The opinion of the court was delivered by: Moore, Judge
RENDERED: MARCH 15, 2013; 10:00 A.M.
APPEAL FROM MCCRACKEN CIRCUIT COURT HONORABLE TIMOTHY KALTENBACH, JUDGE ACTION NO. 10-CR-00207
AFFIRMING ** ** ** ** ** BEFORE: CLAYTON, LAMBERT, AND MOORE, JUDGES.
Kenneth Kaletch appeals the McCracken Circuit Court's order revoking his probation. After a careful review of the record, we affirm because Kaletch's double jeopardy rights were not violated, KRS 439.3107 is inapplicable, and there was no palpable error regarding his KRS 439.3106 claim.
I. FACTUAL AND PROCEDURAL BACKGROUND
Kaletch was indicted on one count of the use/possession of drug paraphernalia, first offense; one count of first-degree possession of a controlled substance -- cocaine, second offense; and one count of being a second-degree persistent felony offender (PFO-2nd). The Commonwealth provided an offer on a plea of guilty, which stated that if Kaletch entered guilty pleas to the drug paraphernalia and possession of a controlled substance charges, then the Commonwealth would dismiss the PFO-2nd charge, and would recommend a sentence of twelve months for the drug paraphernalia charge and a sentence of seven years for the possession of a controlled substance charge. Kaletch moved to enter a guilty plea in accord with the Commonwealth's offer on a plea of guilty.
A plea hearing was held, and the court accepted his guilty plea. The PFO-2nd charge was dismissed. A subsequent sentencing hearing was held, and following that hearing, the court entered its final judgment sentencing Kaletch to twelve months of imprisonment for his conviction for the use/possession of drug paraphernalia, first offense, and to seven years of imprisonment for his conviction for first-degree possession of a controlled substance, cocaine, second offense. The sentences were ordered to run concurrently to each other for a total sentence of seven years of imprisonment, but they were ordered to run consecutively to all other sentences. The court then ordered that imposition of Kaletch's sentence was withheld and sentenced Kaletch to a period of five years of probation.
Less than one year after sentencing, the Commonwealth moved for the issuance of a bench warrant against Kaletch, asking that he be "arrested to show cause why his probation should not be revoked" based upon the report of Kaletch's probation officer, which stated that he had tested positive for "use of a controlled substance, cocaine, on December 14, 2011 and December 19, 2011." A bench warrant was issued for Kaletch's arrest for the purpose of having him show cause why his probation should not be revoked.
A probation revocation hearing was held, during which Kaletch's probation officer, Michelle Alexander, testified that he had completed the CenterPoint Recovery Center program in June 2011, when he graduated from the program. After he tested positive for cocaine use on December 14, 2011, Ms. Alexander referred him to a social services clinician for additional treatment consideration. When he met with the social services clinician on December 19, 2011, he again tested positive for cocaine use and admitted the same. Because he had been through four treatment programs, Kaletch had exhausted all of the possible treatment options, so the social services clinician recommended that he attend ninety Narcotics Anonymous meetings in ninety days.
Kaletch's counsel argued during the probation revocation hearing that the court should consider graduated sanctions pursuant to KRS*fn1 439.3107 and KRS 439.3108.*fn2 Upon further questioning from the court, the probation officer stated that the referral to the social services clinician was a sanction and the further recommendation for him to attend ninety meetings in ninety days was another sanction, but that both were based upon his first failed drug test of December 14, 2011. Kaletch's counsel argued that he had already been sanctioned, and that revocation of his probation would constitute a double jeopardy violation. However, the court ordered Kaletch's probation revoked based upon his second failed drug test on December 19, 2011.
Kaletch now appeals, contending that: (a) his double jeopardy rights were violated when the circuit court revoked his probation after he was sanctioned by the social services clinician; and (b) the circuit court abused its discretion when it failed to ...