Opinion
NO. 2019-CA-000942-MR
05-29-2020
LAWRENCE HALL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Steven J. Buck Frankfort, Kentucky BRIEF FOR APPELLEE: Daniel Cameron Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 11-CR-00857 OPINION
AFFIRMING
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BEFORE: DIXON, GOODWINE, AND TAYLOR, JUDGES. DIXON, JUDGE: Lawrence Hall appeals the order revoking his probation entered on May 14, 2019, by the Kenton Circuit Court. Following review of the record, briefs, and law, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Hall pled guilty to flagrant nonsupport on February 7, 2012. On March 27, 2012, the trial court granted Hall pretrial felony diversion for five years, or until the arrearage was paid in full. However, on April 24, 2014, the Commonwealth moved the trial court to revoke Hall's felony diversion because he had not made the required child support payments. Hall's total arrearage at that time was $43,427.88. A hearing was held on July 1, 2014, and the following day, the court returned Hall to diversion, once again, on the condition he pay child support and arrearage as ordered and pay the sum of $500 to the child support office within sixty days.
Kentucky Revised Statutes (KRS) 530.050, a Class D felony.
On July 31, 2015, the Commonwealth, again, moved the court to revoke Hall's felony diversion because he had not complied with the terms of his diversion. Hall's overall arrearage at that time had increased to $48,313.05. Another hearing was held on March 7, 2016, during which Hall stipulated that he had violated the terms of his diversion. A subsequent hearing was held on April 11, 2016, and on April 20, 2016, the court entered an order of probation and final judgment terminating the felony diversion program and sentencing Hall to "a maximum term of three (3) years, probated for a period of three (3) years from the date of Judgment, or until restitution is paid in full, whichever later occurs."
The orders were dated April 11, 2016.
On May 17, 2017, the Commonwealth moved the trial court to revoke Hall's probation because, yet again, he had not made the required child support payments. By this time, Hall's overall arrearage had accumulated to $52,737.23. On August 23, 2017, following a revocation hearing, the court entered an order finding that Hall had violated the terms of his probation, but reserved disposition until after a further hearing on December 4, 2017. At that time, the Commonwealth requested Hall's probation be extended one year. The court responded that, "[o]ne more year probably ain't going to make any difference. So, let's just leave the judgment as-is. He'll be on probation under the gun of probation revocation until that $50,000 is paid in full." By order entered December 5, 2017, the court reinstated Hall's probation "subject to the conditions set forth in prior Orders."
Subsequently, on January 2, 2019, a detainer was lodged against Hall for violation of his probation for illegal use of drugs. Hall had tested positive for oxycodone on December 11 and 18, 2018. He also admitted using Suboxone as recently as January 1, 2019. Thereafter, Hall was admitted to CTS-Russell's halfway house to complete a six-month substance abuse program but left the facility without permission and was subsequently discharged from the program. Additionally, Hall failed to inform his probation officer of his whereabouts, further violating the terms of his supervision.
The detainer was mistakenly dated January 2, 2018.
On March 5, 2019, the trial court issued a warrant for Hall's arrest, and he was taken into custody. Hall appeared before the court on April 15, 2019, and a probation revocation hearing was set for May 1, 2019. At the revocation hearing, Hall admitted he had violated probation by leaving the treatment program and failing to contact his probation officer. However, he contended the trial court no longer had jurisdiction to revoke his probation because it had expired in April 2019. Hall requested severe graduated sanctions in lieu of revocation. A status hearing was held on May 6, 2019, at which time the parties revisited the jurisdictional issue. On May 14, 2019, the trial court entered an order revoking Hall's probation and requiring him to serve his three-year prison sentence. This appeal followed.
STANDARD OF REVIEW
We review a probation revocation order for an abuse of discretion. Commonwealth v. Andrews, 448 S.W.3d 773, 780 (Ky. 2014). We will reverse only if we find "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) (citations omitted). We "will not hold a trial court to have abused its discretion unless its decision cannot be located within the range of permissible decisions allowed by a correct application of the facts to the law." Blankenship v. Commonwealth, 494 S.W.3d 506, 508 (Ky. App. 2015) (citing Miller v. Eldridge, 146 S.W.3d 909, 915 (Ky. 2004)).
