NICKELL, Judge.
Mitchell Jackson appeals from an order entered by the Jefferson Circuit Court on December 8, 2008, revoking his probation and imposing a total term of twenty years' imprisonment. On appeal, Jackson raises three claims —the prosecutor should have recused; the trial court lacked jurisdiction to order revocation; and, the trial court ordered revocation without making required findings of fact. Having reviewed the record, the briefs and the law, we affirm on the first two issues, but remand for further proceedings on the third so the trial court may make findings of fact and specify how Jackson violated his probation.
That this case is convoluted and Jackson has a lengthy criminal record are gross understatements. Even though we take pains to set forth a detailed history of this litigation, it is still greatly truncated.
The crimes at the heart of this particular appeal stem from the return of two Jefferson County, Kentucky, indictments
On July 14, 2003, Jackson pled guilty to all offenses. For each felony he was sentenced to five years, enhanced to ten years due to his PFO I status. The ten-year terms on each indictment were run consecutively for a total of twenty years, probated for a term of five years. Judge Tom McDonald signed both judgments on August 21, 2003; they were entered on September 3, 2003. Several probation conditions were imposed, including: remaining on good behavior, not violating the law in any way, complying with all conditions and instructions of the Division of Probation and Parole, and, paying restitution.
Just twenty months later, on May 9, 2005, Jackson pled guilty to new charges in Jefferson County Indictment No. 03-CR-1973, and was sentenced by Judge Thomas Wine to serve a total of eight years. As part of the plea agreement, the sentence was to run concurrent to any time imposed on seven cases pending in Indiana. Additionally, the following language was incorporated into the judgment:
(Emphasis added). The Commonwealth did not move to revoke Jackson's probation. Nor were the 2000 cases reopened to reference the tolling provision to which Jackson agreed in the 2003 case.
On May 12, 2005, the Division of Probation and Parole issued a special supervision report closing its interest in Jackson due to his conviction in the 2003 case stating, Jackson "will be advised of his obligation to report for probation supervision, should he be released prior to August 21, 2008." The report indicates charges were pending against Jackson in Indiana, and having been probated on August 21, 2003, listed a maximum probation eligibility date of August 21, 2008.
On May 24, 2007, Jackson was paroled
On July 31, 2007, Jackson was arrested on new charges that became the basis for Indictment No. 07-CR-3265 which was returned on October 9, 2007. Although arrested for a parole violation in August of 2007, revocation did not occur at that time because the arresting officer failed to appear at a hearing. More charges followed, spawning Indictment Nos. 07-CR-3670 and 08-CR-0504. An attempt was made by defense counsel and the Commonwealth to jointly resolve all charges in the three new cases.
In the wake of these latest felony charges, on October 10, 2007, the Division of Probation and Parole prepared another special supervision report—this one recommending Jackson's probation on the 2000 cases be revoked due to new charges. On October 19, 2007, the Commonwealth moved for probation revocation on Indictment Nos. 00-CR-0667 and 00-CR-1372 because Jackson
On October 29, 2007, bench warrants were issued for Jackson on the probation violation stemming from the 2000 cases. The bench warrants were served on November 12, 2007, the same day Jackson was arrested on new charges that became the basis for Indictment No. 08-CR-0504.
On November 14, 2007, a revocation hearing was to occur on these two cases, but the hearing was continued so Jackson's records could be retrieved from archives. On January 9, 2008, the Commonwealth asked the trial court to schedule a hearing thirty to forty-five days hence to give the parties an opportunity to reach an agreement. If the parties could not agree, all pending Kentucky charges would be wrapped with the revocation motion in an attempt to resolve all of Jackson's cases in one fell swoop. The matter was reset for March 3, 2008, when the Commonwealth asked that the matter be "rolled" until March 14, 2008, to give defense counsel additional time to discuss with Jackson an offer on all five cases. On March 3, 2008, a joint motion was granted continuing the hearing until March 14, 2008.
Around March 12, 2008, Jackson filed a pro se motion for a mental health evaluation. On March 18, 2008, he filed a pro se motion asking that the Commonwealth be directed to turn over specific exculpatory evidence on a continuing basis.
