author: ROBERT L. BROWN, Justice.

text:
    2009 Ark. 374
    Ricky Earl WHITE, Appellant, v. STATE of Arkansas, Appellee.
    No. CR 08-1402.
    Supreme Court of Arkansas.
    June 25, 2009.

      William R. Simpson, Jr., Public Defender, Sharon Kiel, Deputy Public Defender, by Clint Miller, Little Rock, for appellant.
    Dustin McDaniel, Att’y Gen., by Christian Harris, Ass’t Att’y Gen., for appellee.
   ROBERT L. BROWN, Justice.

| Appellant Ricky Earl White was convicted of first-degree murder. Because of previous felony convictions, he was sentenced as a habitual offender to life imprisonment for the murder charge, and his sentence was enhanced by fifteen years for using a firearm to commit the murder, pursuant to Ark.Code Ann. § 16-90-120(a) (Supp.2007). The circuit judge ordered the sentences to run concurrently. White raises one issue on appeal: that the circuit judge abused his discretion in admitting testimony of his possession of a .380 caliber handgun. We affirm.

In the early morning hours of February 2, 2008, Penze Wine was shot and killed in the parking lot of a recording studio in Southwest Little Rock. According to the State’s theory of the case, Wine and Carlos Pace had spent time in the recording studio during the evening of February 1, 2008 and the early morning of February 2, 2008. They were drinking beer, |2and when they had consumed it all, they decided to drive down the street to a gas station to purchase more beer. After doing so, Wine and Pace returned to the studio, where some of the other people present said they wanted more beer as well. After that request, Pace testified that Wine and he again left the studio and got into Wine’s car. Apparently, as Wine began to back up, he bumped into White’s car.

It was Pace’s testimony that he knew White and recognized him when Wine and he got out of the car. Pace told the jury that he did not see any damage to White’s car and that Wine said, “I’ll pay for any damage or whatever.” Pace’s testimony was that there “wasn’t an argument” between Wine and White, but that White “was just like, ‘you ran into my car, you hit my car.’ ” Pace then told the jury, “Penze [Wine] kept saying, you know, repeatedly that, ‘I’ll pay for any damages.’ Next thing I know I heard a shot and saw Mr. Wine on the ground.” He then identified White as the person who shot Wine.

Gary Wilkins, a friend of Wine’s and Pace’s brother, was also at the recording studio on the night in question. He testified that after Pace and Wine left the studio for the second time, right before the shooting occurred, he went to the front door of the building and saw Wine’s “car sitting there and that white Cadillac behind it and [he] told them you — all need to come in and get off that parking lot because it’s too late out there.” Wilkins said that he did not see a gun, but he saw Wine, Pace, and another person standing by the cars and that 1 Sas he “started shutting the door then [he] just heard a bam.” According to Wilkins, he looked outside again, and Wine “was on the ground.” He testified that he “heard a shot” and identified White as the person who had been in the white Cadillac that night. He said that he was “a hundred percent” certain that he recognized White as the person who was in the white Cadillac.

The State introduced the testimony of another witness to the shooting, Latonya Miller. Miller told the jury that she was home on the night in question, across the street from the recording studio. She testified that she had a direct view from her front window to the parking lot. She said that she heard “loud conversation” outside of her house and “went to go look out the window.” She testified that she saw “a white Cadillac and ... a white car pulled up in front of the — parked in front of the studio.” Next, Miller said:

As I’m standing there just looking seeing what they was doing, I see one guy with his hands up, well, and one guy with his back towards me. It was a bigger guy with his back towards me. And as I’m looking, I see fire. I seen the guy fall and hit the ground. As I see that, I’m stuttering and I’m like, oh. Got nervous, got scared because I’m like, okay, something happened across the street. I called 911.

Miller then testified that she told the emergency operator that someone had been shot across the street from her house and that “a black guy got into a white Cadillac and he’s driving away.” The prosecutor later asked Miller if she had ever seen the white Cadillac before, and Miller responded in the affirmative and said she knew the Cadillac because the man that drove it lived “five houses right up the street from me” and “the reason why I knew the Cadillac is because my nephew used to play with his kids up the street.” Miller then ^identified White as the man who owned the white Cadillac and testified that she saw him in the parking lot on the night in question.

Dr. Stephen A. Erickson, the deputy chief medical examiner at the Arkansas State Crime Lab, testified that he performed an autopsy on Wine. It was Dr. Erickson’s testimony that the manner of death was homicide. According to Dr. Erickson, Wine died of a gunshot wound to the chest, and the bullet was a “thirty-eight caliber class range.” Stan Wilhite testified that he worked for the Little Rock Police Department, Crime Scene Investigation and that he recovered a .380 caliber spent hull from the scene of the crime. While the gun used to kill Wine was not recovered, the State introduced the testimony of Anita Ray, over White’s objection, to the effect that she had seen White with a .380 caliber handgun and knew him to drive a white Cadillac.

White specifically maintains in his sole point on appeal that Anita Ray’s testimony was inadmissible under Arkansas Rule of Evidence 404(b) because:

Ms. Ray’s statement that she had seen Appellant White with a .380 caliber handgun would assist the jury in finding Appellant White guilty of the murder of Penze Wine only if the jury was willing to conclude that Appellant White was a bad man who had a propensity to habitually carry a .380 caliber handgun and that is why he had one with him when he confronted Mr. Wine at the crime scene.

Rule 404(b) provides that “evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, | ¡^preparation, plan, knowledge, identity, or absence of mistake or accident.” Ark. R. Evid. 404(b) (2009).

It is well settled by this court that testimony of other criminal activity is admissible “if it is independently relevant to the main issue, that is, relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal.” See Green v. State, 365 Ark. 478, 494, 231 S.W.3d 638, 651 (2006). In other words, the evidence offered under Rule 404(b) must make the existence of any fact of consequence more or less probable than it would be without the evidence. See Lamb v. State, 372 Ark. 277, 275 S.W.3d 144 (2008). The admission or rejection of evidence under Rule 404(b) is committed to the sound discretion of the circuit court, and this court will not reverse absent a showing of manifest abuse of discretion. See id.

As a threshold matter, this court must determine whether Rule 404(b) even applies in the context of Wfiiite’s case. Stated differently, did the State, in fact, introduce evidence of White’s “other crimes, wrongs, or acts” through Ray’s testimony? Ray’s testimony, in its entirety, was

ProseCuting AttoRney: Ma’am, would you introduce yourself to the ladies and gentlemen of the jury?
Ray: Anita Ray.
PROSECUTING ATTORNEY: And do yOU know Ricky Smith — Ricky White? Excuse me.
Ray: Yes, sir.
| (;ProseCuting Attorney: Ricky Earl White. Do you see him in the courtroom here today?
Ray: Yes, sir.
ProseCuting Attorney: Where is he?
Ray: Right there (witness indicating).
ProseCuting Attorney: May the record reflect identification.
Ray: Right there in the gray suit.
PROSECUTING ATTORNEY: And h0W long have you known him and how do you know him?
Ray: I have three boys by his brother and I’ve been knowing him for a minute.
Prosecuting Attorney: You’ve been knowing the family?
Ray: Ricky, uh-huh.
Prosecuting Attorney: So you’ve known him for quite some time?
Ray: Yes, sir.
Prosecuting Attorney: And do you— does he live near you?
Ray: Yes, sir.
Prosecuting Attorney: And what kind of car have you seen him driving around February of 2008?
Ray: A four-door white Cadillac.
Proseouting Attorney: And does he have any nicknames you’re aware of?
Ray: Big Baby.
17PR0SECUTING Attorney: Big Baby?
Ray: Yes, sir.
Proseouting Attorney: And have you known him — have you ever seen him with a .380 caliber handgun?
Ray: Yes, sir.
Prosecuting Attorney: Pass the witness. Oh, before I ask that.
Prosecuting Attorney: Do you know, were you anywhere around the area when this shooting took place? Are you aware that there was a shooting?
Ray: I am aware of it. My boys, they knew about it; I wasn’t there.
Prosecuting Attorney: But none of you — all knew anything about it firsthand at all?
Ray: I was not there, no, sir.
Prosecuting Attorney: Thank you.

