Opinion
NO. 2017-CA-001036-MR
06-08-2018
SHELLY RENEE POE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Shannon Dupree Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jesse L. Robbins Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM POWELL CIRCUIT COURT
HONORABLE FRANK A. FLETCHER, JUDGE
ACTION NOS. 14-CR-00062, 14-CR-00136 & 14-CR-00173 OPINION
AFFIRMING
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BEFORE: J. LAMBERT, NICKELL, AND TAYLOR, JUDGES. NICKELL, JUDGE: Shelly Renee Poe appeals from an order entered by the Powell Circuit Court revoking her probation and imposing a sentence of five years for trafficking in a controlled substance and fifteen years on each of two counts of manufacturing methamphetamine. The sentences were ordered to run concurrently for a total of fifteen years. Poe alleges the trial court abused its discretion in ordering revocation on May 17, 2017, because the Commonwealth did not prove she could not be appropriately managed in the community under KRS 439.3106(1). More specifically, she alleges revocation should not have been ordered until she had been allowed to attend drug treatment and participate in drug court. Following review of the record, the briefs and the law, we affirm.
Kentucky Revised Statutes.
On March 4, 2015, Poe pled guilty to drug trafficking and manufacturing methamphetamine. Consistent with her plea, she was sentenced to a term of fifteen years, probated for five years after serving an additional sixty days and being evaluated for drug addiction treatment by Probation and Parole.
Five months into her probation, Poe tested positive for methamphetamine and OxyContin. She admitted using both drugs on August 7, 2015. After a hearing, probation was partially revoked by written order of the Powell Circuit Court. She was to remain in jail until a bed in a rehabilitation facility became available. She was accepted for admission into Liberty Place and released to travel to the facility, but never arrived and was arrested. Following a hearing on November 18, 2015, Poe's probation was revoked and a sentence of fifteen years was imposed.
Poe moved for and was denied shock probation. On April 18, 2016, she moved for shock probation again, this time stating she was willing to attend "long-term treatment as a condition" of probation and would "comply with any probation conditions that the Court deems appropriate." Shock probation was granted.
A year later, Poe violated probation again by being present in Powell County, committing a new felony drug offense—trafficking and being a persistent felony offender—and being intoxicated in public. Following a revocation hearing, at which the trial court considered Poe's prior sanctions and new felony charges, probation was revoked by written order entered June 7, 2017. That order stated in relevant part:
Poe was permitted in Powell County for work purposes only.
The Court further FINDS pursuant to KRS 439.3106 that Defendant's failure to comply with the conditions of supervision constitutes a significant risk to the community at large which cannot be appropriately managed in the community; and the Defendant further is a risk of danger to himself or others in the community at large. The Court has attempted least restrictive alternatives, namely: Re-Hab, shock (sic) Partial Revocation. The Court has considered the severity of the violation, namely: Left Re-Hab voluntarily.Poe now challenges the latest revocation order because she never participated in drug court or drug treatment—a result she claims directly contradicts the legislature's adoption of a new sentencing policy of "improving outcomes for those offenders who are sentenced." Commonwealth v. Andrews, 448 S.W.3d 773, 776 (Ky. 2014) (quoting KRS 532.007(1)).
The Court has considered the risk of future criminal behavior and having considered the criminal conduct of the defendant in the past and also considering the risk to the victim in the herein case, as well as, others in the community.
In 2011, the General Assembly
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." KRS 532.007(1). To that end, HB 463 created several new statutes, including various statutes governing probation and conditional discharge. Among the newly enacted probation and parole statutes was KRS 439.3106, which provides as follows:
Id. at 776. Andrews confirms the power to revoke probation rests with the trial court alone. KRS 533.010 et seq. As part of the trial court's discretion to impose conditions on probation consistent with KRS 533.030, it may modify or enlarge those conditions and may revoke probation when a condition of release is violated or a new offense is committed.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.
To comply with KRS 439.3106, prior to revoking probation, a trial court must make two additional findings:
the probationer's failure to comply with the terms of probation constitutes "a significant risk to [his] prior victims . . . or the community at large," and that the probationer "cannot be appropriately managed in the community."Andrews, 448 S.W.3d at 777 (quoting KRS 439.3106(1)). By requiring these two findings, "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 (citation omitted). Minor violations are:
1. Missing scheduled report day;501 KAR 6:250. They may be resolved by a probation officer via informal case management strategy.
