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RENDERED: APRIL 24, 2009; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals
NO. 2007-CA-002259-MR CAMERON HUNT APPELLANT

v.

APPEAL FROM HICKMAN CIRCUIT COURT HONORABLE TIMOTHY A. LANGFORD, JUDGE ACTION NO. 06-CR-00031

COMMONWEALTH OF KENTUCKY

APPELLEE

OPINION AFFIRMING ** ** ** ** ** BEFORE: ACREE AND NICKELL, JUDGES; LAMBERT,1 SENIOR JUDGE. NICKELL, JUDGE: Cameron Hunt has appealed from the Hickman Circuit Court's September 21, 2007, order revoking his probation and sentencing him to serve ten years' imprisonment. We now affirm.

1

Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.

On March 1, 2007, Hunt entered a guilty plea to two felony charges and various misdemeanors in exchange for a recommendation from the Commonwealth of a sentence of three years' imprisonment. The trial court informed Hunt at sentencing that if he wished to agree to a longer term of ten years' imprisonment, the court would immediately release him on probation. The trial court further informed Hunt that if he agreed to the lengthened term, it would also impose several additional requirements on Hunt's probation including paying child support, working on his GED, paying court costs, paying for electronic monitoring, refraining from drugs and alcohol, submitting to random drug screens, completing the "scared straight" program, and completing two hundred hours of community service. The trial court carefully questioned Hunt to ensure he understood the risks associated with accepting the trial court's sentence. Hunt agreed to the sentencing and the trial court entered an order accordingly. On March 20, 2007, Hunt's probation officer completed a report detailing Hunt's failure to abide by the terms of his probation. According to the report, Hunt had failed to (1) pay his supervision fees, (2) enter drug treatment, (3) begin work on his GED, (4) obtain electronic monitoring, (5) attend or enroll in the "scared straight" program, (6) complete any community service, and (7) pay his outstanding fines with the court. On April 12, 2007, a warrant was issued for

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Hunt's arrest. Hunt was apprehended on September 10, 2007, and the trial court subsequently scheduled a probation revocation hearing for September 20, 2007. Counsel was appointed to represent Hunt on the morning of the revocation hearing. The Commonwealth stated Hunt had "been on the run" since March and had done nothing he was required to do under the probation order. The trial court asked the probation officer to outline the allegations contained in the revocation request, then inquired whether Hunt had any explanation or defense to the allegations. Hunt explained he had gone to drug court one time but did not explain his failure to attend further sessions. He also stated he had attended his first meeting with the probation officer. However, when he arrived for his second meeting, Hunt stated he was informed to return the following day. When he returned, he was informed there was a warrant for his arrest, and it was then that he absconded. Hunt asked the trial court for a second chance as his first drug screen at the jail was clean, and he had an opportunity for employment if released. The trial court found Hunt had violated the terms of his probation, revoked that probation and sentenced Hunt to ten years imprisonment. This appeal followed. On appeal, Hunt contends he is entitled to a new probation revocation hearing as the trial court erred in the untimely appointment of counsel by improperly shifting the burden of proof to him, and in forcing him to speak at the hearing. Hunt admits none of these allegations are preserved for appellate review, but has requested review under the palpable error standard pursuant to RCr2 10.26.
2

Kentucky Rules of Criminal Procedure.

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Under RCr 10.26, this court will review unpreserved errors only if the alleged error prejudices the defendant's substantial rights. Relief may be granted only if we determine the error resulted in manifest injustice. Id. See also Brock v. Commonwealth, 947 S.W.2d 24, 28 (Ky. 1997). Further, there must be present a "substantial possibility that the result would have been different but for the alleged error." Ramsey v. Commonwealth, 157 S.W.3d 194, 199 (Ky. 2005) (citing Partin v. Commonwealth, 918 S.W.2d 219 (Ky. 1996)). The Supreme Court of Kentucky recently clarified the concept of "manifest injustice" by "explain[ing] that the required showing is probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law." Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). "When an appellate court engages in a palpable error review, its focus is on what happened and whether the defect is so manifest, fundamental and unambiguous that it threatens the integrity of the judicial process." Id. After a careful consideration of the entire record before us we find the complained of errors do not rise to the level of palpable error as required for reversal. Hunt complains the trial court's appointment of counsel shortly before the revocation hearing was scheduled to begin was prejudicial in that he had no time to prepare a defense. However, Hunt then goes on to insinuate that he should not be required to speak or otherwise defend the charges against him. These two contrary positions are untenable. The trial court appointed counsel prior to the hearing. Counsel had the opportunity to request a continuance in order to converse -4-

with Hunt and attempt to prepare a defense. Counsel did not so move the trial court. "The fact that counsel was appointed only a short time before the trial is not grounds for reversal in the absence of a motion for continuance." Harrison v. Commonwealth, 436 S.W.2d 259 (Ky. 1969) (citations omitted). Nevertheless, we are unable to glean from the record any viable defense Hunt may have raised which could have substantially affected the outcome of the hearing. We thus find no palpable error in the trial court's appointment of counsel. It is undisputed that Hunt absconded within a few days of being placed on probation. The probation officer set forth the allegations of Hunt's violations and the reasons therefore in a manner sufficient to carry the Commonwealth's burden of proof. Hunt conceded many of the alleged violations and stated he had absconded after learning of the warrant for his arrest. These admissions alone were sufficient to support the trial court's decision. Contrary to Hunt's allegation, the trial court did not shift the burden to him. Although the trial court stated Hunt needed to "show cause" why his probation should not be revoked, a careful review of the hearing reveals the trial court was, in fact, merely giving Hunt the opportunity to rebut the Commonwealth's allegations and did not shift the burden of proof to Hunt as he now suggests. The hearing was conducted in an informal manner, but the trial court ensured Hunt's rights were protected. Hunt's argument here is based wholly on semantics and does not rise to the level of palpable error.

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Finally, we find no merit in Hunt's contention that the trial court and his counsel forced him to speak at the hearing. Hunt was given the opportunity to defend himself and explain his actions after being placed on probation which ultimately culminated in the filing of the revocation motion. The trial court posed the question to Hunt as to why he had absconded rather than trying to remedy the situation. This question is not of such an incriminating character that without the answer thereto Hunt's probation would not have been revoked. We cannot say the outcome would have been any different had the trial court not made this inquiry. Thus, there was no palpable error. Id. Therefore, for the foregoing reasons, the judgment of the Hickman Circuit Court is affirmed. ALL CONCUR.

BRIEFS FOR APPELLANT: Samuel N. Potter Assistant Public Advocate Frankfort, Kentucky

BRIEF FOR APPELLEE: Jack Conway Attorney General Wm. Robert Long, Jr. Assistant Attorney General Frankfort, Kentucky

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