Opinion
NO. 2016-CA-000617-MR
06-30-2017
ANDREW LOTTLEE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Brandon Neil Jewell Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE KELLY MARK EASTON, JUDGE
ACTION NO. 11-CR-00412 OPINION
AFFIRMING
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BEFORE: ACREE, DIXON, AND JONES, JUDGES. DIXON, JUDGE: Andrew Lottlee brings this appeal from the Hardin Circuit Court's order revoking his probation. Lottlee argues the circuit court abused its discretion when it revoked his probation after he received additional criminal charges. We affirm because the circuit court did not abuse its discretion when it determined that Lottlee is a significant risk to prior victims or the community at large and that he cannot be managed in the community._
On July 3, 2012, Lottlee pleaded guilty to first-degree trafficking in a controlled substance, tampering with physical evidence, driving with a suspended operator's license, and first-offense driving under the influence (DUI). He was sentenced to seven years' imprisonment for his trafficking charge and three years' imprisonment for his tampering charge, to run concurrently for a total of seven years' imprisonment. The trial court ordered Lottlee to serve his three-year sentence in prison and probated the remainder of his sentence. Lottlee served three years and was released on probation. Following several new arrests, the Commonwealth filed a motion to revoke Lottlee's probation. The Hardin Circuit Court held a hearing on the matter.
During that hearing, Jaclynne Keen, Lottlee's Probation and Parole Officer, testified she believed Lottlee had violated the conditions of his probation. She read the contents of two uniform citations written by Deputy Ethan Whitlock of the Hardin County Sheriff's Office. She related that on December 7, 2015, after Deputy Whitlock pulled Lottlee over for changing lanes without signaling, he noticed that Lottlee's vehicle had a strong odor of marijuana and that Lottlee had glassy, bloodshot eyes. Deputy Whitlock discovered cigarillos, two white pills labeled "IBU800[,]" and two blue pills labeled "RX 693" in the automobile. He also observed a nine-year-old child inside the vehicle. Lottlee was charged with second-degree wanton endangerment, second-offense DUI with an aggravator, failure to signal, first-offense failure of a non-owner operator to maintain required insurance, and illegal possession of a legend drug.
Cigarillos may be used to smoke marijuana.
Lottlee presented evidence at the revocation hearing that laboratory testing revealed the pills labeled "RX 693" were an antibiotic. On appeal, he states that the pills labeled "IBU800" were Ibuprofen. Because the trial court did not make a finding as to these pills, we will not consider them in our analysis.
Officer Keen testified Lottlee also violated his probation because he failed to report the aforementioned arrest within seventy-two hours. Lottlee eventually reported the arrest on December 21, 2015, the next time he met with his probation officer. On that day, he also admitted that he had lost his job over one month prior to his arrest and had subsequently used marijuana.
The Commonwealth's next witness was Detective Matthew Kennington, who recounted the circumstances surrounding Lottlee's new felony arrest. On November 26, 2015, Cory Kenney, a bouncer, was approached by a female patron of the Mercury Ballroom. The patron informed Kenney that Lottlee was being aggressive with her and her friends. Kenney then told Lottlee, "If you don't calm down we're going to have to ask you to leave," and walked away. Another female patron approached Kenney and stated that Lottlee had been aggressive with her. Kenney asked Lottlee to leave, and Lottlee punched him in the face with a closed fist. Lottlee then exited the building.
Kenney notified two police officers working at the Mercury Ballroom, and the officers found Lottlee in a parking garage based on the description Kenney had provided. Kenney entered the parking garage and identified Lottlee. Lottlee had injuries to his hand, giving the appearance that he had "hit something or punched something." Lottlee was also bleeding from his face. Lottlee denied having any knowledge of the incident to the officers. When questioned as to how he had received the injuries, Lottlee stated, "Security didn't cause these injuries." He admitted to having previously been inside the Mercury Ballroom.
The officers permitted Lottlee to leave, believing the incident to be a misdemeanor assault. While doing a follow-up, however, Detective Kennington discovered Kenney sustained a broken upper left jaw and "displacement of teeth." At the time of the hearing, Kenney had paid $1,471 in medical expenses and still had an estimated $3,792 in expenses remaining.
At the conclusion of the revocation hearing, the trial court found that Lottlee violated his probation when he used marijuana, engaged in impaired driving, and failed to timely report his arrest, and went to a bar where he committed an assault in which he broke the victim's jaw and teeth. Under Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014), the trial court made findings that the aforementioned violations constituted a significant risk to Lottlee's prior victims or the community at large and that Lottlee could not be appropriately managed in the community, finding that he repeatedly drove while impaired, used marijuana, and failed to report his new DUI arrest. The court also noted that a child had been found in his vehicle during one of Lottlee's DUI arrests. The court found by a preponderance of the evidence that Lottlee committed an assault at The Mercury Ballroom, breaking the victim's jaw and teeth, and concluded that "[b]y repeated actions [Lottlee] has shown he will not comply with community (probation) terms." The court revoked Lottlee's probation at the conclusion of the hearing, requiring Lottlee to serve the remainder of his sentence of seven years' imprisonment. This appeal follows.
The court declined to specifically make a finding on Lottlee's DUI charge.
On appeal, Lottlee argues that the trial court abused its discretion when it determined he is a significant risk to prior victims or the community at large and cannot be managed in the community. Lottlee has also argued his probation officer should have testified as to each of the factors under 501 KAR 6:250 Section 2(1), concerning graduated sanctions as a condition of probation.
Kentucky Administrative Regulations.
The Supreme Court of Kentucky has explained 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. By requiring the trial court to make such a determination, "the legislature furthers the objectives of the graduated sanctions schema to ensure that probationers are not being incarcerated for minor probation violations." Id. at 779. "A decision to revoke probation is reviewed for an abuse of discretion." Id. at 780 (citing Commonwealth v. Lopez, 292 S.W.3d 878 (Ky. 2009)).
Kentucky Revised Statutes. --------
The Supreme Court of Kentucky has further explained that "[a]n individual's probation may be revoked any time before the expiration of the probationary period when the trial court is satisfied by a preponderance of the evidence presented in a revocation hearing that the probationer violated a condition of probation." Barker v. Commonwealth, 379 S.W.3d 116, 123 (Ky. 2012). Additionally, "[a]lthough new charges may form the basis for revocation proceedings, a conviction on those charges is not necessary in order to revoke probation." Id.
The trial court did not abuse its discretion when it determined that Lottlee is a significant risk to prior victims or the community at large and that he cannot be managed in the community. First, the evidence presented at Lottlee's revocation hearing was sufficient to find Lottlee committed an assault by a preponderance of the evidence. The testimony at Lottlee's revocation hearing reflected that the officers apprehended Lottlee shortly after he left the Mercury Ballroom and that Kenney identified Lottlee as the person who struck him. Furthermore, the officers stated Lottlee had injuries on his hand consistent with having "hit something or punched something." Finally, Detective Kennington testified that Kenney received a broken upper jaw and that two of his teeth were displaced as a result of the incident. Because his new felony charge involved violence, the trial court did not abuse its discretion in determining that Lottlee was a significant risk to the community. See McVey v. Commonwealth, 467 S.W.3d 259, 262 (Ky. App. 2015) (the evidence was sufficient to conclude the appellant was a significant risk to the community where he had possession of three rifles in violation of his pretrial diversion agreement and was involved in drug trafficking).
Additionally, the trial court noted Lottlee's admission to smoking marijuana and his failure to report his new DUI arrest within seventy-two hours. Together, Lottlee's multiple violations demonstrate he is not willing to comply with the terms of his probation and therefore cannot be appropriately managed in the community. See Andrews, 448 S.W.3d at 781 ("Andrews's entry into a treatment program only after testing positive for methamphetamine, coupled with his initial refusal to accept treatment, support the trial court's conclusion that Andrews could not be properly managed in the community."). Under KRS 439.3106(1), the circuit court's findings were not an abuse of discretion.
Lottlee has also argued that his probation officer should have testified as to each of the factors under 501 KAR 6:250 Section 2(1). 501 KAR 6:250 Section 2(1) provides that "[i]f the sentencing court orders the offender to be subject to graduated sanctions as part of the conditions of his probation . . . [t]he officer shall consider[]" the following factors: "(a) Offender's assessed risk and needs level; (b) Offender's adjustment on supervision; (c) Severity of the current violation; (d) Seriousness of the offender's previous criminal record; (e) Number and severity of any previous supervision violations; and (f) Extent to which graduated sanctions were imposed for previous violations." There is no requirement for a probation officer to testify that each factor is met; a probation officer is only required to consider them in deciding whether to impose graduated sanctions. See Andrews, 448 S.W.3d at 778.
In sum, we hold Lottlee has failed to demonstrate that the circuit court abused its discretion when it revoked his probation after he received additional criminal charges.
For the foregoing reasons, the order of the Hardin Circuit Court revoking Lottlee's probation is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Brandon Neil Jewell
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky