Opinion
NO. 2013-CA-001355-MR NO. 2013-CA-001356-MR
02-19-2016
JASON TAIT HALL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Kate L. Benward Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General James C. Shackelford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEALS FROM LETCHER CIRCUIT COURT
HONORABLE SAMUEL T. WRIGHT, III, JUDGE
ACTION NOS. 12-CR-00054 AND 12-CR-00055 OPINION
VACATING AND REMANDING BEFORE: J. LAMBERT, MAZE, AND TAYLOR, JUDGES. MAZE, JUDGE: Jason Hall appeals from two orders of the Letcher Circuit Court revoking his probation. Hall argues that the trial court erroneously revoked his probation without making findings required under KRS 439.3106. For the reasons we explain infra, we vacate the order revoking probation and remand the matter to the trial court for further findings consistent with KRS 439.3106, the Supreme Court's decision in Commonwealth v. Andrews, infra, and this Court's ruling in McClure v. Commonwealth, infra.
Kentucky Revised Statutes.
Hall initially argued that the trial court erred in failing to grant him 254 days of jail time credit on his sentences due to time he spent in home incarceration. However, to his credit, he now concedes that 2011 amendments to KRS 532.120 divested trial courts of the responsibility for granting jail time credit. Accordingly, we shall address the matter no further.
On February 21, 2013, the trial court entered a Judgment and Sentence on Plea of Guilty in each of two cases arising from events which occurred in March 2012. Hall pleaded guilty to Assault in the second degree and Wanton Endangerment in the first degree, amended down from a charge of first-degree sodomy. The trial court imposed concurrent sentences of five-years' imprisonment and probated them for five years. Hall's probation was conditioned upon his lawful behavior, submission to drug screens, completion of drug rehabilitation, and payment of restitution.
Thirty-one days later, Hall was arrested on a charge of fourth-degree Assault. After his arrest, Hall exhibited violent behavior and admitted to officers that he was "coming down" from recent use of heroin, bath salts, and opiates. The next day, Hall tested positive for Schedule IV and Schedule II controlled substances. Hall's behavior resulted in officials deeming him "a danger to himself and others[.]" The Commonwealth filed motions to revoke Hall's probation in both cases. In addition to the allegations of criminal behavior and drug abuse, the Commonwealth's motions alleged that Hall failed to complete drug rehabilitation or make restitution in compliance with the conditions of his probation.
The trial court conducted a revocation hearing on May 6, 2013. As a result of this hearing, the trial court revoked Hall's probation in each case. Consistent with its verbal findings at the hearing, the trial court's June 20th, 2013 orders found that Hall had admitted to several of the allegations in the Commonwealth's motions to revoke and that he had subsequently been found guilty of the new charges mentioned in those motions. Hall appealed from these orders, arguing that the trial court failed to enter the requisite statutory findings. This Court held his appeal in abeyance pending the Supreme Court's seemingly imminent decision in a similar case, Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014). We now take up Hall's appeal in light of Andrews.
After the 2011 enactment of KRS 439.3106, confusion reigned as to whether a trial court's findings must strictly adhere to the factors listed in that statute. The Supreme Court's decision in Andrews greatly resolved the question. It held that before a trial court revokes a defendant's probation, the court must first consider, and enter express findings regarding "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 . . . ." 448 S.W.3d at 776. A trial court may make these findings in either the video or written record; but it must make them. Id. at 780; see also McClure v. Commonwealth, 457 S.W.3d 728, 731 (Ky. App. 2015) (applying Andrews and generally reiterating that written or verbal findings of each factor contained in KRS 439.3106 were mandatory).
The trial court in this case was not in possession of the merciful guidance Andrews provided. Accordingly, we vacate and remand the question of revocation for express findings as to the factors provided in KRS 439.3106, consistent with Andrews and McClure.
To its credit, the Commonwealth concedes that remand is necessary to effect compliance with KRS 439.3106. --------
ALL CONCUR. BRIEF FOR APPELLANT: Kate L. Benward
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky