberty, needs to be given an express
warning that if he commits a crime, he will lose the privilege of that
liberty. ‘[A] condition of a suspended sentence that a person may not commit
a [crime], is so basic and fundamental that any reasonable person would be
aware of such condition’"). State v. Lewis, 58 Conn.App. 153, 752 A.2d 1144
(2000)(condition not to commit another crime inherent in every order of
probation).
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reversed based on KRS 533.030(5).9 KRS 533.030 deals with several
aspects involving the conditions of probation; and
(5) states:
Subsection
“When a defendant is sentenced to probation or
conditional discharge, he shall be given a written statement
explicitly setting forth the conditions under which he is being
released.”
Whitlow also cites to KRS 439.480(2), which provides
that as part of the duties of probation officers, they shall
“[f]urnish to each person released under their supervision a
written statement of the conditions of probation or parole and
instruct him regarding the conditions[.]”
The fundamental rule of statutory construction is that
courts are to ascertain and construe statutes so as to give
effect to the intent of the Legislature.10
A court must consider
the purpose for the statute, the reason and spirit of the
statute, and the mischief intended to be remedied.11
The policy
and purpose of a statute must be considered in determining the
meaning of the language and intent of the Legislature.12
Each
section of a statute should be construed in accord with the
9
When Whitlow was sentenced, the provision now appearing at KRS 583.030(5)
was at KRS 533.030(6).
10
Hale v. Combs, Ky., 30 S.W.3d 146, 151 (2000); Commonwealth v. Harrelson,
Ky., 14 S.W.3d 541, 546 (2000).
11
Barker v. Commonwealth, Ky.App., 32 S.W.3d 515, 516-17 (2000); Gurnee v.
Lexington Fayette Urban County Government, Ky.App., 6 S.W.3d 852, 856 (1999).
12
See Kentucky Industrial Utility Customers, Inc. v. Kentucky Utilities Co.,
Ky., 983 S.W.2d 493, 500 (1998); and Democratic Party of Kentucky v. Graham,
Ky., 976 S.W.2d 423, 429 (1998).
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statute as a whole.13 A review of KRS 533.030 as a whole
indicates that Whitlow’s reliance on that statute is misplaced.
Although Subsection (5) states a defendant shall be given a
written statement of conditions, Subsection (1) states:
The conditions of probation and
conditional discharge shall be such as the
court, in its discretion, deems reasonably
necessary to insure that the defendant will
lead a law-abiding life or to assist him to
do so. The court shall provide as an
explicit condition of every sentence to
probation or conditional discharge that the
defendant not commit another offense during
the period for which the sentence remains
subject to revocation.
This provision in essence makes absence of the commission of
another offense a condition of probation as a matter of law.
In
construing these two subsections, we refer to the Commentary,14
which states with respect to the writing requirement the
following: “Most of the persons caught up in the criminal
process are relatively uneducated and there exists a substantial
risk that conditions of their release might be misunderstood.
That risk can be minimized by requiring a written statement of
conditions.”
With respect to the subsequent criminal violation
condition, the Commentary states that “[t]he last sentence of
subsection (1) is added so that there can exist no doubt but
that commission of another offense while probation or
13
Combs v. Hubb Coal Corp., Ky., 934 S.W.2d 250, 252-53 (1996); Aubrey v.
Office of the Attorney General, Ky.App., 994 S.W.2d 516, 520 (1998).
14
See KRS 500.100 (Commentary may be used as aid in construing Penal Code).
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conditional discharge exists is reason for revocation of such a
sentence.”
We believe that Subsection (5) was intended to avoid
prejudice to a defendant concerning the terms of probation due
to lack of notice and does not create a standard which would
prohibit revocation of probation for failure to furnish a
written statement of conditions where the defendant has actual
notice.
KRS 533.030 does not contain a remedy or penalty for
violation of Subsection (5).
However, given the policy and
purpose of KRS 533.030, we hold that a defendant may have his
sentence of probation revoked for commission of a criminal
offense during his term of probation even if he did not receive
a written statement of the conditions of probation.15
15
Although there are no Kentucky cases on point, the federal courts have held
that under federal law similar to Kentucky’s statutes, a trial court is not
automatically precluded from revoking a defendant’s probation for failure to
provide a written statement of conditions. 18 U.S.C. § 3583(f) states the
trial court “shall” direct that the probation officer provide the defendant
with a written statement setting forth all the conditions of the supervised
release. 18 U.S.C. § 3583(d) states the court “shall” order as an explicit
condition of supervised release that the defendant not commit another crime
during the term of supervision. 18 U.S.C. § 3603(l) directs that a probation
officer, as part of his duties, “shall” provide a probationer a written
statement clearly setting forth all the conditions of supervised release. In
United States v. Felix, 994 F.2d 550, 551 (8th Cir. 1993), the Court stated,
“Because the ultimate goal is notice and guidance for the defendant, we
decline to impose a rule that failure to order or to provide a written
statement automatically results in the inability of the sentencing court to
revoke supervised release based on a violation of one of the conditions.” In
United States v. Ortega-Brito, 311 F.3d 1136, 1138 (9th Cir. 2002), the Court
agreed with the First and Eighth Circuits that “where a releasee received
actual notice of the conditions of his supervised release, a failure to
provide written notice of those conditions will not automatically invalidate
the revocation of his release based upon a violation of such conditions.”
See also United States v. Ramos-Santiago, 925 F.2d 15 (1st Cir. 1991); United
States v. Johnson, 763 F. Supp. 900 (W.D. Tex. 1991).
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It is undisputed that during the term of Whitlow’s
probation for the burglary conviction, he both committed and was
convicted of the offense of promoting contraband in the second
degree.
The record for the burglary conviction contains a
written Order of Probation/Conditional Discharge document and
the Judgment and Sentence on Plea of Guilty document both dated
October 1, 2001, the same date as the sentencing hearing.
Both
documents were entered by the trial court on October 8, 2001.
The Order of Probation contains a list of conditions that
includes the provision, “Not commit another offense.”
It is
signed by the trial judge but not by the defendant, Whitlow.
The trial judge stated in the December 21, 2001, hearing that he
usually reviews the Order of Probation with the defendant at the
sentencing hearing.
Unfortunately, the appellate record does
not contain a transcript or videotape of the sentencing hearing;
however, the appellant generally bears the burden of ensuring
the completeness of the record and an appellate court must
assume that the omitted record supports the decision of the
trial court.16
Indeed, Whitlow has not claimed that he did not
receive actual notice of the probation conditions orally at the
In addition, courts in Connecticut and Indiana have construed their
statutes, which are similar to the Kentucky statutes, as directory, rather
than mandatory, and applied a harmless error analysis for probation
revocation where a defendant did not receive a written statement of the
conditions of probation. See State v. Martinez, 55 Conn.App. 622, 731 A.2d
721 (1999); Seals v. State, Ind.App. 700 N.E.2d 1189 (1998).
16
See Gillum v. Commonwealth, Ky., 925 S.W.2d 189, 190 (1995); and
Commonwealth v. Thompson, Ky., 697 S.W.2d 143, 145 (1985).
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time of sentencing, only that he did not receive a written
statement of the conditions from either the court or his
probation officer.
In conclusion, we do not believe the
technical violation of KRS 533.030(5) precluded the trial court
from revoking Whitlow’s sentence of probation absent prejudice
by a lack of notice, which Whitlow has not shown.
For the foregoing reasons, the order of the Cumberland
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Dennis Stutsman
Frankfort, Kentucky
Albert B. Chandler III
Attorney General
J. Gary Bale
Assistant Attorney General
Frankfort, Kentucky
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