KRS 439.3106 provides the criteria for revoking probation:
Supervised individuals shall be subject to:KRS 439.3106(1). The Andrews Court considered the applicability of the statute to revocation proceedings, and held:
(a) 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
(b)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.
We conclude that KRS 439.3106(1) requires trial courts 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 whether the probationer cannot be managed in the community before probation may be revoked.Andrews, 448 S.W.3d at 780.
In revoking Hall's probation, the trial court made specific written findings as to the essential elements of KRS 439.3106, and clearly followed Andrews and the statutory criteria of KRS 439.3106 in revoking Hall's probation.
EFFECT OF ARREST WARRANT
On appeal, Hall contends the trial court erred when it revoked his probation because the probationary period had expired. Hall argues the court acted without jurisdiction because the arrest warrant only extended the probationary period until Hall was both arrested and brought before the trial court. Hall asserts these two requirements were met on April 15, 2019. According to Hall, the trial court entered an order dated April 11, 2016, placing him on probation for three years, meaning his probation would expire on April 11, 2019. Hall concedes the trial court timely issued a warrant for his arrest; nevertheless, he contends that because he appeared before the court on April 15, 2019, and his probationary period was not extended at that time, his probation expired that day, prior to the revocation hearing and order.
In support of Hall's argument that his probation had expired, he cites Commonwealth v. Tapp, which held:
Pursuant to Kentucky Rule of Criminal Procedure (RCr) 2.06(1), a warrant has two objectives—arresting the defendant and bringing the defendant before the court. A warrant remains pending until both objectives have been met—the defendant has been arrested and the defendant has been brought before the court. Thus, the warrant in
this case remained pending until Tapp was brought before the court, which occurred on February 7, 2013. Once Tapp made that court appearance, his warrant was no longer pending, and at that point the trial court no longer had the authority to revoke Tapp's probation, notwithstanding the analysis and proposed procedure we set forth below.497 S.W.3d 239, 241 (Ky. 2016). However, the Tapp Court recognized difficulties with its holding. Therein, the Court noted KRS 533.020(4) buffers an unjust result by allowing the probationary period to be tolled when the probationer has a pending warrant.
As noted by the trial court, this interpretation of RCr 2.06(1) could, in a vacuum, lead to absurd results, because, as happened here, a warrant that is served near the end of the probationary period may well leave the court with no time to hold a revocation hearing. A number of our trial judges preside over multiple counties and work diligently to travel and cover dockets in those counties. Even with the best and most efficient time management on the part of the trial court, the aforementioned absurd result will inevitably occur.Id. (emphasis added). Nevertheless, Hall asserts that any extension of the probationary period and the court's jurisdiction to revoke required a duly entered court order. As discussed below, Hall claims no such order was entered.
However, KRS 533.020(4) provides a guard against such absurd results, stating, in pertinent part, that: "[T]he period of probation . . . shall be fixed by the court and at any time may be extended or shortened by duly entered court order."
This argument, however, ignores the text of the order which sentenced Hall to probation "for a period of three (3) years from the date of Judgment, or until restitution is paid in full, whichever later occurs." (Emphasis added.) Moreover, KRS 533.030(3) provides that a court shall order a defendant to make restitution to any victim who suffered monetary damage as a result of the defendant's criminal actions. KRS 532.033(8) also provides that a judge shall "[n]ot release the defendant from probation supervision until restitution has been paid in full and all other aspects of the probation order have been successfully completed."
It was clearly the intent of the trial court's order that Hall's probationary period extend beyond April 11, 2019, until such time as his child support obligations were paid in full. This was evident at the time the initial order was entered, as well as at subsequent hearings and in orders concerning revocation. The most specific example of this occurred on December 4, 2017, when the Commonwealth requested that the court extend Hall's probation by one year, and the court indicated the probation would not end until the arrearage, over $50,000 at that time, was paid in full. This was highly unlikely to occur before April 11, 2019, due to Hall's low income.
