Joel Naselroad’s Motion for Shock Probation

Please notice that there is no victim. The “plaintiff” is the state. So… who was actually harmed? KyFreePress asserts that no victim, no crime.

COMMONWEALTH OF KENTUCKY
CLARK CIRCUIT COURT
CRIMINAL BRANCH
1ST DIVISION

COMMONWEALTH OF KENTUCKY
PLAINTIFF
vs No. 13-CR-114
MOTION FOR SHOCK PROBATION AND TO CORRECT DEFENDANT’S CUSTODY CREDIT
JOEL NASELROAD DEFENDANT

* * * * * * * *

Comes now the Defendant, Joel Naselroad, by and through the undersigned counsel, and hereby Moves this Honorable Court pursuant to KRS § 439.267 to grant him the privilege of shock probation. Additionally, the Defendant requests that the Court Order that the Defendant be credited with an additional ten (10) days of custody credit. In support thereof, the Defendant states as follows:

1) Joel Naselroad was convicted after a jury trial of possession of marijuana and possession of drug paraphernalia, both misdemeanor offenses;

2) Joel was sentenced by this Court to serve 120 days on those offenses on July 10th, 2014;

3) Since that time, Joel has been in the custody of the Clark County Detention Center and is presently serving that sentence;

4) Joel has never been incarcerated before the instant case, and without a doubt this period of incarceration has made a significant impact on him. Joel has faced some unique challenges due to his incarceration because he was placed in protective custody for a period of time, leading other inmates to believe that Joel was jailed for a child molestation offense. Simply stated, his incarceration has greatly imperiled his well-being;

5) Joel is presently on disability, and due to his incarceration he is unable to participate in a comprehensive psychological exam to determine his ongoing disability. Therefore, the Social Security Administration is threatening to discontinue his disability benefits;

6) Joel has also been discontinued at the pain clinic due to his incarceration, and is essentially without any kind of pain management for the gunshot wound that he is still recuperating from;

7) Joel’s instant offense is for possession of marijuana and drug paraphernalia – both misdemeanor offenses. The undeniable thrust of recent sentencing reforms within the Commonwealth is that first-time drug offenders should be managed in the community as opposed to incarcerated;

8) Indeed, individuals who are convicted of felony possession of a controlled substance are eligible for presumptive probation, which can only be overcome “by a finding on the record by the sentencing court of substantial and compelling reasons why the defendant cannot be safely and effective supervised in the community, is not amenable to community-based treatment, or poses a significant risk to public safety.” KRS §§ 218A.010(3); 218A.1415(2)(d);

9) While the undersigned recognizes that Joel is not incarcerated on a felony drug possession charge and is instead incarcerated on misdemeanor drug and paraphernalia charges, it is submitted that the underlying rationale to the felony presumptive probation statutory scheme is equally applicable to Joel;

10) Charges of possession of marijuana and drug paraphernalia are routinely given fines in district court;

11) While the undersigned understands the Court’s “long standing position” that any defendant found guilty subsequent to a jury trial is sentenced to imprisonment, the undersigned and Joel entered into the agreement with the Commonwealth with the understanding that Joel would be given the opportunity to serve on probation;

12) It is respectfully suggested that this position is in contravention of the law. KRS § 533.010 notes that “[b]efore imposition of a sentence of imprisonment, the court shall consider probation, probation with an alternative sentencing plan, or conditional discharge. . . probation shall be granted unless the court is of the opinion that imprisonment is necessary for protection of the public because (a) there is substantial risk that during a period of probation or conditional discharge the defendant will commit another crime; (b) the defendant is in need of correctional treatment that can be provided most effectively by his commitment to a correctional institution; or (c) a disposition under this chapter will unduly depreciate the seriousness of the defendant’s crime.” 533.010 further mandates that findings regarding the above be made on the record. The Court did not make any of those required findings for imposing a sentence of imprisonment. See Knox v. Commonwealth, 361 S.W.3d 891 (Ky. 2012) (holding that sentence of imprisonment must be based upon consideration of the circumstances of the crime as well as the history, character and condition of the defendant);

13) The Court did express concerns about Joel’s mental health state. Before Joel was incarcerated he was receiving mental health treatment and was seeking to continue receiving mental health treatment for, amongst other things, PTSD. Since being incarcerated, Joel has been without mental health treatment. Should Joel lose his SSDI, his ability to continue to receive treatment will be imperiled;

14) Joel was arrested by Detective Keeton on October 8th, 2013, while Joel was treating at UK Hospital for his gunshot wound. At the time that he was arrested, he was placed under guard and his family was asked to leave the room. From October 8th on, it is submitted that Joel was “in custody” for the purposes of his custody credit calculation pursuant to KRS § 532.120. See Bartrug v. Commonwealth, 582 S.W.2d 61 (Ky. 1979); Rees v. Garrett, 2007 WL 1378452 (Ky. Ct. App. 2007);

15) Joel was in UK Hospital and under guard until October 17th, 2013 and then taken to the CCDC where he was released the next day. Therefore, counsel requests that Joel be credited with the ten (10) days that he spent in the hospital under guard subsequent to being arrested plus the day spent in the CCDC;

16) Finally, because of Joel’s notoriety and animosity between him and the local police, it is respectfully requested that the remainder of Joel’s 120 day sentence be conditionally discharged;

WHEREFORE, the Defendant respectfully requests that the Court grant him the relief that he requests in the instant Motion. Simply stated, Joel has been significantly punished and the instant period of incarceration has made a significant impact upon him. It is respectfully requested that the Court release him so that he can get the treatment that he needs and that he can effectively pursue an appeal of the pending denial of his SSDI benefits.

Respectfully submitted,

__________________________
R. Tucker Richardson, III
Baldani, Rowland & Richardson
300 W Short Street
Lexington, KY 40507

NOTICE
Please take notice that this Motion shall come on for hearing on August 14th at the hour of 11:00AM or as soon thereafter as counsel may be heard.

CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing has been served via USPS mail and e-mail upon:

Hon. Charles Johnson
Assistant Commonwealth’s Attorney
43 S Main Street
Winchester, KY 40391
prosecutor@johnsonandengel.com

Hon. William Clouse
Circuit Judge
101 W. Main Street
Richmond, KY 40475
krystinarnold@kycourts.net

On this, the 12th day of August, 2014.

__________________________
R. Tucker Richardson, III