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THE ADVOCATE Volume 30, No.1 January 2008
finding that the defendant “made every reasonable effort to comply with the conditions imposed
upon him,” (at 615) the Court of Appeals vacated the revocation and said that “when there is no
evidence to support the court’s decision to revoke, the revocation of that probation is totally
arbitrary.” (At 625.) See also Baumgardner v. Commonwealth, 687 S.W.2d 560 (Ky.App.1985), in
which there were no findings of fact, and the only evidence presented at the hearing was that the
defendant had been acquitted of the charges for which he was being revoked.
Remember, too, that a court cannot revoke a probated sentence if the defendant did not have an
attorney when the sentence was imposed and probated. Alabama v. Shelton, 535 U.S. 654, 122
S.Ct. 1764, 152 L.Ed.2d 888 (2002). See also Stone v. Commonwealth, 217 S.W.3d 233 (Ky.2007).
Nevertheless, the case law also reflects the fact that the due process rights of a defendant at a
revocation hearing are not equivalent to those of a defendant in a criminal trial. (See, e.g., Robinson
v. Commonwealth, 86 S.W.3d 54 (Ky.App.2002), for the proposition that a revocation hearing is not
a second criminal prosecution.) For instance:
Appointment of Counsel – Appointment of counsel at a revocation hearing should be determined
on a case-by-case basis and is not an absolute right, especially “if the grounds for revocation are
not in dispute, as in the case of a conviction for a new offense.” Dunson v. Commonwealth, 57
S.W.3d 847, 849 (Ky.App.2001), quoting Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d
656 (1973). Nevertheless, remember that KRS 533.050(2) requires that counsel be appointed.
Standard of Proof – The standard of proof is not beyond a reasonable doubt, but rather preponderance
of the evidence. Murphy v. Commonwealth, 551 S.W.2d 838 (Ky.App.1977), Radson v.
Commonwealth, 701 S.W.2d 716 (Ky.App.1986). For this reason, it is not necessary for a defendant
to be convicted on a new charge in order to be revoked on an old one. Tiryung v. Commonwealth,
717 S.W.2d 503 (Ky.App.1986).
Discovery – RCr 7.24 does not apply to revocation hearings, and the defendant was not entitled to
the tests used, the lab standards, and the amount of marijuana found in the defendant’s system.
The defendant’s revocation was proper in as much as the defendant had in fact tested positive for
marijuana. Robinson v. Commonwealth, 86 S.W.3d 54 (Ky.App.2002).
Confrontation – The 6 th Amendment right to confront is not absolute in informal procedures such
as probation revocations. Affidavits, depositions, documents, and other reliable substitutions for
live witnesses are allowable when witnesses are unavailable or great hardship would be involved
in producing them. Marshall v. Commonwealth, 638 S.W.2d 288 (Ky.App.1982).
Evidence – The rules of evidence do not apply to revocation hearings. KRE 1101(d)(5). Hearsay
is admissible. Marshall v. Commonwealth, 638 S.W.2d 288 (Ky.App.1982). Illegally seized evidence
is admissible. Tiryung v. Commonwealth, 717 S.W.2d 503 (Ky.App.1986). Statements made in
violation of Miranda are admissible. Childers v. Commonwealth, 593 S.W.2d 80 (Ky.App.1980).
PAROLE ELIGIBILITY
The date set by the Department of Corrections as the date of a state prisoner’s parole eligibility is
a fixed date. It is not brought closer by any kind of good-time, work-time, or educational achievement
credit.
KRS 439.3401(2) says, “Violent offenders may have a greater minimum parole eligibility date than
other offenders who receive longer sentences, including a sentence of life imprisonment.” This
seems plain enough, but it is not the law. For any sentence over 23 years and 6 months, the parole
eligibility is 20 years. No sentence can have a longer parole eligibility than a life sentence. Hughes
v. Commonwealth, 87 S.W.3d 850 (Ky.2002).
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