DULY ENTERED COURT ORDER
Hall contends the sticking point herein is whether the original probation order and its language "or until restitution is paid in full, whichever later occurs" qualified as the "duly entered court order" contemplated by KRS 533.020(4). Hall compares his case to Commonwealth v. Wright, 415 S.W.3d 606 (Ky. 2013). Therein, Wright was placed on probation and ordered to pay restitution as a condition thereof. Id. at 608. The Court held:
The final judgment contains two provisions essential to our review. First, the judgment provided, "That Defendant shall be placed on supervised probation for five (5) years." (emphasis in original). Second, the final judgment included as a condition of probation, "The Defendant [Wright] shall pay restitution in the amount of $4,500 at the rate of $160 per month, commencing on December 15, 2005, and the 1st of each month until paid in full." Simple arithmetic reveals that if Wright complied with the probation order, the restitution would be fully paid in thirty months, which would be May 2008.Id. (footnote omitted). Before his probation expired, Wright's probation officer filed a report indicating Wright had failed to fully pay the ordered restitution. Based on this report, the Commonwealth moved the court to revoke Wright's probation six days after the probationary period expired. The Commonwealth argued KRS 533.020(4) automatically extended Wright's probationary period if he failed to complete payment of the ordered restitution. The Wright Court held:
a determination of necessity is a prerequisite to any extension beyond five years. Because such a factual determination falls uniquely within the trial court's purview, it follows that the phrase anticipates that the determination of whether additional time beyond five years [sic] period is necessary must be addressed by the trial court as a factual finding either (1) when it initially fixes probation at the time of the final judgment, or (2) later, if it becomes necessary to extend the probationary period in order to assure that the defendant's restitution obligation is satisfied.Id. at 611, 614 (emphases added) (footnote omitted).
. . . .
We also note that occasions arise in which the trial court can easily anticipate, even before fixing the period of probation, that restitution cannot be fully paid within the five-year period provided by the statute. For example, if the amount of restitution is very great in comparison to the defendant's financial resources, it may be apparent at the time of sentencing that more than five years will be necessary to complete restitution. Upon such occasions, KRS 533.020(4) authorizes the trial court to make such a finding and to fix in the original judgment a probationary period reflecting that reality, even if it extends beyond five years. . . .
. . . .
As a final observation, our decision in this case in no way limits the ability of the trial courts or the Commonwealth to assure that a defendant's probation is extended for whatever time is necessary to secure complete payment of restitution.
Here, Hall's income was unpredictable but quite low in comparison to the amount of restitution owed, as the total overall arrearage was approaching $50,000 at the time he was initially placed on probation. This was an occasion, as contemplated in Wright, in which the trial court anticipated from the outset that restitution could not be fully paid within the three-year maximum period provided by statute. As previously stated, the language of the trial court's order sentencing Hall to probation "for a period of three (3) years from the date of Judgment, or until restitution is paid in full, whichever later occurs[,]" intended the probation to extend beyond April 11, 2019, until his child support obligations were paid in full. Thus, the trial court's extension of probation beyond the statutory limit to provide for restitution was built into the final judgment from its inception. "That procedure is entirely consistent with our analysis of the applicable statutes[.]" Wright, 415 S.W.3d at 613. No further extension of probation from the trial court's original order was required. Therefore, and by virtue of the original duly entered court order, Hall's probation did not expire on April 11, 2019, because Hall failed to complete his restitution by eliminating his child support arrearage. Thus, the trial court had the authority and jurisdiction to revoke Hall's probation.
Hall worked as a contractor for a roofer at some relevant times and at McDonald's at other relevant times. --------
CONCLUSION
For the foregoing reasons, the order entered by the Kenton Circuit Court is AFFIRMED.
ALL CONCUR. BRIEFS FOR APPELLANT: Steven J. Buck
Frankfort, Kentucky BRIEF FOR APPELLEE: Daniel Cameron
Attorney General of Kentucky Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky