Marshall v. Com, Ky COA, Flagrant Non-Support, Due Process

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MARSHALL V. COM.
2007-CA-001320
PUBLISHED: VACATING AND REMANDING
PANEL: TAYLOR PRESIDING; CLAYTON, MOORE CONCUR
COUNTY: GRAVES
DATE RENDERED: 8/28/2008

Father appealed TC’s order revoking his conditional discharge upon offense of flagrant nonsupport.

FACTS:
After Father had failed to honor terms of conditional discharge, TC held hearing on Commonwealth’s motion to revoke the discharge. Father argued and testified that he lacked ability to pay the ordered child support. TC revoked his conditional discharge and ordered that he be imprisoned for the remainder of his sentence.

ANALYSIS:
On appeal, Dad first argued that TC violated his constitutional rights under the due process clause of the Fourteenth Amendment of the United States Constitution, and under Sections One, Two and Eleven of the Kentucky Constitution when it refused to examine possible alternative punishments to imprisonment and denied him his freedom even though he did not willfully refuse to pay his child support, as he was “too poor to pay his support obligation” and that TC was required to inquire as to why he was unable to pay before revoking probation or conditional discharge. CA held that no legal authority exists requiring TC to consider alternative forms of punishment when revoking probation or conditional discharge for failure to pay child support.
Father next argued that TC’s order revoking conditional discharge did not contain findings of fact and, thus, violated his constitutional due process rights. CA held that a probation revocation proceeding must conform to the minimum requirements of due process of law, including a written statement by the factfinder as to the evidence relied on and reasons for revoking parole. The order revoking Father’s parole did not include such findings of fact. CA thus remanded to TC to make factual findings. Vacated and remanded.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.

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