JUSTICE SCOTT DISSENT – CALLS FOR AVOIDANCE OF ABSURD RESULT IN PROBATION REVOCATION PROCEEDINGS – CUNNINGHAM JOINS IN DISSENT

 

Commonwealth of Ky. v. LOVE (Ky., 2011)

SCOTT, J., DISSENTING: I respectfully dissent from the majority’s decision — holding that KRS 533.040(3) requires the completion of probation revocation proceedings within ninety days — because it effectively eliminates the Commonwealth’s ability to revoke the probation of a federally incarcerated probationer. And this absurd result belies any legislative intent to mandate a complete revocation within the ninety-day period. See Hall v. Hospitality Resources, Inc., 276 S.W.3d 775, 785 (Ky. 2008) (stating that “[w]e have often said that statutes will not be given [such a] reading where to do so would lead to an absurd or unreasonable conclusion.”) (internal citations omitted).

The majority implicitly concedes this point, acknowledging that common sense guides them to accept the premise that it is now “exceedingly difficult to revoke the Kentucky-state-court-imposed probation of someone in custody of the federal correctional authorities within the narrow ninety-day window contained in KRS 533.040(3).” Slip op. at 10. Consequently, probationers who have the serendipitous fortune of feloniously violating federal law will rarely serve their state-court sentence consecutively.

When undertaking statutory interpretation, we must “refrain from interpreting a statute so as to produce an absurd or unreasonable result.” Wilburn v. Commonwealth, 312 S.W.3d 321, 328 (Ky. 2010). However, the majority’s statutory interpretation admittedly implements a framework so restrictive it has no practical application, i.e., an “absurd or unreasonable result.” Id.

Under such interpretation, if the Commonwealth seeks to revoke state-court-ordered probation and reinstate the state sentence to run consecutively to the federal sentence, it must complete a myriad of proceedings within the “narrow ninety-day window.” Slip op. at 10. The Commonwealth must notify the probationer, secure permission from the United States Department of Justice (DOJ), arrange transportation to and from the revocation hearing, participate in a statutorily-mandated hearing, and await a decision. Not only is this temporally impracticable, but it also presumes cooperation from the DO J. Despite the Commonwealth’s best compliance efforts, the DOJ possesses absolute authority to deny the temporary release of its prisoner for revocation proceedings, thereby eliminating the Commonwealth’s ability to revoke probation. This is surely not what the Legislature intended when it penned KRS 533.040(3).

Careful examination of KRS 533.040′s Official Commentary belies the restrictive framework consequent from the majority’s statutory interpretation. The Official Commentary states that subsection three is a notice provision, designed to prevent unfair surprises, which impede the rehabilitative function of incarceration. This subsection was designed to prevent the authorities from “wait[ing] until the defendant has served his prison sentence for the subsequent offense and then seek revocation of his prior sentence of probation or conditional discharge and reinstate his prior sentence of imprisonment.”

The Official Commentary continues, stating that the purpose KRS 533.040(3) is to “prohibit such a practice unless the authorities act to revoke the prior sentence of probation or conditional discharge before the defendant has completed his imprisonment under the subsequent sentence.” (emphasis added).

As evinced by the Official Commentary, the legislative intent was to require notice of probation revocation prior to the prisoner completing the unrelated federal sentence. In this case, the probationer, Raycine Love, was served with a detainer action letter for his “probation violation,” notifying him that the Commonwealth was attempting to revoke his probation. Thus, here “the authorities act[ed] to revoke . . . before the defendant completed his imprisonment under the subsequent sentence.” Commentary to KRS 533.040 (emphasis added). As a result, Love could not reasonably expect his unrestricted freedom upon completion of his federal sentence.

With the current state of our prison system and the widespread effort to reduce that population by increasingly utilizing probation, it is integral that our prosecutors retain revocation ability when probationers subsequently violate federal law. Despite this, the majority now imposes a framework so procedurally restrictive that revocation, in this context, is now “exceedingly difficult.” Slip op. at 10. As we have keenly stated in the past, “[w]hen all else is said and done, common sense must not be a stranger in the house of the law.” Cantrell v. Kentucky Unemployment Ins. Commission, 450 S.W.2d 235,

237 (Ky. 1970). The majority’s opinion ignores this conventional wisdom; thus, I respectfully dissent.

Cunningham, J., joins.

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