The defense attorney did not ask Ray any questions.

Before Ray testified to the jury, the circuit judge held a hearing to determine whether her testimony was admissible under Rule 404(b), as White had asserted it was not. At that hearing, Ray told the judge that she knew White carried the gun because of an “incident” when he had pulled it on her and her fiancé. In that hearing, the prosecutor told Ray on more than one occasion that “you understand that if you’re allowed to testify, you’re not to mention | ^anything about the incident [with her and her fiancé], other than you know that he has a .380 and you knew he had it around the time of February 2nd.”

At the conclusion of the hearing, the circuit judge ruled: “Okay, I’m going to allow it.” Because he did not explain his decision, it is unclear whether he permitted the testimony because he found Rule 404(b) did not apply or because the testimony was independently relevant to the instant case. Regardless, it is evident to this court that Rule 404(b) was not applicable to Ray’s testimony. The record reflects that Ray followed the prosecuting attorney’s instruction and did not mention the incident in which White allegedly pulled a .380 caliber handgun on her fiancé and her. The only testimony related to the gun was that Ray had seen White with a .380 caliber handgun. As the State correctly points out in its brief before this court, it is not a crime to possess a handgun. Hence, the jury was not informed of any prior criminal or other bad act on the part of White.

In a similar case, this court held that the circuit court did not abuse its discretion by permitting the jury to read a transcript of a telephone call the appellant made from the jail to his mother. See White v. State, 370 Ark. 284, 292-93, 259 S.W.3d 410, 416 (2007). The appellant in White had been previously charged with the rape of a minor, and the case ended in a mistrial. During the second trial, the State introduced the following statement he made to his mother: “Well, that’s what I’m trying to do, and if you work with me, you’ll see what I’m saying. There’s nothing going to happen. When I told you that last time and I came back home, didn’t I?” Id. at 293, 259 S.W.3d at 416. In that case, the appellant urged that the 19statement should have been redacted because portions were inadmissible under Rule 404(b) since they referred to the prior rape trial. Id. This court affirmed the circuit court’s rejection of that argument and held that “there was no Rule 4.01(b) issue because the statement to be redacted would not cause the jury to be aware that there was an alleged prior similar crime.” Id.

As in White, in the instant case, the jury was not made aware of any prior crime or other bad act by White but was simply told that Ray had seen him with a .380 caliber handgun. Because no evidence of prior crimes, wrongs, or bad acts was presented to the jury through Ray’s testimony, Rule 404(b) did not apply. Even if Rule 404(b) did apply, evidence that Ray possessed a .380 caliber handgun was certainly relevant in light of the fact that a .380 caliber shell hull was recovered at the scene of the crime. See Gilcrease v. State, 2009 Ark. 298, 15-16, 318 S.W.3d 70, 81 (evidence that appellant possessed a gun similar to that used in the commission of the crime held to be independently relevant proof of the appellant’s identity). For these reasons, the circuit judge did not abuse his discretion in admitting Ray’s testimony.

While the court does not believe it to be reversible, one ruling adverse to White bears mentioning as a result of our Rule 4 — 3(i) review. During the prosecutor’s closing argument, the following colloquy took place:

Prosecuting Attorney: He [White] was identified positively by Gary, by Carlos, and by Latonya, who was across the street. And there was a consisr tent identification by Eugene Harris. I want |into talk a little bit more. Like I said, I hope to God it wasn’t just for backing into his car because that’s—
Defense Counsel: Objection, may we approach?
The Court: No. No.
PROSECUTING ATTORNEY: I’ll move On.
Defense Counsel: I’d like to make a record for this.
The Court: He said he would move on.
Prosecuting Attorney: I’ll move on.
Defense Counsel: I would still like to make an objection.
The Court: No.

It is unclear from the record exactly what defense counsel wanted to do. Did she wish to approach the bench and make a record in a sidebar conference? Did she want to make a more specific objection in open court before the jury? And, if so, what was her objection? The record leaves us largely in the dark about this scenario. Because it is incumbent on counsel to make a specific objection for our review on appeal, even in the face of the circuit judge’s negative response, no reversible error has been shown. See Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000).

The record has been reviewed in accordance with Supreme Court Rule 4-3(i), and no reversible error has been found.

Affirmed.

      . White was also known as “Big Baby.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2009 Ark. 381
    FIREMAN’S FUND INSURANCE COMPANY and Medical Liability Mutual Insurance Company f/k/a/ Healthcare Underwriters’ Mutual Insurance Company, Petitioners, v. CARE MANAGEMENT, INC. d/b/a Southwest Nursing Homes, Southwest Nursing Homes, Inc., and Health Care Organizations, Inc., Respondents.
    No. 09-662.
    Supreme Court of Arkansas.
    June 25, 2009.
   PER CURIAM.

Iiln accordance with section 2(D)(3) of Amendment 80 to the Arkansas Constitution and Rule of the Rules of the Supreme Court and Court of Appeals of the State of Arkansas, Judge J. Leon Holmes, of the United States District Court for the Eastern District of Arkansas, filed a motion and certifying order with our clerk on. The certifying court requests that we answer one question of Arkansas law that may be determinative of a cause now pending in the certifying court, and it appears to the certifying court that there is no controlling precedent in the decisions of the Arkansas Supreme Court. The law in question involves whether an insurer must prove prejudice in order to avoid coverage where the insured failed to give notice in accordance with the terms of the insurance policy.

12After a review of the certifying court’s analysis and explanation of the need for this court to answer the question of law presently pending in that court, we accept certification of the following question:

When an insurance policy requires the insured to give notice of a claim as soon as practicable and the insured fails to give the insurer notice of the claim as soon as practicable, must the insurer prove that it was prejudiced by the failure to give timely notice in order to avoid coverage?

This per curiam order constitutes notice of our acceptance of the certification of question of law. For purposes of the pending proceeding in this court, the following requirements are imposed:

A. Time limits under Ark. Sup.Ct. R. 4-4 will be calculated from the date of this per curiam order accepting certification. The plaintiffs in the underlying action, Fireman’s Fund Insurance Company and Medical Liability Mutual Insurance Company, f/k/a Healthcare Underwriters’ Mutual Insurance Company, are designated the moving parties and will be denoted as the “Petitioners,” and their brief is due thirty days from the date of this per curiam; the defendants, Care Management, Inc. d/b/a Southwest Nursing Homes, Southwest Nursing Homes, Inc., and Health Care Organizations, Inc., shall be denoted as the “Respondents,” and their brief shall be due thirty days after the filing of Petitioners’ brief. Petitioners may file a reply brief within fifteen days after Respondents’ brief is filed.
B. The briefs shall comply with this court’s rules as in other cases except for the briefs’ content. Only the following items required in Ark. Sup.Ct. R. 4-2(a) shall be included:
(3) Point on appeal which shall correspond to the certified question of law to be answered in the federal district court’s certification order.
(4) Table of authorities.'
13(6) Statement of the case which shall correspond to the facts relevant to the certified question of law as stated in the federal district court’s certification order.
(7) Argument.
(8) Addendum, if necessary and appropriate.
(9) Cover for briefs.
C. Oral argument will only be permitted if this court concludes that it will be helpful for presentation of the issue.
D. Ark. Sup.Ct. R. 4-6 with respect to amicus curiae briefs will' apply.
E. This matter will be processed as any case on appeal.
F. Rule XIV of the Rules Governing Admission to the Bar shall apply to the attorneys for the Petitioners and Respondents.

