Opinion
NO. 2014-CA-001437-MR
02-12-2016
JEFFREY LAUDERMILT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: John Gerhart Landon Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JOHNSON CIRCUIT COURT HONORABLE JOHN DAVID PRESTON, JUDGE
ACTION NO. 13-CR-00137 OPINION
REVERSING AND REMANDING BEFORE: COMBS, DIXON AND D. LAMBERT, JUDGES. DIXON, JUDGE: Appellant, Jeffrey Laudermilt, appeals from an order of the Johnson Circuit Court revoking his probation and sentencing him to twenty-years' imprisonment. Having reviewed the record and relevant law, we conclude that the trial court's order revoking Appellant's probation lacked essential findings. Therefore, we must remand.
In September 2013, Appellant was indicted on one count of first-degree manufacturing methamphetamine and for being a second-degree persistent felony offender. Pursuant to a plea agreement, Appellant pled guilty to an amended charge of attempt to manufacture methamphetamine in exchange for a ten-year sentence, enhanced to twenty-years' imprisonment by virtue of the PFO charge. The trial court probated the sentence for a period of five years and ordered one year of home incarceration. At the July 2, 2014, final sentencing hearing, the trial court warned Appellant that it would not impose graduated sanctions in the event he violated his probation conditions.
On July 15, 2014, less than two weeks after his sentencing, the Commonwealth filed a motion to revoke Appellant's probation on the grounds that he had violated the terms of his home incarceration by appearing on two separate occasions at a home of Stanley and Cindy Conley, where his estranged wife, Christian Price, was residing. An affidavit of Kay Grevious, the Community Corrections Program Supervisor, stated that on July 8 and 14 Appellant was authorized to attend domestic violence counseling sessions but he instead attempted to visit Ms. Price at the unauthorized location.
Subsequently, during the August 1, 2014, revocation hearing, Appellant stipulated to the probation violations but requested graduated sanctions, in particular GPS monitoring, in accordance with the provisions of KRS 439.3106(1). The Commonwealth urged revocation and presented evidence that when Appellant was questioned following his first violation, he lied about his whereabouts. At that time, he was advised that any unauthorized outing was a violation of the terms of his home incarceration. Appellant nevertheless chose to again visit his estranged wife the following day. Despite the trial court's earlier pronouncement that it would not consider graduated sanctions, it evaluated during the hearing other alternatives to revocation. Nevertheless, in light of Appellant's lengthy prior criminal record, the fact that he violated his home incarceration within one week of sentencing, as well as the seriousness of his underlying offense, the trial court granted the Commonwealth's motion to revoke his probation and sentenced him to twenty-years' imprisonment. Appellant now appeals to this Court as a matter of right.
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).
On appeal, Appellant argues that KRS 439.3106 requires trial courts to consider the imposition of less restrictive forms of punishment for probation violations and the trial court herein abused its discretion when it announced during the sentencing hearing that it would not do so if Appellant violated the terms of his probation. Further, Appellant contends that even though the record indicates that the trial court did consider other sanctions during the revocation hearing, such is for naught since it ultimately did exactly what it warned Appellant it would do, namely send him to prison for twenty years for a minor probation violation.
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), the Kentucky Supreme Court first analyzed KRS 439.3106 and unequivocally held that "KRS 439.3106 must be considered [by the trial court] before probation may be revoked." Id. at 778-79. The Court recognized that House Bill 463, and in particular KRS 439.3106, altered the legal landscape related to probation revocation in that prior to HB 463, a trial court could revoke probation at any time "prior to the expiration or termination of the period of probation" if the probationer violated a condition of probation. Id. at 777 (quoting KRS 533.020(1). A trial court's decision to revoke probation would not amount to an abuse of discretion if there was evidence "to support at least one probation violation." Lucas v. Commonwealth, 258 S.W.3d 806, 807-08 (Ky. App. 2008). However, "[w]ith the enactment of HB 463, the legislature adopted a sentencing policy intended to 'maintain public safety and hold offenders accountable while reducing recidivism and criminal behavior and improving outcomes for those offenders who are sentenced.' " Andrews, 448 S.W.3d at 776 (quoting KRS 532.007(1)). Part of this policy included the use of graduated sanctions and satisfaction of conditions precedent to revoking probation. Id. at 776-77. The Court noted:
Under the 2011 statutory reform, when a probationer appears before the trial court because he has failed to comply with the terms of probation and the probation officer has determined that graduated sanctions are inappropriate, KRS 439.3106 must be considered before probation may be revoked. If the court's order of probation was silent as to the imposition of graduated sanctions, the statute nevertheless applies upon consideration of probation revocation. By requiring trial courts to determine that a probation is a danger to prior victims or the community at large and that he/she cannot be appropriately managed in the community before revoking probation, the legislature furthers the objectives of the graduated sanctions scheme to ensure that probationers are not being incarcerated for minor probation violations.Andrews, 448 S.W.3d at 778-79.
