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Court of Appeals of Kentucky.


NO. 2009-CA-002294-MR

Decided: March 25, 2011

BEFORE:  LAMBERT, NICKELL, AND WINE, JUDGES. BRIEF FOR APPELLANT:  Marcus E. Fannon Manchester, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Christian K.R. Miller Assistant Attorney General Frankfort, Kentucky



Eddie Michael Feltner appeals from the Clay Circuit Court's November 10, 2009, order voiding pre-trial diversion and a December 1, 2009, judgment sentencing him to five years in prison.   For the reasons stated herein, we affirm the trial court's ruling.

Feltner's pre-trial diversion was voided after a revocation hearing in the Clay Circuit Court on November 10, 2009.   On December 1, 2009, a judgment and sentence was entered sentencing Feltner to five years' imprisonment for one count of trafficking in a controlled substance, second degree.   At sentencing, Feltner argued that he was entitled to more jail credit than was on the pre-sentence investigation report.   The trial court offered to give Feltner 200 days of jail credit, which he accepted, and he was formally sentenced.

On December 9, 2009, Feltner filed a notice of appeal, and he now appeals the trial court's order voiding his pre-trial diversion and sentencing him to five years' imprisonment.   A designation of record is neither included in the record, nor is one noted on the docket sheet.   The record in the instant case contains seven pages of certified trial record and one video.   That video only contains the November 30, 2009, sentencing hearing, and does not contain a record of the November 10, 2009, revocation hearing proceedings.

On June 14, 2010, the Commonwealth filed a motion to strike Feltner's brief due to its non-compliance with briefing requirements.   That motion additionally noted the incomplete trial record.   Feltner filed no response.   On August 27, 2010, the Commonwealth's motion was passed to this panel for review upon the merits.

We agree with the Commonwealth that Feltner's brief contains substantial briefing errors.   It does not contain a statement of points and authorities as required by Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(iii), nor does it contain citations to the record in the statement of the case.   See CR 76.12(4)(c)(iv).   Finally, it contains citations to only two statutes and no case law in its “argument” section, which presumably violates CR 76.12(4)(c)(v).

When a party fails to comply with the briefing requirements of CR 76.12, this court may ignore the deficiency and review the issue raised, strike the brief or refuse to consider an issue, or review the issue for manifest injustice only.  Elwell v. Stone, 799 S.W.2d 46, 47 (Ky.App.1990).   In the instant case, we shall review for manifest injustice only.  Id.

However, our review is hindered by the incomplete record in this case.   Feltner argues specifically that the trial court erred by not permitting him a meaningful hearing prior to entry of its order voiding his pre-trial diversion.   Yet the record on appeal contains none of the revocation proceedings.  “It is the appellant's duty to present a complete record on appeal.”  Steel Technologies, Inc.v. Congleton, 234 S.W.3d 920, 926 (Ky.2007).   See also Johnson v. Commonwealth, 292 S.W.3d 889, 894 (Ky.2009);  Chestnut v. Commonwealth, 250 S.W.3d 288, 303 (Ky.2008) (“It is incumbent upon Appellant to present the Court with a complete record for review.”);  Graves v. Commonwealth, 283 S.W.3d 252, 255-56 (Ky.App.2009) (duty to provide complete record applies even to pro se litigants, even under the “lesser standard” imposed upon them than upon attorneys). Double

“When the record is incomplete, this Court must assume that the omitted record supports the trial court.”  Chestnut, 250 S.W.3d at 303 (internal citation omitted).   Because there is nothing in the record to support Feltner's allegations of error, we must assume that the record supports the trial court's decision to revoke Feltner's pre-trial diversion.   Therefore, we cannot say that a manifest injustice has occurred.

Accordingly, we affirm the November 10, 2009, order of the Clay Circuit Court revoking Feltner's pre-trial diversion and sentencing him to five years' imprisonment.