Opinion
NO. 2015-CA-0001437-MR
12-22-2016
TASHA BRUMLEY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Susan Jackson Balliet Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Todd Henning Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WAYNE CIRCUIT COURT
HONORABLE VERNON MINIARD, JR., JUDGE
ACTION NOS. 14-CR-00049-001 & 14-CR-00056-001 OPINION
AFFIRMING
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BEFORE: DIXON, NICKELL and VANMETER, JUDGES. VANMETER, JUDGE: Before revoking probation, a circuit court must find (i) a supervised individual's failure to abide by conditions of supervision constitutes a significant risk to (a) prior victims of the supervised individual or (b) the community at large and (ii) and the individual cannot be appropriately managed in the community. Tasha Brumley appeals the Wayne Circuit Court's order revoking her probation, arguing that the court erred by failing to make the first required finding and ordering her to serve the remainder of her sentence in prison. We hold that the trial court did not err and considered the criteria of KRS 439.3106(1) before revoking Brumley's probation. We therefore affirm the trial court's order.
Kentucky Revised Statutes.
Facts and Procedural History
In July 2014, Brumley was indicted for first-degree unlawful transaction with a minor. Shortly thereafter, in August 2014, Brumley was indicted for third-degree burglary, second degree burglary, tampering with physical evidence, and theft by unlawful taking under $500. Brumley subsequently entered into plea agreement with the Commonwealth by which she agreed to plead guilty to all charges in exchange for a probated twenty-year sentence.
The underlying charge stemmed from an incident wherein Brumley assisted or caused a fifteen-year-old girl to be statutorily raped.
The charges stemmed from an incident wherein Brumley and a co-defendant entered the county attorney's office, started a fire, took a microwave and concealed evidence. --------
In December 2014, the trial court accepted Brumley's plea and the plea agreement, and sentenced Brumley to the agreed upon twenty-year sentence probated for five years. As conditions of her community supervision, the trial court ordered Brumley to refrain from the use of alcohol or drugs, pay fines, fees and restitution, report to the probation officer as directed, and notify the probation officer of any change of address. Brumley was provided a copy of the conditions of her probation and a case management plan.
Brumley was arrested for failure to pay fines in March 2015. While in custody, Brumley provided a urine sample that tested positive for methamphetamine. Brumley subsequently admitted to using methamphetamine while she was incarcerated on the current charge. As a result of the positive test, a social services clinician performed a substance abuse evaluation and referred Brumley to an out-patient drug program. Brumley was ordered to report to probation and parole as soon as she was released from custody.
In April 2015, Brumley was released from custody and she reported to probation and parole as directed. At the meeting, Brumley's probation officer ordered her to report to probation and parole every Wednesday. On May 12, 2015, Brumley failed to report to probation and parole. Two days later she called the parole office and claimed she had been out of town on the day she was scheduled to report. Her probation officer told her to report the next day, but Brumley again failed to show.
On May 28, 2015, after Brumley failed to attend her next two scheduled meetings and her scheduled appointment with an out-patient rehabilitation facility, Brumley's probation officer conducted a home visit at Brumley's last reported address. Brumley was not there, so the officer left a note on the front door directing Brumley to report to probation and parole on May 29, 2015. Brumley did not attend the May 29 meeting with her parole officer, nor did she attend her next scheduled meeting.
On June 22, 2015, the Commonwealth moved to revoke Brumley's probation based on her failures to report and failure to seek a substance abuse evaluation. A revocation hearing was held on July 7, 2015, at which Brumley's probation officer testified regarding Brumley's absenteeism. Brumley admitted to her failures to report and admitted she had a substance abuse problem. At the conclusion of the revocation hearing, the trial court ordered that Brumley remain in custody pending an evaluation to determine what kind of treatment she needed.
On July 20, 2015, the trial court entered an order directing Brumley be released and ordering her to immediately enroll in Adanta, an out-patient treatment program. Brumley was released on July 29, 2015, and the same day completed her initial assessment for the substance abuse outpatient program as ordered. She reported to Probation and Parole the next day.
At her meeting with Probation and Parole, Brumley informed her probation officer that she had no transportation, no money, and no clothes, except for those she was wearing. She also told him she had not eaten since being released from jail. Upon hearing of her privation, the officer took Brumley to the Hope Center where she received food and clothing.
Before departing Brumley's company, the officer reminded her that she was scheduled to begin classes at Adanta on August 3, 2015. He also reminded her of her next report date with Probation and Parole. Brumley, however, failed to report to Probation and Parole on her scheduled report date and was subsequently discharged from the Adanta program after five absences.
