JUSTICE CUNNINGHAM MAKES SENSE – DISSENT OPPOSES GIVING WEIGHT TO DRUG COURT RULINGS —DRUG COURT IS NOT A REAL COURT

 

 Com. v. Nicely, 326 S.W.3d 441 (Ky., 2010)

III. Conclusion

Because drug court is a treatment program, monitored and enforced by the court, that is frequently used as the primary condition of probation with addicted defendants, the trial court has the authority to modify a defendant’s probation rather than revoking him for program violations. This modification may include requiring the defendant to serve days in jail. Participating defendants in drug court specifically agree to the program, and are made aware before entering that they may be subject to such sanctions. Days served as modifications of probation are days served before the commencement of imprisonment, [326 S.W.3d 450] and are thus treated as time spent in custody pursuant to KRS 532.120(3). Consequently, the Appellee is entitled to custody credit against the maximum term of his sentence on the underlying offense for all the days he served as drug court sanctions. The Court of Appeals is affirmed, but on other grounds, and this case is remanded to the trial court for proceedings consistent with this Opinion.

MINTON, C.J.; ABRAMSON, SCHRODER, SCOTT and VENTERS, JJ., concur. CUNNINGHAM, J., dissents by separate opinion.

CUNNINGHAM, J., dissenting:

With great deference to the writing of Justice Noble, I respectfully dissent.

In speaking for the majority, she is correct in stating that the drug court program has been a resounding success. It is also correct for me to say that my sister on the bench, Justice Noble, deserves a great share of the credit for the establishment and success of this constructive program.

I furthermore agree with the majority in its reasoning and analysis of the contempt process utilized by the trial court in this case. However, I strongly disagree with the Court’s holding that sanctions imposed by the drug court must be converted into credit on the sentence when the defendant’s probation is revoked.

As effective as they have been in this state, there is still much confusion among the trial judges as to exactly the proper status of drug courts legally. And, of course, their status determines what laws apply as to their operation and functioning. I fear our holding here today will only further confuse members of the trial bench.

First of all, “drug court” is a misnomer. It is not a court. The majority admits this. Says Justice Noble: “Stated simply, drug court is a treatment program….” It is a supervisory and administrative arm of the court. But it is not a court of law. While proceedings in drug court may vary across the state, there are elements common to them all.

It is not a court of record. In fact, confidentiality pervades the entire drug court process. The public, including the jury which may have imposed it, has no clue that the sentence is being effectively reduced behind closed doors.

Defendants voluntarily participate in the program. The extent and purity of this “voluntariness” will vary greatly from one judge to another. Sometimes it is a choice of poisons. For others, it is truly a consensual involvement from which one may opt out at anytime without penalty.

Judges also voluntarily take part in the program. Drug court is not a mandated judicial function. The judges who establish and administer drug court do so of their own volition and good will.

In truth, the sanctions which the majority convert today as credit for a sentence set by a judge or jury are not even imposed by a duly constituted, authorized and mandated court. It takes place at a “session.”

Our Supreme Court Amended Drug Court Rules of Administrative Procedure define “session” as “the scheduled appearance of the participant before the drug court judge, during which the progress of the participant is reviewed and incentives may be granted or sanctions imposed.” (Emphasis added.)

Two noteworthy items about this definition. It is not a court of law. There is not a criminal defendant, but a “participant.”

There are no due process requirements.

[326 S.W.3d 451]

No findings, written or otherwise, are required as in probation modifications.

There is no right to appeal from its proceedings.

At the sessions in drug court, where sanctions are imposed, the defendant does not have the right to counsel, nor is the Commonwealth required to be represented.

KRS 532.120(3) states: “Time spent in custody prior to the commencement of a sentence as a result of the charge that culminated in the sentence shall be credited by the court imposing sentence toward service of the maximum term of imprisonment.” (Emphasis added.) Sanctions imposed by drug court are never the result of the charge for which a defendant pled guilty or was placed on probation. They are the result of the defendant being in a drug treatment program and deemed appropriate for treatment.

The majority analogizes these sanctions with confinement given for probation violations. There is a pivotal difference. First of all, changing the conditions of probation, including imposition of jail time, requires an open hearing in a court of law. KRS 533.050. That statute more specifically states: “The court may not revoke or modify the conditions of a sentence of probation or conditional discharge except after a hearing with defendant represented by counsel and following a written notice of the grounds for revocation or modification.” KRS 533.050(2). We just recently emphasized the need for due process scrutiny in Cameron Hunt v. Commonwealth, 326 S.W.3d 437 (Ky.2010).

There is no hearing for imposition of sanctions. No witnesses are required. No right to confrontation. No right to counsel. No right against self-incrimination. No right to appeal. More importantly, as this case highlights, the Commonwealth has no right to appear or have any say as to the sanctions. If he or she attends, they do so only upon invitation from the judge. And, as previously stated, all is cloaked behind the veil of confidentiality.

In this case, the trial court showed tremendous patience and leniency with the troublesome Appellee. On July 21, 2005, Nicely pled guilty to trafficking in drugs. Even before Nicely was formally entered into drug court, a bench warrant was issued for him for failure to abide by “drug court policy.” He was ordered to continue on probation and drug court. In January of 2006, Nicely was again arrested and placed in custody until early February, when he was released. Between April 7, 2006 and April 16, 2007—over a year—he was remanded to serve between 7 and 14 days on seven different times for violations of “terms and conditions” of drug court. Finally, in May 2007, his probation was revoked.

Of course, we have no record of those various remands for drug court violations. We know that neither the Commonwealth Attorney nor defense lawyer had any right to be present. The sweeping rule by the majority today will, in effect, allow our judges state wide to change judicial sentences without any benefit of the adversarial system where both the interest of the defendant and society can be guarded.

It is unfair to allow Nicely credit for these remands toward his sentence when the Commonwealth had no guaranteed say in either the appropriateness or severity of these sanctions. I would strongly submit that “sanctions” cannot be considered the imposition of “time spent in custody” under KRS 532.120(3), because they are not imposed by a court of law.

It is not just the location which determines custody, but also the authority to [326 S.W.3d 452] impose it. A remand to jail as part of the treatment program is no different than a referral by drug court to treatment at The Hope Center or Crossroads. Confinement of a sort is required in both if the person is to continue in drug court. But, to my knowledge, courts are not required to give jail credit for time spent in treatment centers. It is not considered “time spent in custody.”

I would submit that if criminal defendants are afforded credit for drug court sanctions, prosecutors may well want to have a guaranteed say in the sanctions imposed. They should. The Commonwealth should be a part of any proceeding where the legally constituted sentence that has been imposed by the court as a “result of the charge” is lessened or diminished.

The unfettered discretion of drug court judges, in administering what is a volunteer program, is absolutely critical to the treatment and rehabilitation of drug offenders. We will begin to clutter up this valuable attribute of our drug court when we allow the administrative function of the court to become penal. It becomes penal if we give jail credit for sanctions under the auspices that the time served for those sanctions is the “result of the charge” for which he or she has been convicted.

Our decision here today blurs the critical line between a court “case or controversy” and a treatment arm of the court. I fear that we are taking that first wayward step into diluting drug courts of that broad discretion, participatory decision making by professionals, and informality which so invigorates this program. In doing so, an unclear signal is sent to trial judges as to which hat they are wearing when they sit as drug court judges.

To my mind, it takes the imagination of a child on Christmas Eve to contort sanctions given at a treatment session as “time in custody” spent as result of the charge in the judgment. Because of the need of clear guidance to our drug court judges, and on behalf of the drug court program itself, I respectfully dissent.

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