2. Traffic offense without arrest;
3. Failure to seek employment;
4. Failure to enroll or maintain school attendance; and
5. Failure to notify officer prior to change of address.
Kentucky Administrative Rules. --------
We review a revocation order for an abuse of discretion. Commonwealth v. Lopez, 292 S.W.3d 878 (Ky. 2009). 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). 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)).
On June 7, 2017, Poe stood before the trial court with pending motions to revoke on three cases. The Commonwealth stated it was seeking full revocation in each case. The trial court spent considerable time reviewing Poe's record and conversing with her in open court.
Defense counsel stated Poe had been offered drug rehabilitation once at Liberty Place, but had not submitted herself to treatment for personal reasons. In the midst of defense counsel's argument, Poe stated Liberty Place was "too close to home, it's in my own backyard, and when stuff gets tough, I get going." She had previously told her probation officer she objected to Liberty Place because she knows all the drug dealers there and had other underlying issues with the facility which at the revocation hearing she stated, "doesn't really matter." Defense counsel strongly urged the trial court to consider sending Poe to drug court before ordering revocation and even offered to find another long-term rehabilitation facility with an available bed for Poe.
The trial court found Poe's explanation about not going to Liberty Place to be nonsensical, noting on the one hand she said the facility was in her own "backyard" and "too close to home," but then she had no qualms about coming to Powell County—where she was not supposed to be—and incurring new charges. The trial court told Poe she could not have it both ways, likening her situation to a child enrolled in public school. A child cannot quit school just because he does not like teachers and classmates. The court also told Poe she did not get to select the facility where she would be placed.
As the trial court continued reviewing the record, Poe acknowledged having credit for time served of about twenty-eight months on her fifteen-year sentence, making her parole-eligible in a matter of months. Poe stated, "been doin' this for a while now." The trial court said it had been patient with Poe and had given her chances as required by law—statements with which Poe agreed. Defense counsel reiterated Poe had not really had a chance to prove herself in a drug treatment program and renewed the request for drug court. Ultimately, the trial court told Poe it was going to revoke her probation, but she could file for shock probation in six months. The trial court then stated, "I'm sorry, but I feel like we've given you every opportunity that we could." Taking an additional look at the record, the trial court noted it had ordered a partial revocation on October 7, 2015.
The trial court considered a variety of factors, including the two new factors mentioned in KRS 439.3106(1). The purpose of the 2011 legislation is to avoid incarcerating probationers for minor violations. Andrews, 448 S.W.3d at 779. Poe's missteps do not qualify as "minor violations." She did not fail to report, commit a traffic offense, fail to look for a job, miss school or fail to report a change of address. Her missteps were not reporting to Liberty Place as ordered; incurring significant new drug charges; and being in Powell County without permission. Chances given to her included rehabilitation, shock probation and partial probation revocation.
Under McClure v. Commonwealth, 457 S.W.3d 728 (Ky. App. 2015), a trial court must make findings of fact concerning whether a party poses a risk to the community and is not manageable in the community pursuant to KRS 439.3106(1). We, as an appellate court, then evaluate the sufficiency of the proof and whether the trial court abused its discretion. Id. at 734. Poe's probation revocation order contained the required findings and is supported by the recorded revocation hearing.
Just five months into her probation in 2015, Poe admitted testing positive for methamphetamine and OxyContin. On August 30, 2016, she was arrested for public intoxication. Poe was ordered not to be in Powell County while on probation. On August 30, 2016, and again on April 10, 2017, she was arrested in Powell County. These facts indicate both a risk of danger to the community and an inability to manage herself in the community. The court need not wait until a probationer "commit[s] some heinous act before he can be found to be a risk to someone other than himself." Id. at 733.
Defense counsel specifically requested drug court and drug treatment at a long-term facility. The trial court considered both requests and ultimately rejected them. Mere availability of an alternative to revocation does not require application of the alternative. "KRS 439.3106 permits, but does not require, a trial court to employ lesser sanctions[.]" Id. at 732.
In making the required findings under KRS 439.3106(1), the trial court concluded, "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." Andrews, 448 S.W.3d at 779-80. "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." McClure, 457 S.W.3d at 732.
For the foregoing reasons, the probation revocation order entered by the Powell Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Shannon Dupree
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Jesse L. Robbins
Assistant Attorney General
Frankfort, Kentucky