Certified Question Accepted.


text:
    Gregory BROWN, Appellant, v. STATE of Arkansas, Appellee.
    No. CR 09-591.
    Supreme Court of Arkansas.
    June 25, 2009.
    Clint Miller, for appellant.
    No response.
   MOTION FOR RULE ON CLERK

PER CURIAM.

| Appellant Gregory Brown, by and through his attorney, Clint Miller, has filed a motion for rule on clerk. On January 28, 2009, the circuit court entered a judgment and commitment order finding Brown guilty of possession of cocaine with intent to deliver, a Class Y felony, and sentencing him to five years’ imprisonment. Brown timely filed his notice of appeal on February 26, 2009. However, the record was not tendered to our clerk until May 29, 2009.

The time limit set in Arkansas Rule of Appellate Procedure — Criminal 4(b) (2009) requires that the record be tendered to this court within ninety days of the date of the notice of appeal, unless the circuit court granted an extension of time. Here, the record was not tendered until two days after it was due. An extension of time was not granted.

|2This court clarified its treatment of motions for rule on clerk and motions for belated appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we said:

Where an appeal is not timely perfected, either the party or attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney filing the appeal is therefore faced with two options. First, where the party or attorney filing the appeal is at fault, fault should be admitted by affidavit filed with the motion or in the motion itself. There is no advantage in declining to admit fault where fault exists. Second, where the party or attorney believes that there is good reason the appeal was not perfected, the case for good reason can be made in the motion, and this court will decide whether good reason is present.

356 Ark. at 116, 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit admitting fault before we will consider the motion, an attorney should candidly admit fault where he or she has erred and is responsible for the failure to perfect the appeal. See id. When it is plain from the motion, affidavits, and record that relief is proper under either rule based on error or good reason, the relief will be granted. See id. If there is attorney error, a copy of the opinion will be forwarded to the Committee on Professional Conduct. See id.

Brown’s counsel admits fault within the motion. Pursuant to McDonald v. State, supra, we grant the motion for rule on clerk and forward a copy of this opinion to the Committee on Professional Conduct.

Motion granted.

      . Previously, we applied Arkansas Rule of Appellate Procedure — Civil 5(a) (2008) pursuant tó Arkansas Rule of Appellate Procedure-Criminal 4(a) (2008); however, Ark. R.App. P. — Crim. 4 has since been amended to in-elude the time for filing the record.


author: DONALD L. CORBIN, Justice. JIM GUNTER, Justice,

text:
    2009 Ark. 388
    Glen Homer SHELTON, Jr., Appellant, v. STATE of Arkansas, Appellee.
    No. CR 08-1035.
    Supreme Court of Arkansas.
    June 25, 2009.

      J. Thomas Sullivan, Little Rock, for appellant.
    Dustin McDaniel, Att’y Gen., by: Deborah Nolan Gore, Ass’t Att’y Gen., for ap-pellee.
   DONALD L. CORBIN, Justice.

| iAppellant, Glen Homer Shelton, Jr., filed this interlocutory appeal from the order of the Jefferson County Circuit Court denying his plea of prior jeopardy, in which he had moved for dismissal of the capital-murder charge pending against him. This interlocutory appeal requires our interpretation of the Arkansas Constitution, therefore, jurisdiction is properly in this court pursuant to Ark. Sup.Ct. R. 1-2(a)(1). We find merit to Appellant’s argument that there was no overruling necessity to support the trial court’s granting of a mistrial, and therefore conclude the trial court erred in denying Appellant’s plea of prior jeopardy. Accordingly, we reverse and dismiss.

Appellant was charged by felony information with the May 5, 2007 murder of Melanie Hughes, after Hughes was run over by a tractor driven by Appellant. Trial by jury began on February 19, 2008. After a jury was selected and sworn, both sides presented opening statements. At the conclusion of Appellant’s opening statement, the State moved for a |amistrial based on comments made by defense counsel during opening statement that the State alleged amounted to a change in defense theories. The trial court granted the State’s motion for mistrial over Appellant’s objection and discharged the jury. The trial court then reset the case for jury trial and denied Appellant’s motion to set bond.

Appellant filed a plea of prior jeopardy and moved to dismiss the charges pending against him. After a hearing on May 8, 2008, the trial court took the matter under advisement and ultimately issued a written order denying without explanation Appellant’s plea of prior jeopardy. This interlocutory appeal followed. An order denying a motion to dismiss charges because of double jeopardy is an appealable decision. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); Smith v. State, 307 Ark. 542, 821 S.W.2d 774 (1992); Jones v. State, 230 Ark. 18, 320 S.W.2d 645 (1959).

This court reviews de novo a circuit court’s denial of a motion to dismiss on double-jeopardy grounds. Koster v. State, 374 Ark. 74, 286 S.W.3d 152 (2008). When the analysis presents itself as a mixed question of law and fact, the factual determinations made by the circuit court are given due deference and are not reversed unless clearly erroneous. Id. However, the ultimate decision by the circuit court that the defendant’s protection against | adouble jeopardy was not violated is reviewed de novo, with no deference given to the circuit court’s determination. Id.

Although raised as his second assignment of error, we first address Appellant’s argument that the circuit court erred under Arkansas law in ordering a mistrial because of comments made by defense counsel during opening statement. At the outset we note that article 2, section 8, of the Arkansas Constitution provides that

no person be twice put in jeopardy of life or liberty for the same offense. See Williams [v. State, 371 Ark. 550, 268 S.W.3d 868 (2007) ]. The Double Jeopardy Clause protects criminal defendants from: “(1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.” Hughes v. State, 347 Ark. 696, 702, 66 S.W.3d 645, 648 (2002).
“A former prosecution is an affirmative defense to a subsequent prosecution for the same offense ... [if] [t]he former prosecution was terminated without the express or implied consent of the defendant after the jury was sworn ... unless the termination was justified by overruling necessity.” Ark.Code Ann. § 5-1-112(3) (Repl.2006) (emphasis added).

Koster, 374 Ark. at 81-82, 286 S.W.3d at 159-60.

In the instant case, Appellant specifically contends that there was no overruling necessity to grant the mistrial as required by section 5-1-112(3). It is undisputed that the State bears the heavy burden of proving an overruling necessity, which is a circumstance that is forceful and compelling and is in the nature of a cause or emergency over which neither court nor attorney has control, or which could not have been averted by diligence and care. Koster, 374 Ark. 74, 286 S.W.3d 152. Determining whether there is an overruling necessity |4that requires the grant of a mistrial is a matter within the trial court’s discretion, and we will not disturb that ruling absent an abuse of discretion. Id.

In Koster, this court affirmed a finding of overruling necessity when the jury was exposed to matters outside the courtroom that could affect its judgment in the case. Other examples of overruling necessity found by this court are illness of a juror, Shaw v. State, 304 Ark. 381, 802 S.W.2d 468 (1991); illness of a material witness for the State, Jones v. State, 288 Ark. 162, 702 S.W.2d 799 (1986); and intoxication of defense counsel, Franklin v. State, 251 Ark. 223, 471 S.W.2d 760 (1971). These are all examples of emergencies that are outside the control of the court and counsel, that could not have been averted with diligence or care, and that prevented the trial from proceeding.

The situation presented in the present case, however, is entirely distinct from those cases, as a review of the record below clearly demonstrates. At the core of this case are remarks of defense counsel made during opening statement regarding evidence that the prosecuting attorney had already explained to the jury would be admitted at trial. Indeed, the first reference to the challenged subject matter of the victim’s death being accidental was, in fact, made by the prosecution in its opening statement:

You’ll also hear that once the defendant to the — to the sheriffs office that he was advised of his rights and that he gave a statement. And I anticipate that you’re going to see that statement. It was a video statement where he gives explanation as to what was involved and why — what happened happened. And in that statement, I anticipate you’re going to hear several different explanations that range from being mad to range from she had my | scell phone to range that it was an accident to, “I just meant to bump her, but I didn’t mean to kill her.” Several different explanations.

(Emphasis added.) Defense counsel then proceeded with his opening statement, describing the events leading up to the death of Hughes:

Ms. Hughes, Glen will tell you, was between the car and the tractor when she fired the first three shots. He couldn’t go toward the car. He couldn’t go toward the school bus that he lived in because that would have been running in the direction of the woman who was firing the gun at him. He runs to the tractor and gets in the tractor. And as he’s in the tractor, she fires at least one more shot, according to Glen.
The testimony will show he did not have a gun, he did not have a knife, he didn’t have anything else he could use as a weapon to defend himself He drove the tractor.
Ms. Hughes starts to run up toward the highway as he’s following behind her. Periodically Glen will tell you that she turned around. He kept going. She kept running. As he chases her finally off the property where he fives, his tractor hits part of the ditch, I’ll call it, and Glen is going to tell you that there was a momentary loss of control. And before he could bring that tractor back under control, he had run over Melanie Hughes.

(Emphasis added.) Defense counsel went on to assert that the evidence would show that Appellant acted in self-defense:

If you look at the evidence, beginning in 2004 when Glen has it in his mind that she will assault him and she will hurt him and combine that with the evidence in 2007 when this time she has a gun and she fires it, we think you’ll be satisfied that he was acting in self-defense when he got in that tractor. Thank you.

(Emphasis added.)

In At the conclusion of Appellant’s opening statement, the State moved for a mistrial, arguing that defense counsel’s remarks about momentary loss of control amounted to a change in defense theories from one of self-defense to one of accident, and that prejudice resulted therefrom because the jury had now heard comments about the victim’s use of drugs and her previous attack on Appellant’s neck and face with a knife. The State conceded the admissibility of this evidence prior to trial and asserts that if it had known that Appellant was proceeding under a theory of accident, it would not have done so, and that the jury was therefore prejudiced by hearing in opening statement that such evidence would be forthcoming at trial. Appellant’s counsel responded to the State’s motion by telling the trial court that

[t]he defense is self-defense. And [the prosecuting attorney], I believe, said that [Appellant] offered several examples of reasons for why his conduct occurred and that it was an accident at some point when he ran over her.... [A]nd that’s all I did was repeat them, that it was an accident at that point. But we’re still arguing self-defense .... Now, it may be ultimately determined by the jury that it’s an imperfect self-defense claim in which reckless conduct or negligent conduct is determined by the jury. But in no way has our defense changed to accident. Our defense is clearly self-defense.

(Emphasis added.)

The State continued to argue to the trial court that mistrial was the only appropriate remedy here. When questioned further by the court, Appellant’s counsel responded that

[i]t could be imperfect self-defense if they think he was acting with a reckless mental state at that point.
|7I mean, I’ll be glad to go back and clarify to the jury ... that this is not an accident, accidental killing; and the defense is relying on self-defense. It doesn’t matter to me how it’s done. I’ll be glad to do it.

(Emphasis added.) Defense counsel, all the while asserting that he was proceeding under a theory of self-defense, again offered to clarify for the jury that Appellant was relying on a defense of self-defense. Defense counsel further averred that the court could clarify the situation to the jury or instruct the jury that comments made by counsel in opening statements are not to be considered as evidence.

After considering the law on imperfect self-defense cited by Appellant, Harshaw v. State, 344 Ark. 129, 39 S.W.3d 753 (2001), the trial court granted the State’s motion for mistrial on the grounds that Harshaw and the concept of imperfect self-defense were not applicable to the facts presented and that defense counsel’s remarks were not curable via an admonition or jury instruction. While the trial court acted with deliberation and consideration, it nevertheless made a manifestly incorrect decision that is reversible as an abuse of discretion in that regard.

|sThe State has not met its heavy burden of demonstrating that the mistrial was warranted by circumstances justifying overruling necessity, because if any error or prejudice occurred in this case it could have been corrected with curative relief such as an admonition or instruction to the jury. A mistrial is an extreme remedy that should only be granted when the error is beyond repair and cannot be corrected by any curative relief. Weaver v. State, 324 Ark. 290, 920 S.W.2d 491 (1996). There was no forceful or compelling emergency such as illness or incapacitation of a juror, counsel, judge, or witness that would make it impossible to proceed with the trial. There was no exposure to the jury of matters outside the courtroom. Therefore, there was no overruling necessity warranting a mistrial.

Because the trial court granted a mistrial over Appellant’s objection and without his express or implied consent, and because there was no manifest or overruling necessity that justified the mistrial, the double jeopardy provision of the Arkansas Constitution precludes any subsequent attempt at prosecuting Appellant. Accordingly, we reverse and dismiss the order denying the plea of prior jeopardy, and we need not consider Appellant’s remaining arguments for reversal.

Reversed and dismissed.

GUNTER, J., dissents.

JIM GUNTER, Justice,

dissenting.

|nThe majority has concluded that there was no overruling necessity for a mistrial; thus the trial court erred in granting the mistrial, and any subsequent prosecution is barred. The majority bases this conclusion on the finding that, if any error or prejudice resulted from defense counsel’s remarks during opening statements, such prejudice could have been corrected with curative relief such as an admonition or instruction to the jury. I cannot agree with this conclusion and must, therefore, respectfully dissent.

First, a more detailed recitation of the facts leading up to trial is relevant. Prior to trial, the State filed a motion in limine seeking to exclude certain evidence pertaining to the victim, including the victim’s autopsy report showing a blood-alcohol level of .15 and the presence of methamphetamine, the victim’s prior use of drugs, and prior violent conduct of the victim toward appellant, namely cutting him with a knife approximately a year and a half earlier. At a hearing on the motion, the State asserted that, to its knowledge, the defense had not pled self-defense and noted its belief that the defense would be accident. The State also indicated that, if the justification defense was used, that would change some of the State’s arguments and some of the contested evidence would be relevant. The defense unequivocally stated that it was going to use a justification defense, so the State conceded that, under a justification defense, the victim’s drug use at the time and her prior violent act toward appellant were relevant.

110At trial, during its opening statement, the State opted to pre-empt the defense’s introduction of this character evidence regarding the victim and informed the jury that it would hear evidence of the victim’s drug use, both in her past and the day of her death, and evidence of the victim’s prior assault with a knife. The State also, as the majority explains, referenced the various explanations for the victim’s death given to the police by appellant, including that her death was an accident. Defense counsel then proceeded as described by the majority, with counsel characterizing the victim’s death as occurring during a “momentary loss of control.” In its motion for mistrial, the State argued that, by explaining the victim’s death in this way, the defense had essentially asserted accident as a defense, not justification, and that had the State known accident would be the asserted defense, it would have opposed, rather than conceded, the admission of the character evidence regarding the victim.

The majority characterizes the “core” of this case as a dispute over “remarks of defense counsel made during opening statements regarding evidence the prosecuting attorney had already explained to the jury would be admitted at trial.” However, the reference to accident, which I assume is to what the majority refers, was not the basis for the mistrial in and of itself; the necessity for a mistrial resulted from the references during voir dire and the State’s opening statement to negative character evidence of the victim, which would not have been mentioned by the State if not for the defense’s representation that self-defense was its |ntheory of defense, and the resulting prejudice to the State due to the inability to undo the jury’s knowledge of this evidence.

The trial court, in explaining its grant of a mistrial, explained:

What we have here is saying, you know, he had decided to use deadly force. He’s following her off the property and then he loses control and so, suddenly it’s an accident. I don’t think the way it was presented it can be either an — it’s got to either be an accident or it has to be intentional. It can’t be left up for the jury, in the Court’s opinion.
So, based on that, based on the statement, I’ve also [taken] a couple of extra minutes to try to figure out a way to admonish the jury. I know the Model instructions say opening statements are not evidence, not to be considered by the jury. But after we’ve gone on through two hours of voir dire, through the State’s opening, and then we get down to the end and say, “Well, he lost control and ran over her,” I don’t think there’s any way to cure that. So I’m going to grant the State’s motion. I’m going to grant a mistrial in this case.

In other words, the trial court found there was an overruling necessity for the grant of a mistrial, and this court should reverse such a ruling only when there has been an abuse of discretion. Koster v. State, 374 Ark. 74, 286 S.W.3d 152 (2008). The majority does not 112decide whether a change of defense had occurred but instead finds that if any error or prejudice did occur, an admonishment or jury instruction would have been sufficient curative relief. In my opinion, this decision amounts to a second-guessing of what is essentially a judgment call by the trial court, which does not comport to the deference that should be given to the trial court in such a situation. This court has held numerous times that the trial court is in the best position to decide the issue of prejudice because of its first-hand observation. Jackson v. State, 368 Ark. 610, 249 S.W.3d 127 (2007); Davis v. State, 365 Ark. 634, 232 S.W.3d 476 (2006); Barr v. State, 336 Ark. 220, 984 S.W.2d 792 (1999). In addition, in a case factually similar to the case at bar, the United States Supreme Court stated:

We recognize that the extent of the possible bias cannot be measured, and that the District Court was quite correct in believing that some trial judges might have proceeded with the trial after giving the jury appropriate cautionary instructions. In a strict, literal sense, the mistrial was not “necessary.” Nevertheless, the overriding interest in the evenhanded administration of justice requires that we accord the highest degree of respect to the trial judge’s evaluation of the likelihood that the impartiality of one or more jurors may have been affected by the improper comment.

Arizona v. Washington, 434 U.S. 497, 511, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). Likewise, I would accord a great deal of deference to the trial court’s determination that a mistrial was necessary in this case and would therefore affirm the denial of appellant’s plea of prior jeopardy. For this reason, I respectfully dissent.

      . This appeal was previously submitted to us and we ordered rebriefing due to addendum and abstract deficiencies. Shelton v. State, 2009 Ark. 165, 301 S.W.3d 467 (per curiam). Appellant has cured those deficiencies in his substituted brief.

      . We note that the trial court never made an express ruling on the issue of overruling necessity. It did, however, rule on the motion for mistrial and on the motion to dismiss on prior jeopardy grounds. The United States Supreme Court has ruled that a trial court’s failure to make an express finding of manifest necessity when granting a mistrial does not preclude the issue from their review on collateral attack. Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978).

      . The majority also notes that the first reference to the victim’s death being accidental was made by the prosecution, alluding to appellant’s argument on appeal that the prosecution had "opened the door” to any mention of an accident. It is true that appellant’s video-taped statement to the police, during which he provided several explanations as to what had occurred, was no doubt admissible and quite possibly would have been admitted by the State as evidence of guilt. See Martin v. State, 346 Ark. 198, 57 S.W.3d 136 (2001) (finding that the jury could have considered the defendant's inconsistent and conflicting statements as evidence of guilt). But I cannot agree that merely telling the jury that appellant had previously given the police several explanations for the incident, including that the victim’s death was an accident, somehow "opened the door” for appellant to assert accident as his theory of defense after unequivocally stating to the court and the prosecutor that his defensive theory at trial would be self-defense.


author: Justice SCHRODER. CUNNINGHAM, J.,

text:
    Cameron HUNT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2009-SC-000312-DG.
    Supreme Court of Kentucky.
    Aug. 26, 2010.

      Samuel N. Potter, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
    William Robert Long, Jr., Assistant Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Justice SCHRODER.

Appellant Cameron Hunt petitioned this Court for discretionary review of an opinion by the Court of Appeals affirming the revocation of his probation by the Hickman Circuit Court. We granted discretionary review to clarify the due process requirements for a probation revocation hearing.

In December 2006, Hunt filed a motion to enter a guilty plea to first-degree fleeing and evading and first-degree wanton endangerment (both Class D felonies), as well as a number of misdemeanor charges. The Commonwealth recommended a total sentence of three years’ imprisonment. At final sentencing, the circuit court offered Hunt probation on condition that he accept a sentence of ten years’ imprisonment (five years for each felony charge to run consecutively). Hunt agreed, and the court probated his sentence for five years. The court placed a number of conditions on Hunt as part of his probation, including completing a drug court program, complying with electronic monitoring, completing 200 hours of community service, earning his GED, completing the “scared straight” program, and paying fines and fees. Hunt absconded from supervision, and a warrant was issued for his arrest.

After Hunt was arrested on unrelated charges, the circuit court held a probation revocation hearing on September 20, 2007. The full hearing lasted approximately thirteen minutes. . The court appointed a public defender to represent Hunt just prior to the beginning of the hearing, and Hunt’s new attorney had just received his case file earlier that morning. No witnesses were sworn, and no testimony was taken. The judge simply asked a probation officer what Hunt had done to violate the terms of his probation. The probation officer, who was not under oath, proceeded to list Hunt’s violations. Hunt’s probation officer was not present at the hearing.

In response to the probation officer’s unsworn testimony, the trial court asked Hunt to respond. Hunt’s attorney offered a general explanation, informing the court that there had apparently been some confusion about when Hunt was scheduled to report to his probation officer, and as a result, a warrant was issued for his arrest. Following additional explanation by Hunt’s attorney in response to the various allegations, the circuit court concluded, “[T]he defendant having appeared in open court with his attorney ... to show cause why he shouldn’t be revoked, the court having heard evidence finds the defendant violated the terms and conditions of probation.” The circuit court then revoked Hunt’s probation.

Probation revocation proceedings are not part of the original criminal prosecution, and are thus more informal and require less proof than a criminal trial. See Gagnon v. Scarpelly 411 U.S. 778, 786-87, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). For example, the Kentucky Rules of Evidence do not apply. KRE 1101(d)(5). In addition, the standard for revocation of probation is proof, by a preponderance of the evidence, that a violation has occurred. Rasdon v. Commonwealth, 701 S.W.2d 716, 719 (Ky.App.1986) (citing Murphy v. Commonwealth, 551 S.W.2d 838 (Ky.App.1977)).

However, probation revocation is a sufficient deprivation of liberty for certain requirements of due process to apply. Gagnon, 411 U.S. at 782, 93 S.Ct. 1756. To that end, the United States Supreme Court has established the minimum due process requirements for probation and parole revocation, which include

(a) written notice of the claimed violations of (probation or) parole; (b) disclosure to the (probationer or) parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body ... and (f) a writ ten statement by the factfin-der[ ] as to the evidence relied on and reasons for revoking (probation or) parole.

Id. at 786, 93 S.Ct. 1756 (quoting Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)).

The hearing in this case clearly violated Hunt’s due process rights. First, Hunt was denied the right to confront and cross-examine adverse witnesses. Implicit in the right to confront and cross-examine is an assumption that adverse witnesses will be under oath, and subject to formal cross-examination. In this case, no testimony was taken. Rather, a probation officer simply informed the court of Hunt’s alleged violations. Hunt was then asked to respond to these allegations. Due process requires that alleged violations be established through sworn testimony, with the opportunity for cross-examination by the probationer.

