ALLAN D. GRUNDY APPELLANT
COMMONWEALTH OF KENTUCKY APPELLEE
APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE MITCHELL PERRY, JUDGE ACTION NO. 06-CR-002151
BRIEF FOR APPELLANT: M. Brook Buchanan Assistant Public Advocate Frankfort, Kentucky.
BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky James C. Shackel ford Assistant Attorney General Frankfort, Kentucky.
BEFORE: DIXON, LAMBERT, AND TAYLOR, JUDGES.
Allan Grundy appeals from the May 31 and August 25, 2011, orders of the Jefferson Circuit Court denying his Kentucky Rules of Civil Procedure (CR) 60.02 motion seeking to vacate the order revoking his probation and his motion to alter, amend, or vacate pursuant to CR 59.05. After careful review, we reverse and remand.
After a jury trial, Grundy was convicted of illegal possession of a controlled substance in the first degree (cocaine) and illegal possession of drug paraphernalia. The jury recommended a sentence of one year's imprisonment. A judgment of conviction and sentence of probation was entered on December 17, 1997, sentencing Grundy to one year, probated for a period of five years.
On October 16, 2002, the Commonwealth filed a motion to revoke probation, stating that Grundy had been convicted of another felony and consequently probation and parole authorities were requesting that a revocation hearing be held. The Commonwealth's motion to revoke was noticed to be held on October 21, 2002. Grundy was not present in court that day, and the trial court appointed him an attorney and indicated it would set a hearing in December, sixty days later. Thereafter, an order for appearance of prisoner was entered on October 23, 2002, directing that Grundy be transported to the Jefferson Circuit Court for a revocation hearing.
Ultimately, the matter came before the trial court on December 18, 2002. The trial court stated that the case involved a judgment entered on December 17, 1997, "five years ago yesterday, as a matter of fact." After brief argument of counsel, the court indicated it would be entering an order revoking Grundy's probation and sentencing him to one year in prison. The court entered an amended order revoking his probation on January 23, 2003, adding the provision that the revoked sentence was to run consecutively to Grundy's sentence in another case, 02-CR-1479.
On October 26, 2010, Grundy filed a pro se motion to void the judgment pursuant to CR 60.02(e) and (f). Therein, Grundy asserted that the trial court violated his due process rights when it proceeded without jurisdiction to revoke his probation after his term of probation had expired. The trial court denied Grundy's motion by order entered May 31, 2011. On June 15, 2011, Grundy filed a pro se motion to alter, amend, or vacate pursuant to CR 59.05. That motion was denied on August 25, 2011. Grundy now appeals the May 31, 2011, and August 25, 2011, orders of the Jefferson Circuit Court.
The standard of review of an appeal involving a CR 60.02 motion is whether the trial court abused its discretion. Brown v. Commonwealth, 932 S.W.2d 359, 362 (Ky. 1996). For a trial court to have abused its discretion, its decision must have been arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Grundy argues on appeal that the trial court abused its discretion and denied him due process of law when it denied him relief under CR 60.02. He argues that Kentucky Revised Statutes (KRS) 533.020(1) provides that the trial court may revoke probation if a defendant commits an additional offense or violates a condition of his probation at any time "prior to the expiration or termination of the period of probation." Grundy relies on Conrad v. Evridge, 315 S.W.3d 313, 315 (Ky. 2010), which states:
The statute states in clear and unambiguous terms that revocation must occur "prior to the expiration . . . of probation." There is no plausible interpretation other than that probation must be revoked, if at all, before the probationary period expires. The circuit court has no jurisdiction to revoke Appellee's probation, or to hold a revocation hearing, after that time. Curtsinger v. Commonwealth, 549 S.W.2d 515, 516 (Ky. 1977).
Grundy argues that because he was placed on probation on December 17, 1997, the five-year period in which a court could revoke expired on December 17, 2002, and therefore the trial court lacked ...