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Tom Padgett's Child Custody Case
Kentucky Court of Appeals, March 8, 2002
Opinion Reversing and Remanding
in Case # 2000-CA-002693-MR
RENDERED: March 8, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court Of Appeals
NO. 2000-CA-002693-MR
THOMAS C. PADGETT APPELLANT
APPEAL FROM HOPKINS CIRCUIT COURT
v. HONORABLE CHARLES W. BOTELER, JR., JUDGE
ACTION NO. 98-CR-00067
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
REVERSING AND REMANDING
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BEFORE: BARBER, DYCHE AND MILLER, JUDGES.
BARBER, JUDGE: Thomas C. Padgett ("Padgett") appeals from an October 30, 2000 order of the Hopkins Circuit Court which denied Padgett's Kentucky Rules of Civil Procedure (CR) 60.02 motion to reinstate his pretrial diversion, sentencing him to serve five years but probating the sentence for three years. After careful consideration, we reverse.
In March of 1998, a Hopkins Circuit Court grand jury indicted Padgett on one count of flagrant non-support, Ky. Rev. Stat. (KRS) 530.050. On October 24, 1998, Padgett signed a pretrial diversion agreement pursuant to KRS 533.250, and on November 16, 1998, he pled guilty to the charge of flagrant non-support in reliance upon said diversion agreement. The Hopkins
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Circuit Court sentenced Padgett pursuant to the diversion agreement, and the court ordered Padgett's attorney to prepare a supplemental agreement to address the arrearage that Padgett owed. On February 18, 1999, Padgett signed the supplemental diversion agreement, which incorporated the first diversion agreement; it was filed with the Hopkins Circuit Clerk on March 17, 1999.
Prior to sentencing, the circuit court had obtained documents from both the Hopkins Commonwealth Attorney and an officer for the Division of Probation and Parole. These documents were allegedly from Padgett, and their contents apparently implied or insinuated that Padgett considered his guilty plea coerced thus involuntary. During sentencing on January 19, 1999, the circuit court closely questioned Padgett regarding the voluntariness of his guilty plea. However, Padgett persisted in his guilty plea.
Subsequently, the Commonwealth Attorney requested that Padgett execute an affidavit in which he re-affirmed his guilt. Apparently, the circuit court did not order Padgett to do so since the record does not contain such a written order nor does the video record reflect such a verbal order. Furthermore, subsequent to sentencing, the circuit court received standardized pretrial diversion order forms from the Administrative Office of the Courts ("AOC"). The circuit court gave said AOC order forms to the Commonwealth Attorney, who completed the forms and sent
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said forms to Padgett's attorney to be reviewed and signed by Padgett, so the AOC order forms could be filed with the court.
The record reflects that Padgett did draft at least two affidavits. Transcript of the Record (T.R.), pages 60-70. Padgett failed to admit his guilt to flagrant non-support in either affidavit as requested by the Commonwealth Attorney. In fact, Padgett stated in one affidavit that he had been "set-up for fictional crimes." T.R., page 62. In both affidavits, Padgett made various disparaging remarks about the circuit court, the Commonwealth Attorney, his ex-wife, and blamed all of his legal problems, both civilly and criminally, upon the Church of Scientology. However, this Court notes that while Padgett did not admit his guilt in these affidavits, he did not deny his guilt, and did not file a motion to set aside his guilty plea. In fact, subsequently and on several occasions, Padgett affirmed his guilty plea in open court. Further, this Court notes that the record does not indicate that Padgett was ever ordered to draft an affidavit admitting his guilt.
Regarding the AOC order forms, the record reflects that on April 10, 2000, in open court, the circuit court verbally ordered Padgett to sign the set of forms as prepared by the Commonwealth Attorney and approved by itself. The circuit court verbally ordered Padgett to take this set of AOC order forms to his attorneys for their review and ordered Padgett to file said forms with the Hopkins Circuit Clerk no later than April 24,
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2000. The record reflects, and Padgett admitted in open court, that on at least two occasions, one prior to April 10, 2000 and one subsequent to April 10th, that he had altered the AOC forms in his possession. The record contains at least one of these altered AOC forms, in which Padgett added provisions that were contrary to both the original diversion agreement and the supplemental agreement. Also, the record reflects that Padgett never complied with the circuit court's order of April 10, 2000 to file the AOC order forms with the Hopkins Circuit Court.
On May 4, 2000, the Commonwealth Attorney filed a motion to hold Padgett in contempt for his failure file the AOC order forms by April 24, 2000. Before the hearing date, the Commonwealth filed an amended motion and added a request to revoke Padgett's diversion due to failure to pay his current child support for June and July of 2000 as required by the diversion agreement. At a hearing on August 14, 2000, the Commonwealth Attorney presented only one witness in support of his motion to revoke, Padgett's ex-wife, Laura V. Padgett. Ms. Padgett testified that she had not received a child support payment for the months of June and July 2000. Over the defense's objection, the Commonwealth Attorney testified that he had contacted the Division of Child Support Enforcement ("DCSE") that morning; according to the DCSE, Padgett had not paid his child support for June and July. Padgett testified that a nameless benefactor had paid his child support and presented photocop ies
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of the front of two signed but uncancelled checks that purported to be Padgett's child support payments for June and July. The circuit court found that Padgett had violated the terms of the diversion agreement by failing to make required child support payments. Subsequently, on August 22, 2000, the circuit court re-sentenced Padgett to five years in prison.