Importantly, however, the Andrews Court further stated that "[w]hile HB 463 reflects a new emphasis in imposing and managing probation, it does not upend the trial court's discretion in matters of probation revocation, provided that discretion is exercised consistent with statutory criteria." Id. at 780. In a subsequent opinion by a panel of this Court, McClure v. Commonwealth, 457 S.W.3d 728, 731-32 (Ky. App. 2015), we explained,
In Andrews, the Supreme Court outlined the "schema" it believed the General Assembly intended to construct with HB 463 and KRS 439.3106, et seq. The Court surmised 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, as the probationer both poses a risk and is not manageable in the community." In other words, the General Assembly intended the task of considering and making findings regarding the two factors of KRS 439.3106(1) to serve as the analytical precursor to a trial court's ultimate decision: whether revocation or a lesser sanction is appropriate.
Within this "schema," as the Supreme Court called it, KRS 439.3106 permits, but does not require, a trial court to employ lesser sanctions; and, as even McClure concedes on appeal, incarceration remains a possibility. The elective language of the statute as a whole creates an alternative employed and imposed at the discretion of the trial court—discretion the Supreme Court insisted the trial court retained in light of the new statute. Andrews at 780. Nothing in the statute or in the Supreme Court's interpretation of it requires the trial court to impose lesser sanctions prior to revoking probation.
Although the trial court herein was not required to impose lesser sanctions prior to revoking Appellant's probation, the trial court was required to make the statutory findings that he was a significant risk to, and unmanageable within, his community. Thus, as the Court did in Andrews, we must look to both the written and video record for evidence whether the trial court "specifically considered the criteria in KRS 439.3106[.]" Andrews at 780.
During the revocation hearing, the Commonwealth alluded to the fact that Appellant posed a risk to his estranged wife based on the prior incident of domestic violence. Defense counsel, however, submitted an affidavit from Ms. Price stating that Appellant had not been abusive or threatening during his unauthorized July visits. Furthermore, the Commonwealth argued that it did not want to be responsible for monitoring Appellant under the GPS system since he had so quickly violated the home incarceration terms after sentencing. The Commonwealth's position could certainly be construed as meaning that Appellant could not be managed within the community.
Whether or not the record supports a finding that the requirements of KRS 439.3106(1) were met, it is clear from the video that the trial court did not consider either factor in reaching its decision to revoke Appellant's probation. Rather, the trial court focused on the fact that Appellant willingly entered into a "risky" plea agreement, with a significant potential prison term in the event of revocation, yet violated the terms of his probation within two weeks of sentencing. The trial court reviewed Appellant's lengthy criminal record and concluded on the record that it was of the opinion that nothing other than incarceration would have any effect on Appellant. Nevertheless, the record is devoid of any express oral or written findings that Appellant posed a risk to the community and that he could not be managed therein. Under the analysis set forth in Andrews, the trial court's decision to revoke Appellant's probation, in the absence of these requisite findings, constituted an abuse of discretion. See McClure, 457 S.W.3d at 733.
On remand, the trial court shall enter express findings as to both elements of KRS 439.3106(1). In accordance with Andrews, once the trial court has fully considered and made findings as to these elements, it should determine whether revocation or a lesser sanction is most appropriate, thus serving both the spirit of, and the intent behind, KRS 439.3106. Id.
The order of the Johnson Circuit Court is reversed and this matter is remanded for entry of further findings in accordance with this opinion and with KRS 439.3106.
ALL CONCUR. BRIEFS FOR APPELLANT: John Gerhart Landon
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky