RICHARDSON v. COMMONWEALTH

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Court of Appeals of Kentucky.

Solomon RICHARDSON, Appellant v. COMMONWEALTH of Kentucky, Appellee.

No. 2006-CA-001568-MR.

Decided: August 17, 2007

Before THOMPSON and WINE, Judges; HENRY,1 Senior Judge. Julia K. Pearson, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, for appellant. Gregory D. Stumbo, Attorney General of Kentucky, Kristin N. Logan, Assistant Attorney General, Frankfort, KY, for appellee.

OPINION

Solomon Richardson appeals from an order of the Campbell Circuit Court revoking his probation. Concluding that Richardson's due process rights were violated, we reverse and remand.

On September 30, 2004, Richardson was indicted by a Campbell County grand jury for second-degree forgery and for operating a motor vehicle on a suspended or revoked driver's license. Subsequently, he pled guilty, and on January 26, 2005, he was sentenced to three years' imprisonment which was probated for five years. Soon thereafter, Richardson's probation was transferred to Hamilton County, Ohio.

On May 31, 2006, Tara Giust, a Kentucky probation officer, signed an affidavit stating that Richardson had violated a condition of his probation by threatening his Ohio landlord, Jeff Lewis. Consequently, on July 6, 2006, a probation revocation hearing was held in Campbell County, Kentucky. The Commonwealth presented two witnesses to establish that Richardson had violated a condition of his probation by threatening his landlord. After calling one witness in his defense, Richardson testified on his own behalf.

Several days after the revocation hearing, the trial court issued an order that provided, in pertinent part:

This matter was before the Court on July 7, 2006 2 for hearing to revoke Defendant's probation and on Defendant's Motion to Dismiss. Counsel for the parties and the Defendant were present. Based upon the testimony adduced, argument of counsel and a review of the record herein, the Court finds as a matter of fact that the Defendant has violated the terms and conditions of his probation and, thus, concludes as a matter of law that the Defendant's probation should be revoked. Accordingly;

IT IS ORDERED that the Defendant's probation is revoked. After the entry of this order, this appeal followed.

On appeal, Richardson's sole allegation of error is that the trial court's order failed to adequately explain its decision to revoke his probation. Consequently, he alleges that his constitutional due process rights were violated.

On appellate review we observe that the United States Supreme Court has established the minimum due process requirements for probation revocation proceedings in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), which adopted the due process requirements set out in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), for parole revocation proceedings.

Among the specifically enumerated minimum due process requirements is that the fact-finder must issue a written statement of the evidence relied on and the reasons for revoking a defendant's probation. Morrissey, 408 U.S. at 489, 92 S.Ct. 2593. Moreover, this Court has held that a trial court's “[f]indings are a prerequisite to any unfavorable decision and are a minimal requirement of due process of law[,]” in revocation hearings. Rasdon v. Commonwealth, 701 S.W.2d 716, 719 (Ky.App.1986). With these principles set out, we turn to the issue of whether or not the trial court's findings were constitutionally adequate.

After reviewing the record, we conclude that the trial court's order revoking Richardson's probation violated his due process rights because it did not adequately set out the evidence relied on nor the reasons for revoking Richardson's probation. In this case, the trial court's order provided only that Richardson's probation was revoked because he had violated the terms and conditions of his probation. While the order makes a generalized statement regarding revocation, it does not specify which term or condition was violated nor state what evidence was relied on to revoke Richardson's probation. Put simply, the trial court's order does not satisfy the minimum due process standard set out in Gagnon.

Having concluded that Richardson's due process rights were violated, we reverse and remand this case to the trial court to make written findings in accordance with Gagnon. Rasdon, 701 S.W.2d at 719. The trial court need not conduct a new hearing but must make written findings that comport with minimum due process.

For the foregoing reasons, the order of the Campbell Circuit Court is reversed and remanded for further proceedings consistent with this opinion.

THOMPSON, Judge.

ALL CONCUR.