On August 25, 2015, the Commonwealth again moved to revoke Brumley's probation for her continuing failure to report and failure to complete treatment. Another probation hearing was held on September 1, 2015. At the hearing, Brumley testified that she had had a hard time trying to find a home. She also admitted to using drugs again. Brumley asked the trial court to allow her to participate in the Drug Court Program because she believed it would provide her more structure. The trial court, however, observed that because Brumley was a violent felony offender, she was not eligible to participate in the program. At the conclusion of the hearing, the trial court revoked Brumley's probation and reinstated her twenty-year prison sentence.
Brumley appeals the order revoking her probation, arguing that the trial court erred when it failed to make appropriate findings under KRS 439.3106(1). The Commonwealth argues that "an order of revocation [is not required to] contain any particular magic language in order to satisfy KRS 439.3106."
Standard of Review
We review a trial court's decision revoking a defendant's probation for an abuse of discretion. See Miller v. Commonwealth, 329 S.W.3d 358, 359-60 (Ky. App. 2010). Under our abuse of discretion standard of review, we will disturb a ruling only upon finding that "the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Analysis
Enacted in 2011 as part of the Public Safety and Offender Accountability Act, commonly referred to as HB 463, KRS 439.3106 provides:
Supervised individuals shall be subject to:
(1) Violation revocation proceedings and possible incarceration for failure to comply with the conditions of supervision when such failure constitutes a significant risk to prior victims of the supervised individual or the community at large, and cannot be appropriately managed in the community; or
(2) Sanctions other than revocation and incarceration as appropriate to the severity of the violation behavior, the risk of future criminal behavior by the offender, and the need for, and availability of, interventions which may assist the offender to remain compliant and crime-free in the community.
In Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014), our Supreme Court held that KRS 439.3106 requires a trial court, before revoking an individual's probation, to consider whether "a probationer's failure to abide by a condition of supervision constitutes a significant risk to prior victims or the community at large, and also [to address] whether the probationer cannot be managed within the community [.]" Id. at 780. The Court understood that "application of KRS 439.3106(1) allows the trial court to conclude with some certainty that the imposition of some other accountability measure would be fruitless[.]" Andrews, 448 S.W.3d at 779.
In reviewing an appeal from an order revoking a defendant's probation, appellate courts rely on the record in determining whether the trial court made the required considerations before revoking the defendant's probation. Accordingly, this Court held, in McClure v. Commonwealth, 457 S.W.3d 728 (Ky. App. 2015), that a trial court must make express oral or written findings on the record as to whether an individual is a danger to, and cannot be properly managed within, the community. After reviewing the oral ruling and written order in this case, we believe the trial court properly considered both elements of KRS 439.3016(1) and therefore we therefore affirm.
In its oral ruling following the probation revocation hearing, the trial court stated, "She totally refuses to follow any directions, any rules." The court did not see "any way she would comply with anything no matter what we did." In "long-term rehab she'd run away. It's her history. She would not stay no matter what we did. I see no alternative whatsoever than incarceration. It is the only way she can be off drugs." In other words, the trial court expressed its view that Brumley was a danger to the community by continuing to commit drug crimes. See McClure, 457 S.W.3d at 733 (stating that on appeal, a reviewing court looks "to both the written and video record for evidence of whether the trial court "specifically considered the criteria in KRS 439.3106[.]) (citing Andrews at 780). The trial court's subsequent written order revoking Brumley's probation stated as follows:
1. The Defendant is in violation of the terms and conditions of h[er] probation by: I. Absconding probation supervision. II. Failing to complete substance abuse treatment/counseling as directed. III. Failing to report to her probation officer as directed.
2. The Defendant is in need of correctional treatment that can be provided most effectively by the Defendant's commitment to a correctional institution.
3. To continue the Defendant's probation, in light of the violations, would unduly depreciate the seriousness of the Defendant's crime and the Defendant's continued violation of the terms of h[er] probation.
4. The Defendant has been before the Court before on prior probation violations. The Court granted her request for drug treatment in lieu of revocation. Part of her violation at the hearing was absconding supervision.
5. There are no alternatives less restrictive than revocation. The Defendant will likely abscond from any impatient treatment center and or any other less restrictive environment.
6. The Defendant cannot be managed in the community.
While the trial court's written order perhaps should have been more explicit, we hold that the record clearly reflects the trial court considered the factors set forth in KRS 439.3106(1) before revoking her probation. The Wayne Circuit Court's Order Revoking Probation is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Susan Jackson Balliet
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Todd Henning
Assistant Attorney General
Frankfort, Kentucky