In addition, the circuit court improperly shifted the burden of proof. Probation revocation requires proof by a preponderance of the evidence that a violation has occurred. Rasdon, 701 S.W.2d at 719. But in this case, the court stated that Hunt had appeared in court “to show cause why he shouldn’t be revoked [.] ” A “show cause” standard of proof turns a probation revocation hearing into an inquisition, where the probationer is asked to refute the allegations made by the Commonwealth. While the standard of proof is lower for probation revocation than for the original criminal proceeding, the Commonwealth is still required to prove its case.

Hunt also argues he was denied the right to counsel when a public defender was appointed at the time of the hearing, and she had only received Hunt’s file that morning. The United States Supreme Court has declined to adopt a per se right to counsel in probation revocation hearings. Gagnon, 411 U.S. at 790, 93 S.Ct. 1756. However, probationers in Kentucky have a statutory right to counsel at a revocation hearing. KRS 538.050(2). In addition, due process requires that a probationer be given time to prepare and to obtain evidence. Wells v. Webb, 511 S.W.2d 214, 215 (Ky.1974) (citing Gagnon, 411 U.S. 778, 93 S.Ct. 1756). In this case, a short consultation with an attorney the morning of the revocation hearing was inadequate. In presenting Hunt’s defense, his attorney candidly admitted that she had not investigated all of his claims. Hunt was not provided with adequate time to prepare a defense. Thus, Hunt’s due process rights were violated.

The errors in this case are un-preserved, and Hunt requests review for palpable error under RCr 10.26. A palpable error is one resulting in “manifest injustice,” i.e. a “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) (emphasis added). There is little argument that, had Hunt’s revocation hearing complied with the requirements of due process, Hunt’s probation likely would have still been revoked.

The Court of Appeals concluded that, because it could not glean from the record any viable defense Hunt could have presented, there was no probability of a different result, and hence no palpable error. While the record does not reveal any valid defense to revocation, this may have been the result of the serious due process errors in this case, particularly Hunt not having adequate time to prepare a defense. In addition, the circuit court’s failure to comply with the minimum requirements of due process is exactly the type of error to which the “manifest injustice” standard of RCr 10.26 was meant to apply. We have no difficulty concluding that the error in this case was an “error so fundamental as to threaten a defendant’s entitlement to due process of law.” Martin, 207 S.W.3d at 3.

For the foregoing reasons, the order of the Hickman Circuit Court is reversed, and this case is remanded for proceedings consistent with this opinion, if any.

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

CUNNINGHAM, J.,

dissenting:

I respectfully dissent and would dismiss the appeal as moot.

The majority correctly notes that this case is not moot because Appellant is on parole, which is a sufficient restraint for jurisdiction. However, the issue before us is moot as to the relief being afforded. The majority deems the revocation hearing deficient. However, Appellant has been paroled from the sentence the court imposed. Now he will be subject to a new revocation hearing. His previous probation could be properly revoked and he could be sent back to the penitentiary. Or Appellant could have his probation extended with more onerous conditions, including incarceration in the county jail for up to six months. Such a development would also create a clash of supervisory jurisdictions — the parole board and the court. It becomes a procedural quagmire. The only solution is to dismiss the appeal as moot. If Appellant’s parole is violated, then he can once again attack the validity of the revocation proceedings through either RCr 11.42 or CR 60.02.

      . We note that, as of the time of oral argument, Hunt had been released on parole. However, we do not believe that this case is moot, as parole remains a sufficient restraint to confer jurisdiction. See Gagnon, 411 U.S. at 780, 93 S.Ct. 1756: The disposition of this case on remand could also affect Hunt's terms and conditions of release, as well as his official records.

      . This Court recently held that oral findings of fact and reasons for revocation, when a video recording of the oral statements is part of the record, are sufficient to satisfy due process under Morrissey and Gagnon. Commonwealth v. Alternan, 306 S.W.3d 484 (Ky.2010).


author: Justice NOBLE. CUNNINGHAM, J.,

text:
    COMMONWEALTH of Kentucky, Appellant, v. Jarrod L. NICELY, Appellee.
    No. 2009-SC-000313-DG.
    Supreme Court of Kentucky.
    Nov. 18, 2010.

      Jack Conway, Attorney General, David Bryan Abner, Assistant Attorney General, Office of Criminal Appeals, Office of the Attorney General, Frankfort, KY, Counsel for Appellant.
    Timothy G. Arnold, Department of Public Advocacy, Post Trial Division, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Justice NOBLE.

This case presents the question whether a defendant who serves jail time as a sanction in a drug court program, where that program is a condition of probation, is entitled to custody credit for that jail time upon a revocation of his probation. This case also presents the subsidiary question whether an adult probationer can be held in contempt for probation violations. The Court of Appeals held such a defendant can be held in contempt and is entitled to credit only where the sanction is a result of a probation violation, and not a contempt finding. Nevertheless, the court found that the defendant in this case, Ap-pellee, Jarrod L. Nicely, was entitled to jail time credit because proper contempt procedures were not followed. Although this Court disagrees with the Court of Appeals’ reasoning regarding contempt in this case, because we agree that Appellee was entitled to jail time credit, we affirm.

I. Background

Appellee was sentenced to five years in prison for trafficking in a controlled substance within 1000 yards of a school and to twelve months for trafficking in marijuana, less than eight ounces, with the sentences to run concurrently for a total of five years. He had been referred to drug court for assessment and was recommended for the program. The trial court suspended imposition of imprisonment and granted him probation for a period of five years. On December 1, 2005, the court entered an order of probation that included as conditions of probation that Appellee be supervised by the Department of Probation and Parole and “comply w[ith] Drug Court.”

Appellee’s case was then “transferred” to the trial court’s “drug court docket” and he was placed in the drug court program. He struggled there, and his addiction repeatedly got the better of him, resulting in numerous sanctions for program violations, most of which resulted in days in jail. Finally, after deciding that Appellee had been given more than enough opportunity to improve, the trial court “exited” him from the drug court program, ordered that a probation revocation hearing be held, and that probation and parole calculate his pretrial credit pursuant to KRS 532.120(3). A “presentence investigation report” was filed by probation and parole indicating that Appellee was entitled to 301 days of pre-imprisonment, jail-time credit, including the days he spent in jail on drug court sanctions.

The trial court refused to give Appellee credit for the days spent in jail due to drug court sanctions, stating first that there was “case” authority for the denial. The court eventually concluded that the drug court sanctions were imposed under its contempt powers and were not imposed because of Appellee’s probation status. Consequently, the trial court reasoned that those days did not count toward custody credit, and allowed only 43 days custody credit for time served before sentencing.

Appellee appealed to the Court of Appeals, claiming that the trial court could not deprive him of any of the 301 days under the sentencing statutes, and could not exercise its contempt power to impose drug court program violations. The Court of Appeals held that a trial court can impose sanctions in a drug court program under either its contempt powers or as a probation violation. Under this approach, a defendant is not entitled to credit for a contempt sanction, but is entitled to credit for a probation violation sanction. However, the Court of Appeals stated that if the trial court proceeded under contempt, certain due process requirements had to be met. The Court of Appeals concluded that Appellee was entitled to the full custody credit because those due process requirements had not been met.

The Commonwealth sought further appeal before this Court. As this case presents questions of first impression, this Court granted discretionary review.

II. Analysis

To address the issue before the Court, it is necessary to explain the nature of drug court, its relationship with probation and diversion programs, and the confusion of many terms associated with the program.