Complicated negotiations attempted to resolve all of Jackson's new charges via a single guilty plea and address the probation revocation motion on the 2000 cases. However, at a hearing on March 24, 2008, Jackson rejected the exceedingly generous deal negotiated by defense counsel.
On April 17, 2008, Jackson filed more pro se motions, this time asking for a bond reduction and a fast and speedy trial.
On July 10, 2008, defense counsel filed a written motion to continue the revocation hearing. Counsel urged the trial court to delay the hearing until the pending charges—the basis for the revocation motion—had been resolved. According to counsel, delaying the hearing would avoid Jackson having to decide between testifying and possibly incriminating himself, or remaining silent and presenting an incomplete defense. Counsel also argued discovery was incomplete and rulings had not been issued on pro se motions. This motion remained pending until December 8, 2008, the date the probation revocation hearing occurred, when the trial court ultimately denied the requested relief.
Although Jackson was represented by counsel, he filed another pro se motion on July 24, 2008, this one captioned "Motion for Recusal."
On October 20, 2008—a year and a day after the motion to revoke had been filed—and nearly two months after the original probationary period would have expired—then-Circuit Judge Irv Maze
In November 2008, Jackson filed a bar complaint against Van De Rostyne alleging prejudice. While the complaint was formally made against Van De Rostyne, it recited actions Jackson expected his current public defender to take while representing him, such as ensuring the Commonwealth disclosed exculpatory evidence, objecting to new evidence (the special supervision report offered by the Commonwealth on October 20, 2008), and thoroughly investigating the case.
In early December 2008, Jackson filed a pro se motion to dismiss
The probation revocation hearing was held December 8, 2008. Defense counsel mentioned three pending motions at the outset of the hearing. First, she requested a ruling on Jackson's pro se motion to recuse the prosecutor. Defense counsel stated a police officer's failure to produce a dash camera video had resulted in a mistrial of Indictment No. 03-CR-1973. Van De Rostyne explained that then-Circuit Judge Wine, who presided over Indictment No. 03-CR-1973, had found no prosecutorial misconduct; Jackson had pled guilty to other charges; and, absent a showing of bad faith on his part, there was no reason for him to recuse. The motion to recuse Van De Rostyne was denied.
Second, defense counsel asked to delay the probation revocation hearing again, arguing Jackson was presumed innocent and requiring him to defend himself on the pending charges before they were resolved would impinge his right against self-incrimination since he would feel compelled to testify. The Commonwealth opposed further delay, noting the motion to revoke had already been pending more than a year. Finding Jackson's request to be unsupported by case law, the court denied the motion.
Third, defense counsel moved that the probation revocation motion be dismissed because KRS 533.040(3) requires revocation to occur within ninety days of the Commonwealth learning of the existence of grounds for revocation. Defense counsel stated she had explained Sutherland to Jackson and believed revocation could occur outside the ninety-day window, but any sentence imposed would have to be run concurrently. The Commonwealth argued Sutherland was limited to situations involving a new conviction—not a new charge—as was the scenario at bar. Defense counsel did not orally argue the trial court lacked jurisdiction to revoke probation because the five-year probation period had expired, however, that theory had been mentioned in the pro se motion to dismiss the probation revocation hearing. The trial court denied the motion to dismiss without explanation.
With Jackson's three preliminary motions resolved, the prosecutor offered testimony from three police officers about Jackson's pending charges, as well as testimony from Officer Stagner, Jackson's current Probation and Parole Officer. The Commonwealth argued the standard of proof in a probation revocation hearing is a preponderance of the evidence and the testimony showed Jackson was paroled on May 24, 2007, and by July 2007 had resumed his pattern of using drugs and fleeing police. Jackson did not rebut the proof. Defense counsel merely asked the court to withhold its decision until the new charges had been resolved.
The court sustained the Commonwealth's motion to revoke and imposed the original twenty-year sentence. Citing Sutherland, defense counsel asked the court to run the sentences concurrently and ensure Jackson received credit for all time served. The court stated it would ask the Department of Justice to calculate Jackson's sentence. Again, defense counsel did not argue the trial court lacked jurisdiction to revoke probation because the period of probation had expired.
On December 11, 2008, the trial court entered a succinct written order revoking Jackson's probation and stating in pertinent part:
(Emphasis in original). No motion for more specific findings was filed.
On January 12, 2009, Jackson filed a notice of appeal to the Supreme Court of Kentucky challenging the order revoking probation. In resolving Jackson's matter-of-right appeal the Supreme Court wrote, because
Jackson v. Commonwealth, 319 S.W.3d 343, 344 (Ky. 2010). On September 16, 2010, Jackson moved for leave to file a belated appeal in this Court. On September 21, 2010, this Court filed his belated appeal.
Upon completion of briefing on June 23, 2011, this appeal was assigned to a Court of Appeals panel with Judge Wine, at that time a member of this Court, presiding. Having also presided over Jackson's guilty plea in Indictment No. 03-CR-1973, Judge Wine recused and the case was reassigned to a different panel with Senior Judge Joseph Lambert presiding. On August 10, 2011, without issuing an opinion in this appeal, Judge Lambert completed his service as a senior judge requiring reassignment to a third panel on November 20, 2012.
Prior to assignment of this appeal to the current panel, Jackson filed a motion on September 19, 2012, seeking to cite additional authority—Dulin v. Commonwealth, 2011-CA-000602-MR (rendered September 14, 2012). Dulin was not yet final, but Jackson alleged it was dispositive. In light of that motion, this appeal was informally—and then formally—placed in abeyance. Today, by separate order, we remove this appeal from abeyance.
The Supreme Court of Kentucky granted discretionary review and rendered Commonwealth v. Dulin, ___ S.W.3d ___, 2014 WL 1512224 (April 17, 2014). We deem Dulin to be instructive, but not dispositive of this appeal. Dulin hinged on analysis of KRS 533.040(2), which directs the running of probation be suspended between the date of a violation and the date of restoration, a tolling provision the Supreme Court concluded is triggered by operation of law without any trial court action. In contrast, the statute on which this appeal turns is KRS 533.020 which allows a probation period to be modified or enlarged, but only prior to its expiration or termination, and upon completion results in final discharge so long as there are no pending warrants and probation has not been revoked. We now chart our own course.
Jackson's first of three claims is that his motion to recuse the prosecutor should have been the subject of an evidentiary hearing. Our review shows—and Jackson admits—he never requested an evidentiary hearing. Furthermore, his recusal motion was heard at the beginning of the revocation hearing.
We review a trial judge's denial of a motion to recuse for an abuse of discretion. See Hodge v. Commonwealth, 68 S.W.3d 338, 345-46 (Ky. 2001). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
The record reveals Jackson filed a pro se motion to recuse the prosecutor on July 24, 2008, stating "the motion will be made on Monday, the 9th day of June
The record further reveals that after filing the recusal motion on July 24, 2008, Jackson filed a second pro se Motion to Recuse containing similar allegations and demands, and stating the motion would "be heard on Monday, September 29, 2008 at 8:45 am in the above Court." No recording of a hearing on that date has been provided to us, and the designation of record is silent as to any event occurring on that date.
When the probation revocation hearing commenced on December 8, 2008, defense counsel raised, as a preliminary matter, Jackson's previously filed pro se motions to recuse the prosecutor and requested a ruling. The matter was explored solely on Jackson's written assertions—repeated at the hearing by defense counsel—and the prosecutor's response. Thereafter, the trial court denied the motion to recuse. There was no defense request for an opportunity to locate or subpoena witnesses or to muster proof. Jackson did not testify, nor did he offer witnesses or proof.
We begin our analysis with SCR
(Emphasis added). In his brief, Jackson cites several fact patterns in which a prosecutor was disqualified from a particular case. None of the cited cases is on all fours with the facts of this appeal. As the Commonwealth argues, there was no proof the prosecutor was aware of the dash camera video and withheld it from the defense. Instead, the allegation was that a police officer was aware of the video and did not timely provide it to Van De Rostyne so he could disclose it to the defense during discovery.
