Opinion
NO. 2018-CA-001161-MR
07-26-2019
CHRISTOPHER STAMBAUGH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Julia K. Pearson Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Joseph A. Newberg, II Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE JOHN DAVID PRESTON, JUDGE
ACTION NO. 13-CR-00126 OPINION
AFFIRMING
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BEFORE: GOODWINE, LAMBERT, AND MAZE, JUDGES. GOODWINE, JUDGE: Christopher Stambaugh ("Stambaugh") appeals the Johnson Circuit Court's July 9, 2018 order revoking his probation. Stambaugh alleges the trial court erred by (1) revoking his probation; (2) allowing hearsay testimony; (3) not following KRS 439.3106(1); and (4) using a form order. After careful review, we affirm.
Kentucky Revised Statute.
Stambaugh has a lengthy criminal history related to his drug addiction. On April 8, 2014, the trial court entered a judgment and sentence on Stambaugh's plea of guilty to charges of fleeing and evading in the first degree and wanton endangerment in the first degree. He was sentenced to ten years probated for five years supervised, plus 180 days of home incarceration and continued compliance with the offender re-entry program. Shortly after sentencing, the Commonwealth moved to revoke Stambaugh's probation because he violated several Community Corrections' regulations, including testing positive for Suboxone.
Stambaugh committed the offenses on July 13, 2013. He led police on a high-speed chase driving on the wrong side of the highway reaching speeds of over one hundred miles per hour.
The trial court held a revocation hearing on December 5, 2014, and heard testimony from two witnesses for the Commonwealth, including Stambaugh's probation officer. Stambaugh testified and admitted to violating the program's requirements and having a long-standing drug addiction. Following testimony, the trial court orally noted that previous revocation motions had been filed against Stambaugh and previous sanctions against him were not successful. The trial court entered a written order of revocation on December 29, 2014, remanding Stambaugh to the Department of Corrections.
Stambaugh appealed the probation revocation alleging the trial court erred in revoking his probation by failing to make express findings regarding whether his failure to follow the terms of his supervision constituted a significant risk to prior victims, or the community, and whether he could be appropriately managed in the community as required under KRS 439.3106(1).
We reversed and remanded the judgment of the Johnson Circuit Court, finding Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014) controlling. On remand, the trial court vacated its order revoking Stambaugh's probation and he returned to supervised probation.
Stambaugh v. Commonwealth, No. 2015-CA-000002-MR, 2015 WL 9264591, *2, n.2 (Ky. App. Dec. 18, 2015) ("In fairness to the Johnson Circuit Court, the Andrews decision was rendered on December 18, 2014, after the December 5, 2014 revocation hearing and only eleven days before the court entered its order revoking probation.").
Unfortunately, Stambaugh was unable to abide by the law or the terms of his probation due to his substance abuse. Several times in 2016 and 2017, Stambaugh admitted to his probation officer he used methamphetamine, Suboxone, marijuana, and alcohol. Additionally, Stambaugh was terminated from intensive outpatient ("IOP") treatment for repeated absences. He also failed to report to his probation officer on December 4, 2017, and following an unsuccessful home visit, Probation and Parole deemed him to have absconded supervision. The Commonwealth again moved to revoke his probation.
The trial court held a revocation hearing on July 6, 2018. Officer Dallas Ward testified for the Commonwealth enumerating multiple violations, including (1) several sanctions for substance abuse; (2) failing to complete IOP; (3) absconding from supervision; (4) re-offending while on the run; and (5) failing to complete a 180-day, in-patient rehabilitation program—leaving after ten days. Stambaugh testified admitting he failed to complete treatment and that he re-offended while on the run. He asked the trial court for further sanctions rather than revocation.
At the hearing's conclusion, the trial court summarized the testimony, enumerated Stambaugh's multiple violations and the many community service programs he failed. The trial court further stated as follows:
[Stambaugh] has a long-standing drug addiction and substance abuse problem that has not been addressed to the point where he is anything other than a risk to the community. . . . The court finds that his drug addiction is such that it constitutes a risk to his own safety.(VR 07/06/18, 11:49:13). Stambaugh did not object to Officer Ward's testimony nor the trial court's oral findings during the revocation hearing. The trial court signed a form order prepared by the Commonwealth revoking Stambaugh's probation. It was entered July 9, 2018. The order did not contain specific findings. Stambaugh did not object following entry of the order. This appeal followed.
The court also finds that Probation and Parole has done everything they possibly can do to accommodate the defendant and supervise him in the community, but those efforts have been unavailing and that his addiction and other issues such as driving without a license are such that the community is at risk. Therefore, the court revokes his probation.
Generally, we review a "decision to revoke probation . . . for an abuse of discretion." Andrews, 448 S.W.3d at 780. "The test for abuse of discretion is whether 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).
Here, however, Stambaugh failed to properly preserve the alleged errors for review. Though his brief refers to "Preservation" in the index, page 4 of his brief makes no "reference to the record showing whether the issue was properly preserved for review and, if so, in what manner." CR 76.12(4)(c)(v). His references to the record are to the trial court's statements. "It goes without saying that errors to be considered for appellate review must be precisely preserved and identified in the lower court." See Koester v. Koester, 569 S.W.3d 412 (Ky. App. 2019) (citations omitted).
Kentucky Rule of Civil Procedure.
Stambaugh did not request palpable review. CR 61.02 states:
A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal , even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.(Emphasis added.) See also RCr 10.26. Under RCr 10.26, an appellate court may consider an unpreserved error if it is a "palpable error" which affects Stambaugh's "substantial rights" and resulted in "manifest injustice." Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). To be palpable, the error must have (1) been clear or plain under existing law, (2) been more likely than ordinary error to have affected the judgment, and (3) so seriously affected the fairness, integrity or public reputation of the proceeding as to be "shocking or jurisprudentially intolerable." Id. at 4.
Kentucky Rules of Criminal Procedure. --------
KRS 439.3106(1) provides the criteria for revoking probation:
Supervised individuals shall be subject to:
(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.Andrews considered the applicability of the statute to revocation proceedings. The Kentucky Supreme Court held:
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. A statute must be read plainly and interpreted so no part is rendered meaningless. Commonwealth v. Phon, 17 S.W.3d 106, 108 (Ky. 2000). KRS 439.3106(1) states, on its face, the obligations of a trial court to render decisions on revocation using very specific facts.
In revoking Stambaugh's probation, the Johnson Circuit Court summarized the testimony, enumerated Stambaugh's multiple violations and the many community service programs he failed. It made specific oral findings as to the essential elements in KRS 439.3106. Its written order did not include the specific findings made orally on the record. However, written findings are not required if oral findings were made and are sufficient. Commonwealth v. Alleman, 306 S.W.3d 484, 487 (Ky. 2010).
Stambaugh was entitled to factual findings explaining how he violated his probation. The trial court made such factual findings. Its oral findings were not merely perfunctory, citing the statutory language in KRS 439.3106. Rather, they included proof in the record established by a preponderance of the evidence how he violated the terms of his release and the statutory criteria for revocation. Helms v. Commonwealth, 475 S.W.3d 637, 645 (Ky. App. 2015).
Accordingly, we find no manifest injustice and affirm the order of the Johnson Circuit Court revoking Stambaugh's probation.
ALL CONCUR. BRIEFS FOR APPELLANT: Julia K. Pearson
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Joseph A. Newberg, II
Assistant Attorney General
Frankfort, Kentucky