On September 12, 2000, Padgett, through counsel, made an oral motion pursuant to CR 60.02 to set aside the circuit court's revocation of his diversion due to newly discovered evidence. At a subsequent hearing on October 30, 2000, Sandra Massamore, who worked for the DCSE, testified that Padgett's June and July 2000 child support fees were paid late. The record reflects that Padgett's checks had been sent to the wrong DCSE office. Padgett argued that since he had paid his child support, the circuit court should reinstate his pretrial diversion. As mentioned above, the circuit court denied Padgett's motion, but set aside its August 22, 2000 sentence and re-sentenced Padgett yet again to five years probated for a period of three years. Padgett subsequently appealed.
On appeal, Padgett argues that the circuit court violated his right to due process by revoking his pretrial diversion without cause and without a fundamentally fair hearing. Padgett states that the circuit court revoked his diversion because he failed to file the AOC order forms; failed to draft an affidavit; failed to pay child support for the months of June and
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July 2000; and persisted in a pattern of paying his child support obligation late. Padgett argues that he did not violate either the provisions of the diversion agreement or the statutory requirements of KRS 533.250 when he failed to file the AOC order forms and failed to drafted the affidavit regarding his guilt. Padgett contends that neither the agreement nor KRS 533.250 required him to file AOC order forms or draft an affidavit regarding guilt. We agree.
After reviewing the original pretrial diversion agreement, the supplemental agreement, KRS 533.250 that sets forth the requirements for diversion and KRS 533.256 that sets forth the consequences for failure to abide by a pretrial diversion agreement, we find that Padgett was not required as a term of his diversion agreement to perform either of the above. While the circuit court did order Padgett to sign and file the AOC order forms, this was not a term of the diversion agreement. Padgett's failure to do so subjected him to the circuit court's contempt power; however, his failure was not a violation of the diversion agreement and could not be used to revoke it. As for the affidavit, the record does not reflect that the circuit court ever ordered him to draft such a document. Apparently, it was merely a request by the Commonwealth Attorney. While it may have been a reasonable request, it was unnecessary since Padgett had entered a guilty plea freely, knowingly, and vol untarily on November 16, 2000, and said plea was never set aside and to this
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day remains valid. Padgett's refusal to comply with the Commonwealth's request was of no legal consequence. Furthermore, even if the circuit court had ordered Padgett to draft said affidavit, his failure to do so, as above, would only subject him to the court's contempt power.
Padgett concedes that failure to pay his child support obligation would be a violation of his diversion agreement and would be sufficient grounds to revoke his diversion. However, he argues that since he, in fact, paid his child support for June and July, he did not violate the terms of his diversion. We agree. On August 14, 2000, when the circuit court revoked Padgett's diversion, its decision was supported by substantial evidence. However, at subsequent hearing, Padgett showed that this evidence was incorrect. The circuit court could not then rely on said evidence to support its decision and should have reinstated the pretrial diversion agreement as it existed prior to August 14, 2000.
After reviewing the pretrial diversion agreement, we find that timely payment of Padgett's child support obligation is one of the terms set forth in the original pretrial diversion agreement. T.R., page 35. However, Padgett argues that the circuit court could not use failure to make timely child support payment as evidence to support its August 14, 2000 order revoking his diversion because in the Commonwealth's motion to revoke his
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diversion failed to state untimely payment as a ground on which it was seeking revocation. We agree.
KRS 533.256 states in pertinent part:
In making a determination as to whether or not a pretrial diversion agreement should be voided, the court shall use the same criteria as for the revocation of probation, and the defendant shall have the same rights as he or she would if probation revocation was sought .
(Emphasis added.)
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.
Pursuant to KRS 533.256, this statute and the case law pursuant to it apply to pretrial diversion. In Rasdon v. Commonwealth , Ky. App., 701 S.W.2d 716 (1986), the Jefferson Commonwealth Attorney filed a motion to revoke defendant's probation and stated as grounds for revocation that defendant had subsequently committed the crimes of first-degree sodomy and first-degree robbery. Id. At hearing, the Commonwealth presented evidence that a preliminary hearing had been held and that the defendant had been indicted but did not present evidence that the defendant actually committed the crimes. However, it presented evidence
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that defendant had associated with an individual of disreputable character. Id. at 718. The trial court revoked defendant's probation because of his association with a disreputable individual, even though the Commonwealth did not given written notice of that in its motion to revoke. Id. This court reversed because the Commonwealth's motion failed to give written notice that it intended to use defendant's association with a disreputable person as a grounds for revocation. Id. at 719. This court stated, "[a] written notice of the grounds for the proposed revocation is an absolute essential for this type proceeding." Id. This court also stated, [i]f other specific violations existed, they should have been stated in some manner to notify him [defendant] of the charges he would be required to defend." Id. 717.