Stated simply, drug court is a treatment program that involves court participation in and enforcement of the program terms that may be offered to a criminal defendant with addiction problems as a condition of probation or a term of a diversion agreement between the defendant and the Commonwealth Attorney. Since the terms of probation are set by the trial court, whenever the terms of the drug court program are changed by the court requiring an act or imposing a sanction, this is a modification of the probation which can only be done by the court, and is thus a judicial act. However, the drug court program is not a formal court, in the sense of a regular court having a formal docket, but it does have an informal docket and is presided over, quite informally, by a judge. The Kentucky Adult Drug Court Procedures Manual, produced by the Administrative Office of the Courts in support of the drug court Administrative Procedures, describes it thusly, “Drug court is court-supervised and successfully combines a strong treatment component with the legal weight of law enforcement.” Administrative Office of the Courts, Kentucky Court of Justice, Kentucky Adult Drug Court Procedures Manual 4 (Jan. 2008) [hereinafter Procedures Manual ]. The “supervision” of the court requires judicial discretion in modifying the conditions of probation as needed during the program. Without this judicial authority, no jail time sanctions could be imposed. Local jailers would refuse to accept a defendant without a court order. Absent the legal requirements of probation review and modification, there is no authority to impose jail time sanctions, including as a contempt of court, contrary to the Appellant’s argument. Under what authority would a judge order a defendant to jail if drug court were not a court function? However, it is a court function, clearly laid out as an alternative sentencing program under the applicable statutes.

Drug court began as a court program in the 1980s in Miami, Florida, in response to “skyrocketing costs of incarceration and the escalating number of drug-related arrests.” Id. Using the supervisory power of the courts over addicted defendants, the local criminal justice system developed a program that combined mandatory drug treatment, frequent judicial review, random and frequent drug testing, and intensive case management. Kentucky followed suit some ten years later. Id. Independent research done by the University of Kentucky’s Center on Drug and Alcohol Research (CDAR) has confirmed the startling success of the program: for program participants, there is a 20.2% recidivism rate compared to a 57.3% rate for those who did not participate in the program. Id. This has resulted in a savings to the criminal justice system and medical expenses in the ratio of 5:1 for every dollar spent on drug courts, and the trickle-down savings from these defendants being self-supporting and paying child support, though not tracked, is substantial. See id. Per individual participant, a year in drug court costs less than one-fourth the cost of keeping a defendant in prison for one year. Id. at 5.

While no new statutes were enacted to establish the program, it is statutorily based in that the statutes which already gave the court system authority to act in regard to probation and diversion govern the program without need for further enactments. In cases involving probation, the program developed by the courts is aligned with KRS 583.020 and 533.030. In diversion, the program is aligned with KRS 533.250, 533.254 and 533.262. While the drug court program is the same for either a probation or diversion defendant, how it is accessed differs according to the requirements of probation versus diversion.

When a defendant enters the program through probation, the trial court will have accepted a guilty plea or the defendant will have been convicted by a jury. See KRS 533.020. At sentencing, the defendant’s sentence is fixed at the appropriate term of years, but service of the sentence in the penitentiary is suspended, and the defendant is placed on probation for a term of up to five years. To this point, these are the simple mechanics of placing any defendant on probation.

However, if a defendant has been screened and found eligible to participate in drug court, see Procedures Manual at 10-11, the trial Court may choose to exercise its discretion to make the successful completion of the drug court program the primary condition of the probation, provided the defendant is willing to participate. Drug court is a voluntary program, and requires the consent of the sentencing court and the defendant. The program requires a defendant to make several commitments to enter the program and avoid immediate incarceration. One of these commitments is a waiver of full hearing rights during program participation, which does not affect the participant’s due process rights in a probation revocation hearing if for some reason he is exited from the program. Procedures Manual at 12.

Use of the drug court program as a condition of probation is in accord with KRS 533.020(2), which allows the court to sentence the defendant to an alternative sentence without imposition of imprisonment, when “probationary supervision alone is insufficient.” This insufficiency arises most often when the defendant is severely addicted to drugs. The statute gives the sentencing court broad discretion in formulating the alternative sentence, and this became the enabling principle which led to the development of the drug court program by the Court of Justice. By combining treatment and supervision with the authority of the trial court to revoke probation, a very effective alternative sentence was designed, as demonstrated by the statistics referenced above. The ability to design the necessary probation terms and conditions is specifically granted to the trial court in KRS 533.030, which grants broad discretion to the court as well as provides a laundry list of possible conditions “in addition to any other reasonable condition” imposed by the court. If the defendant successfully completes the program, he has met the primary condition of his probation, and may be placed on conditional discharge for the remainder of his probationary term, or remain on general probation supervision until the term is served. At that time, the defendant shall be deemed “finally discharged.” KRS 538.020(4). The imprisonment part of the defendant’s sentence will be imposed only if he fails to complete his conditions of probation and has his probation revoked.

Once the defendant has been alternatively sentenced to do his time in drug court rather than in prison, his case is transferred to a drug court docket, which is a docket where the drug court judge generally monitors the probation by having the defendant report to the court on a regular basis to have his progress reported. This allows the drug court judge to impose sanctions as punishment for relapses or other acts of bad judgment, or to simply “exit” or discharge the defendant from the program and set a probation revocation hearing. This monitoring is post-judgment, and consists of active review of a probated defendant’s treatment program by the trial court. Rather than discharging defendant-participants for every violation and proceeding to revocation, drug court judges frequently require service of time in the local jail as a sanction. However, when a defendant is recalcitrant or resistant to treatment, he may forfeit the right to participate further in this alternative sentence, in the trial court’s discretion, and be discharged from the program.

While the defendant is technically under the supervision of the Department of Probation and Parole during his referral to drug court, the department’s involvement is usually minimal at this point, as it would be if a defendant were sent to another type of treatment program such as The Hope Center or Crossroads, two well-known treatment programs that are licensed by the state. See KRS 439.480. However, when a defendant is discharged from the program, his probation officer becomes more actively involved, and will be present at the revocation hearing and will be responsible for providing the court with the number of days a defendant has spent in local custody prior to being revoked and having the imprisonment part of his sentence imposed. The probation officer informs the court of the number of days in a revised presentence investigation report. KRS 522.050(2).

The dissent in this case expresses concern that drug courts are not a court of record. To the contrary, every action taken as a sanction in a drug court program by the court is filed in the record as a written order, which is proven by the record in this case. The court must enter a commitment order before the defendant can be admitted to the jail. Only a court can order a defendant to jail, and the court only has the authority to do so at all because there is a legal basis allowing imposition of jail time. For a drug court violation, that is a violation of the terms of the participant-defendant’s probation, which the court decides to modify rather than revoke.

The dissent also expresses concern that a drug court sanction cannot be a modification of probation because the elements of due process normally accorded a defendant at a probation revocation hearing are not followed. For example, the defendant appearing before the drug court judge usually does not have counsel. However, defendants who enter drug court waive those rights while in the program, .and upon discharge from the program, the defendant retains all those rights at any revocation hearing that follows.

The issue in this case involves the time spent in local jails as sanctions from the drug court judge for program violations. The question is whether this time should be counted as time served as punishment within the drug court program under the trial court’s contempt powers, or as time served toward a sentence of imprisonment once the defendant’s probation is revoked and he is ordered to prison.