SCR 3.130 (3.8) goes hand in hand with RCr
Having never requested a hearing from the trial court, and not requesting palpable error review from this Court under RCr 10.26, Jackson cannot now claim error because he did not receive a second hearing. As an appellate court, our role is to review alleged errors made by the trial court. If the trial court had no opportunity to rule on the issue, there is nothing for us to review.
The next issue we address is whether the trial court had jurisdiction to revoke Jackson's probation at a hearing on December 8, 2008. The question arises because by its original terms, the five-year probationary period imposed by Judge McDonald on August 21, 2003, expired on August 21, 2008. The question we explore is whether Jackson's plea agreement in a wholly unrelated case tolled his probated sentence on the 2000 cases. We are convinced it did.
KRS 533.020(1)
The Commonwealth acknowledges the revocation order was entered four months after the original term would have expired, but maintains probation did not end on December 8, 2008, because on May 9, 2005, Jackson agreed as part of plea negotiations on Indictment No. 03-CR-1973 to "toll the statutory five year period on Indictment No. 00CR0667 and 00CR1372, which sentences must run consecutive (if revoked) with this eight year sentence." In the Commonwealth's view, Jackson was on active probation during the revocation hearing on December 8, 2008, and when the written revocation order was entered on December 11, 2008. Jackson does not dispute that he agreed to suspend the five-year probationary period in lieu of revocation. He alleges, however, that because the agreed upon tolling was mentioned only in the judgment on Indictment No. 03-CR-1973, and the two 2000 cases were never reopened to reflect the tolling of the original term, his 2005 plea agreement had no effect on the 2000 cases.
We disagree and deem the Commonwealth's reliance upon Commonwealth v. Griffin, 942 S.W.2d 289 (Ky. 1997), to be most persuasive. Griffin pled guilty to multiple offenses in March 1985. Two months later, he was placed on probation for five years. In March 1989, when Griffin had failed to pay restitution—a condition of probation—the Commonwealth filed a revocation motion. At a hearing on March 17, 1989, Griffin's attorney relayed to the court two requests from his client—do not send him to jail, and extend his probation five more years to allow him to resume paying restitution. The trial court granted Griffin's request and extended the probationary period another five years. On May 4, 1992, when Griffin was again behind in paying restitution, the Commonwealth filed a second revocation motion. The matter was heard August 21, 1992, and five days later, final judgment of revocation was entered revoking probation. Griffin sought post-conviction relief alleging the trial court lost jurisdiction to revoke his probation five years after the original sentencing date—May 1990.
On discretionary review, the Supreme Court of Kentucky held a defendant may waive the requisites of KRS 533.020(4) without divesting the trial court of subject matter jurisdiction to revoke probation. As our Supreme Court stated:
Griffin, 942 S.W.2d at 290-91. Having determined Griffin's probationary period had been extended by the trial court for another five years, the next question was whether that action was prohibited by KRS 533.020(4). The Supreme Court stated the purpose of the five year limit "is to protect the convicted defendant from being subjected to a probationary status of indefinite duration," and concluded that purpose would not be served by precluding a
Griffin, 942 S.W.2d at 291 (emphasis in original). Quoting Collins v. Duff, 283 S.W.2d 179, 182 (Ky. 1955), the Supreme Court went on to say,
Griffin, 942 S.W.2d at 291. In the final analysis, Griffin was estopped from attacking the trial court's jurisdiction to revoke his probation because he "voluntarily requested the five year extension of his probationary period, and he then accepted the benefits of the court's granting of the request (i.e., he avoided incarceration)." Id. at 292.
While Griffin is not factually on all fours with the present case, it does have striking similarities. It focuses on the same statute, KRS 533.040(2); it resulted at least partially from a probationer's request that the probationary period be extended in lieu of imminent revocation; and, the request was made while the probation was active. Similarly, Jackson struck a bargain with the Commonwealth whereby he avoided immediate revocation. In return for that bargain, he agreed the period of probation on the 2000 cases would be tolled while he was incarcerated on the 2003 indictment—which amounted to about two years. By striking the plea agreement and asking the court to accept his guilty plea, Jackson thereby acknowledged the trial court's jurisdiction to extend his term of probation on the 2000 cases.
Duncan, 451 S.W.2d at 631 (internal citations omitted).
In accepting Jackson's guilty plea—which the trial court found to be knowing and voluntary—and then incorporating the tolling language into the judgment on the 2003 case, tolling became an integral part of the judgment entered by Judge Wine in 2005. Were we to ignore Jackson's agreement, we would be giving our imprimatur to a deliberate "bait and switch" in which Jackson was charged with multiple new offenses committed while he was on probation, strung the Commonwealth along with complicated plea negotiations he ultimately rejected, and even moved to delay the revocation hearing on July 10, 2008—more than one month before the original probationary period was to expire—and again on October 20, 2008, and then complained because his probation was untimely revoked. Jackson clearly requested delays on more than one occasion and was thereby, at least partially responsible for the probation revocation hearing occurring after the original probationary period was set to expire. Thus, he cannot now be heard to complain about the timing of the revocation hearing. See Dulin, 2014 WL 1512224, at *1; Conrad, 315 S.W.3d at 316 (citing Huffines v. Commonwealth,
To rule as Jackson urges would require us to ignore his voluntary agreement, and that we will not do. Under Griffin and Duncan, the trial court properly exercised its discretion and jurisdiction in revoking probation.
Jackson's third and final claim of error is that he was denied basic due process by the trial court's failure to make written findings of fact in support of its order revoking probation. We agree and remand for the limited purpose of the trial court making findings of fact as required by Commonwealth v. Marshall, 345 S.W.3d 822, 833 (Ky. 2011).
"Findings are a prerequisite to any unfavorable decision and are a minimal requirement of due process of law." Rasdon v. Commonwealth, 701 S.W.2d 716, 719 (Ky. App. 1986) (citing Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)). While Jackson did not request findings, CR
Here, the trial court found only, "after consideration of all relevant factors," that "Jackson violated the terms of his probation." This statement is a conclusion of law; not a finding of fact, and the "relevant factors" that led to the trial court's conclusion are central to resolution of this scenario. If probation was revoked due to Jackson not fully disclosing his probationary status to Officer Stagner—as Jackson suggests may have happened—such was a clear denial of due process since the Commonwealth did not allege lack of candor as grounds for revocation and in summation the prosecutor commented upon Jackson not telling Officer Stagner he was on probation from a Kentucky conviction. "A written notice of the grounds for the proposed revocation is an absolute essential for [a revocation hearing]." Rasdon, 701 S.W.2d at 719; KRS 533.050(2).
While the overwhelming proof focused on Jackson's most recent crimes, there was fleeting testimony from Officer Stagner that Jackson had failed to fully disclose all relevant details to him, specifically that he was on probation from a Kentucky court. As a result, testimony about Jackson's lack of candor may have influenced the trial court's decision to revoke probation. No matter how brief that mention was, no amount of argument or analysis can overcome the absence of any findings of fact—either oral or written. For this reason, under Marshall, remand for findings of fact is necessary.
For the forgoing reasons, we affirm the trial court's denial of the motion to recuse the prosecutor and its entry of an order of probation revocation after the original period of probation had expired because Jackson had agreed to toll the probationary term while he was incarcerated on another conviction. However, we remand for the limited purpose of further proceedings at which the trial court shall make findings of fact regarding the grounds for revocation.
ALL CONCUR.
(Footnote omitted). The last quoted sentence mentions "a twenty-year sentence that Jackson was apparently on probation for"—a reference to the two indictments at the heart of this appeal over which Jackson claims the trial court lost jurisdiction to revoke. In the 2010 opinion quoted above, the Court of Appeals panel held in pertinent part that the trial court correctly ordered an eight-year sentence (not to be confused with the eight-year sentence previously imposed by Judge Wine in Indictment No. 03-CR-1973) to be served consecutively to the twenty-year sentence imposed in 2000 because KRS 533.060(2), prohibiting concurrent sentencing when a new felony is committed while on parole, probation, shock probation or conditional discharge, trumps KRS 533.040(3), requiring concurrent service of a probated sentence revoked more than ninety days after the grounds for revocation became known.