In the case sub judice , the only grounds the Commonwealth stated in support of its motion to revoke Padgett's diversion were that Padgett had failed to pay child support for June and July 2000. The Commonwealth did not mentioned a pattern of late payments on Padgett's behalf. In fact, at the August 14, 2000 hearing, no evidence was offered to establish that Padgett had engaged in a pattern of late payments. This evidence was not presented to the circuit court until October 30, 2000, more than two months after it had revoked Padgett's diversion. The circuit court erred when it denied Padgett's CR 60.02 motion to reinstate his pretrial diversion.
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Therefore, for the reasons stated above the judgment of the Hopkins Circuit Court is reversed, and this case is remanded with instructions to reinstate Padgett's pretrial diversion agreement under its terms as set forth in the October 24, 1998 agreement and the February 18, 1999 supplemental agreement. However, we must caution Padgett that this opinion does not preclude the Hopkins Commonwealth Attorney from seeking revocation of his pretrial diversion on the grounds of late payment if said grounds are properly presented in a motion that gives Padgett adequate written notification.
ALL CONCUR.
Michael C. Lemke
Appellate Public Advocate
Louisville, Kentucky BRIEF FOR APPELLEE:
Albert B. Chandler, III
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
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Tom Padgett's affidavit regarding the above ruling
From: tommyboy508@webtv.net (Tom Padgett)
Newsgroups: alt.binaries.scientology
Subject: AFFIDAVIT in Case # 98-CR-067
Date: Fri, 15 Mar 2002 09:46:49 -0500 (EST)
Message-ID: <11889-3C920959-22@storefull-2277.public.lawson.webtv.net>
For the officers of the Kentucky 4th Judicial Circuit Court - Hopkins County Re: inaccuracies in the KY Court of Appeals March 8, 2002 Opinion Reversing and Remanding in Case # 2000-CA-002693-MR The FACTS are: In re: a plea of guilt as a condition of the Pre-trial Diversion Agreement I signed on October 24, 1998, there are two (2) requirements to be charged with non-support per KRS 530.050 a) behind in payments for a period of six (6) months or longer and/or b) behind in excess of one thousand dollars ($1000.) On November 16, 1998, I plead guilty to being behind (checks not written) for a period of longer than 6 months. I can not nor will not retract or refute these known facts. However, I DID NOT plea guilty to owing any dollar amount - not even one thin dime. Per the Supplementary Pre-trial Diversion Agreement of February 18, 1999, whereby the actual arrearage amount owed (if any) was to be determined in Civil Action 92-CI-00444. In that case, my legal counsel has briefed the court on October 8, 2001 that I have made "overpayments" in the amount of $26,751.32 based on discovery of facts and application of statutory law in regarding support calculations. In re: any element of coercion present in the criminal indictment against me filed in March of 1998, I believe there have been significant misrepresentations made to me by various officers of the Hopkins Circuit Court. 1.The prosecutor in this case, Commonwealth Attorney David Massamore failed to reveal up front that he was a neighbor of the complaining witness AND the complaining witness's sister in an affluent development in Madisonville. I believe he should have recused himself for potential "personal" favors rendered thus conflicts of interest. 2. The judge in this case was motioned by my counsel in 1999 to recuse himself for several issues of conflicts of interest, one being that he was also the same judge in the civil action, that has allowed that litigation to go on and on approaching ten (10) years now. 3. On September 12, 2000, I was released by the Hopkins Jail onto the streets in a bright orange Christian County Prison uniform without any money or personal identification. I have written to the various participants at the jail and to the Ky Dept. of Corrections as to explanation of why this was done. To date I have had no response......or even a simple apology. In re: the statement "The record reflects that Padgett's checks had been sent to the wrong DCSE office." That is completely false. They were sent to the correct address. It was discovered that the DCSE posted them to the wrong case # account. It was, and still remains my belief this was a deliberate act to set me up to give the appearance and reason that I defaulted on the Pre-trial Diversion Agreement. In re: the statement ".....Padgett .....blamed all of his legal problems, both civilly and criminal, upon the Church of Scientology." Until the officers of the Hopkins Circuit Court both in civil or criminal proceedings against me, or the Petitioner in Civil Action 92-CI-00444, can produce an expert witnesses in medicine (a psychiatrist,) the behavior or social sciences (a psychologist or sociologist,) or clergy from any main line faith (a minister, priest, or rabbi,) to make a sworn under oath assessment to the contrary, I will continue to contend and assert that the belief system of Dianetics aka Scientology is extremely worthy of blame in this case and the civil action that is "connected" via the February 18, 1999 Supplemental Pre-trial Diversion Agreement. A website of www.madvillelaw.net is under construction by (other) interested parties to support this claim and to make every known detail and fact public since the records of the Hopkins Circuit Court "records" have been severely compromised heretofore. _____________________ Thomas C. Padgett, Defendant COMMONWEALTH OF MASSACHUSETTS COUNTY OF PLYMOUTH SIGNED BEFORE ME UNDER OATH BY MR. THOMAS C. PADGETT ON THIS THE ______ DAY OF MARCH 2002. _________________ (seal) Notary Public My commission expires:______