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Hill v. Com.10/8/2004
Robert Hill appeals from an order of the Henderson Circuit Court revoking his probated sentence and remanding him to custody to serve the remainder of a twelve-month sentence on charges of criminal coercion and operating a motor vehicle while his license was suspended for driving under the influence. At issue is Hill's contention that the trial court erred in revoking his probation. Murphy v. Commonwealth, Ky.App., 551 S.W.2d 838 (1977), outlines the due process rights afforded to a person on probation. Because we agree with Hill's contention that the trial court's order failed to state the evidence relied on in support of its decision to revoke probation, we vacate the trial court's order and remand this case for further proceedings.
Hill was originally indicted on charges of custodial interference and operating a motor vehicle on a DUI suspended license. He pled guilty to the amended charge of criminal coercion and the traffic charge and was sentenced to twelve months and ninety days respectively with the jail sentences to run concurrently. Hill's first motion for shock probation, filed one month after he was sentenced to jail, was overruled. The trial court granted Hill's second motion for shock probation on December 23, 2002, although the written order of probation is not found in the record. On December 27, 2002, the trial court issued a warrant for Hill's arrest stating that it had probable cause to believe he had violated the terms of his probation by committing a new offense. The arrest warrant was attached to an affidavit from Hill's probation officer alleging that Hill had violated the terms of a domestic violence order issued to protect his estranged wife and that the police were seeking charges of fourth-degree assault and violation of a DVO against Hill.
The trial court held a probation revocation hearing the following month. Hill's wife and mother-in-law testified that he had struck his wife during an argument, and Hill's counsel was present to cross-examine them regarding their account of events. Hill also had the opportunity to testify in his defense and denied assaulting his wife. He also stated that he had never been informed of the terms of his shock probation and that he first met his probation officer on December 27, 2002, which was after the alleged assault on his wife. At the conclusion of the hearing, the trial court entered an order which found that Hill had violated his probation by committing a new offense, revoked his probation, and ordered him to serve out the remainder of his sentence. This appeal followed.
Hill argues that he was denied due process because he was unaware of the conditions of his probation, the evidence was insufficient to prove that he violated the terms, he should not have been revoked for the alleged violation, and the trial court failed to state in writing the evidence which supported his revocation. We will deal first with the non-dispositive issues raised by Hill. First, with regard to his contention that he was not advised about the terms of his shock probation, Hill has cites our prior decision in the Murphy case as outlining all of the due process rights he is entitled to in a probation revocation proceeding. The rights listed in Murphy are as follows:
*2 (1) a written notice of the claimed violations of [probation] are served, (2) a disclosure of the evidence to be used is made, (3) an opportunity is granted to be heard in person, present witnesses and documentary evidence, (4) confrontation and cross-examination of witnesses is afforded (unless a specific finding for good cause is made to the contrary), (5) a neutral and detached hearing body conducts the procedure and (6) a written statement is made by the fact finder(s) as to the evidence relied on and the reasons fo
Page 1 2 Kentucky DUI Attorneys
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