At the heart of this question is the query, “What is a sentence?” When a defendant is convicted or pleads guilty, the trial court then sentences him to a fixed term of years, though we say it is indeterminate because of various ways the term can be shortened by operation of law. As an alternative to a sentence of imprisonment, a court, under certain circumstances, “may sentence such person to a period of probation.” KRS 532.040. In such cases, the trial court is actually sentencing the defendant to probation with conditions, as evidenced by the statutes’ repeated use of the language “a sentence of probation.” E.g., KRS 532.040, 533.030(2). Also part of a sentence of probation is a term of years of imprisonment, service of which is suspended during the pendency of the probation (for a period of time not to exceed five years). One way to think of a sentence of probation is that it is a conditionally suspended term of imprisonment. If the defendant successfully completes probation, then he is finally discharged, and will not have to serve the term of imprisonment. On the other hand, if he fails to follow through on the conditions, then his probation can be revoked. At that time, the trial court imposes the part of the sentence that fixed a term of imprisonment and commits the defendant to that imprisonment.

Though the defendant was sentenced to this term of years on his original sentencing date the imprisonment did not “com-meix'.." at that time because it was suspended in favor of probation. When the defendani • is revoked, he does not get a new sentence; he merely has the imprisonment part of the sentence imposed. This follows from KRS 532.120(2), which states, “A definite sentence of imprisonment commences when the prisoner is received in the institution named in the commitment.” This statutory language makes it clear that a sentence of imprisonment does not commence until the defendant is received in a prison. The next subsection goes on to require that any time served before “commencement” be counted toward the sentence of imprisonment:

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. If the sentence is to an indeterminate term of imprisonment, the time spent in custody prior to the commencement of the sentence shall be considered for all purposes as time served in prison.

KRS 532.120(3) (emphasis added). It is obvious that these two sections, both part of the same statute, are meant to be read together, and that “commencement of a sentence” as used in the latter section is defined by the prior. Thus any time served “as a result of the charge that culminated in the sentence” must be counted toward “service of the maximum term of imprisonment.” Since a sentence of imprisonment is further indeterminate, any time spent in custody prior to commencement of imprisonment must be considered as time served in prison.

There is some debate whether drug court sanctions served in jail are as a result of the underlying crime. One argument is that the jail time is for violation of a drug court program rule, and that it does not relate to the underlying crime. However, this is no different than days spent in jail during regular probation when a defendant has committed an infraction that the trial court does not deem sufficient for revocation, but requires a sanction in the form of service of days in jail. In either case, the defendant would not be subject to the court imposing jail time but for the underlying conviction that allowed him to be placed on probation. The trial court has specific statutory authority to modify the terms of probation, see KRS 533.020(1), which may include “a period of imprisonment in the county jail,” KRS 533.030(6). Since probation generally means that the defendant is not in custody, the only authority a trial court has to place him in custody is to revoke probation, and order commencement of the sentence of imprisonment, or to modify the conditions of probation to include a period of incarceration in the local jail. Without such statutory authority, a court has no power to incarcerate a person without an underlying criminal conviction, except for contempt.

However, when a statutory provision governs, a court must apply that law rather than its inherent power of contempt. Arguably, any time a defendant violates a court order, he is subject to contempt proceedings. But when the legislature has prescribed standard provisions meant to apply to all defendants, it is not sound policy to resort instead to the individualized view of the court exercising its contempt power, which necessarily excludes the operation of the statute that governs. The better approach is embodied by the rule applied by a majority of states to this type of situation:

[T]he overwhelming majority of jurisdictions that have considered this issue have concluded that holding a defendant in contempt of court for violating conditions of probation offends fundamental principles of fairness. E.g., Alfred v. State, 758 P.2d 130, 132 (Alaska Ct.App. 1988) (“When a defendant violates a condition of probation, we believe that fairness requires that the court adhere to the terms of its agreement, and conduct a probation revocation hearing, not a contempt hearing.”); Jones v. United States, 560 A.2d 513, 516 (D.C.1989) (“[T]he only appropriate sanction [for a violation of probation] is a withdrawal of the previously afforded favorable treatment rather than the imposition of an additional penalty.”); Williams v. State, 72 Md.App. 233, 528 A.2d 507, 508 (1987) (“When a probationer violates a condition of his probation, he is not subject to an additional punishment for that violation; but rather to the forfeiture of his conditional exemption from punishment for the original crime.”), superseded by statute with regard to restitution orders only as recognized by, Songer v. State, 88 Md.App. 221, 594 A.2d 621, 622 (1991); State v. Williams, 234 N.J.Super. 84, 560 A.2d 100,104 (App.Div.1989) (“Contempt of court should not be superimposed as an additional remedy in a probation violation setting if the act that occasions the violation itself is not otherwise criminal”).

A.W. v. Commonwealth, 163 S.W.3d 4, 8-9 (Ky.2005) (Cooper, J., dissenting).

The Appellee would not have been in drug court, and consequently would not have served sanctions in jail, without the underlying criminal conviction. Other treatment programs may impose sanctions for violations of their rules, but none of them has the power to incarcerate. Only the trial court, through its power to modify, rather than revoke, probation, may deprive a defendant of his liberty. And if the trial court does not think the defendant should continue at liberty due tp- violations, it has the power to revoke and impose incarceration in the penitentiary. These powers are granted by statute, rather than being inherent to protest the dignity and authority of the court, and when such statutory enactments specify what the court may do, the court should follow them, rather than relying on its inherent power.

This does not mean that the court has any less ability to sanction a defendant or any person appearing before the court for disrespectful or improper behavior which demeans the dignity of the court, including anyone on probation. However, drug court program violations, such as those seen here, are not personal to the court, nor directed to defiance of the court, but rather are part of the treatment of addiction. When a trial court determines that a drug court participant has had ample opportunity to improve but has failed to do so, the court is properly justified in discharging him from the program and setting a revocation proceeding. Such behavior, however, does not justify a separate contempt proceeding, which requires a finding that the defendant intended to hold the court in disrepute through his addiction failures, either because he could not or would not give up the use of drugs. Even if he is being revoked because he committed another crime, for which a separate punishment may be imposed in the future, it is not a matter of contempt of court but of a violation of our laws.

The Court of Appeals is correct in saying that a defendant cannot be punished for both contempt and a violation of the law for the same behavior. However, this Court does not agree that the trial court has the option to find contempt rather than to apply the law of probation. The punishment that follows from modification or revocation of probation — namely, service of the underlying term of imprisonment, whether in part or whole — is sufficient to address the behavior that violated probation. A defendant on probation may be incarcerated as a modification of his existing probation, or because he has violated some other law, or because of independent, intentional behavior showing disrespect for the court, constituting civil or criminal contempt. In the latter, the court imposing contempt will have the burden to establish the reasons why the act of the defendant should be considered contempt rather than a violation of his probation, which would subject him to modification or revocation, if questions of custody credit arise.

The Appellee in this case is entitled to custody credit for the days he served as drug court program sanctions. The trial court modified his probation, rather than revoking him, in every instance in which days in jail were required. All the incarcerations were specifically tied to drug court program violations for drug use or drug-seeking behavior, not for any separate disrespect directed at the judge or the courts in general, as criminal contempt. They certainly could not be said to be in the nature of civil contempt, because the Appellee definitely did not hold the key to his cell door. His incarcerations were for specific periods of time, tied to a specific program violation.

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, 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.

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 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.

      . This Court has previously addressed a similar question related to juveniles, whose criminal conduct is governed by the Unified Juvenile Code rather than the Kentucky Penal Code. See A.W. v. Commonwealth, 163 S.W.3d 4, 6-7 (Ky.2005). However, as the majority opinion noted, it was “not dealing with adult sentencing, [but] rather a very spe-ciñe Kentucky Juvenile Justice Code.” Id. at 6; see also id. at 9-10 (Cooper, J., dissenting) ("The majority opinion does not dispute that an adult cannot be held in contempt of court for violating a condition of probation....”). As such, the question whether an adult probationer can be held in contempt for probation violations is an open question.