Opinion
NO. 2014-CA-001460-MR
04-15-2016
TARA WELLS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Brandon Neil Jewell Assistant Public Advocate Dept. of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky James Havey Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NO. 13-CR-00587 OPINION
REVERSING AND REMANDING BEFORE: KRAMER, TAYLOR AND THOMPSON, JUDGES. THOMPSON, JUDGE: Tara Wells appeals from an order of the Campbell Circuit Court revoking her probation and sentencing her to three-years' imprisonment in accordance with her original sentence. She contends the Campbell Circuit Court erred when it found a violation of a condition of her probation constituted a significant risk to prior victims or the community and whether she can be appropriately managed in the community before revoking her probation as required by Kentucky Revised Statutes (KRS) 439.3106. Wells further contends the trial court erred when it ruled she could proceed on appeal without paying court costs but imposed a public defender fee of $125 to be paid at the minimum rate of $50 per month after her release from custody. We agree with Wells that the circuit court made insufficient findings of fact to revoke her probation and reverse and remand. Because we are reversing the order revoking probation, we conclude the imposition of the public defender fee must also be reversed and the issue reconsidered as part of the trial court's order on remand.
On August 26, 2013, Wells entered a guilty plea to third-degree assault and disorderly conduct. She was placed on felony diversion for the third-degree assault conviction and the disorderly conduct misdemeanor was probated. On February 20, 2014, Wells's diversion was terminated after she received a new felony drug charge and was sentenced to three years, probated for three years. As a condition of probation, she was required to complete all phases of an inpatient substance abuse treatment program. She was also ordered to pay court costs and a partial public defender fee.
On July 17, 2014, a probation and parole officer alleged Wells was in violation of a condition of her probation for failure to complete treatment for substance abuse after being terminated from the Healing Place Treatment Center in Louisville, Kentucky. A probation revocation hearing was held on July 29, 2014.
At the hearing, probation and parole officer Jennifer Pelle testified that another officer informed her Wells was terminated from the drug treatment program after Wells and several other women were hitting each other in the crotch. She testified that during the investigation of that incident, Wells admitted to participating in the incident which she referred to as a game. No one was injured.
Defense counsel argued Wells's probation should not be revoked because the incident was "horseplay" and Wells refrained from using drugs and not committed any other probation violations. He further argued Wells was capable of supervision in the community and until her termination from the drug treatment program, her treatment had been successful.
The trial court revoked Wells's probation. Its order did not make any findings that Wells's violation of the conditions of her probation constituted a significant risk to prior victims or the community and that she could not be appropriately managed in the community. Wells appealed.
Prior to 2011, probation revocation was a decision within the trial court's discretion if the Commonwealth met its burden to prove by a preponderance of the evidence that a defendant violated a condition of probation. The trial court's decision was subject to reversal only when that discretion was abused. Tiryung v. Commonwealth, 717 S.W.2d 503, 504 (Ky.App. 1986). However, in 2011, the statutory law concerning probation revocation underwent substantial changes when the General Assembly enacted the Public Safety and Accountability Act, commonly referred to as House Bill 463. KRS 439.3106, a part of the new statutory scheme, 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.
After the enactment of KRS 439.3106, there was confusion among trial courts and panels of this Court whether trial courts were required to enter express findings as to the factors in subsection (1). See McClure v. Commonwealth, 457 S.W.3d 728, 731 (Ky.App. 2015). Today, we write with a definitive answer provided by our Supreme Court.
In Andrews v. Commonwealth, 448 S.W.3d 773, 777 (Ky. 2014), our Supreme Court held KRS 439.3106 establishes a new criteria that trial court's are required to consider in a probation revocation proceedings. The Court's directive was clear: Probation is not to be revoked without finding that a probationer's violation constitutes a significant risk to the prior victims or the community at large and the probationer cannot be effectively managed in community. Id. As the Court pointed out, the statutory findings promote the objectives of HB 463 by "ensuring that probationers are not being incarcerated for minor probation violations." Id. at 779.
The Campbell Circuit Court made no findings as to whether Wells's termination from her drug treatment program constitutes a significant risk to prior victims or the community or whether she could be managed in the community. Due to the absence of findings in relation to the specific criteria provided in KRS 439.3106(1), the revocation of probation was an abuse of discretion "under the new state of the law." Id. at 780.
The Commonwealth admits the trial court was required to make the appropriate findings under KRS 439.3106(1) before revoking Wells's probation and its failure to do so was error. Nevertheless, it argues we must affirm because Wells did not properly preserve the error.
The record demonstrates Wells's counsel requested the court to consider sanctions other than revocation and incarceration. However, the record also reflects that Wells did not file a motion pursuant to Kentucky Rules of Civil Procedure (CR) 52.04 which states as follows:
A final judgment shall not be reversed or remanded because of the failure of the trial court to make a finding of fact on an issue essential to the judgment unless such failure is brought to the attention of the trial court by a written request for a finding on that issue or by a motion pursuant to Rule 52.02.
Wells requests that we conduct a review for palpable error pursuant to Kentucky Rules of Criminal Procedure (RCr) 10.26. Palpable error is one that results in "manifest injustice" affecting a party's substantial rights. Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). A manifest injustice occurs if the error is such that it "seriously affects the fairness, integrity or public reputation of judicial proceedings" so as to be "shocking or jurisprudently intolerable." Id. at 4.
In this case, a strong argument can be made that Wells's participation in what was termed as "horseplay" at the drug treatment facility was not conduct that would seriously endanger the community. Additionally, the evidence indicated she had success in her drug treatment program and, therefore, that she had been successfully managed in the community. Under the facts, "there is a 'substantial possibility' that the result in the case would have been different without the error," Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006), and review is appropriate under the traditional RCr 10.26 standard.
Moreover, the purpose of requiring findings of fact regarding the statutory factors ensures juridical compliance with the legislative mandate and to further the objective of penal reform in this Commonwealth. If the sweeping changes to our penal system are to have meaning and the goal of reducing the financially draining toll of this Commonwealth's increasing prison population has any prospect of being met, our trial courts must comply with the mandate of KRS 439.3106. The success or failure of this Commonwealth's attempts of meaningful penal reform depends on the trial court's implementation of the statutory reforms.
In Andrews, our Supreme Court has explicitly directed that in probation revocation matters, a trial court shall consider sanctions other than imprisonment. Andrews, 448 S.W.3d at 778-79. The Court in Andrews explained that through statutory reform, the legislature placed the duty to consider the factors in KRS 439.3106 squarely on the trial court after the probation officer has determined that graduated sanctions are inappropriate. "By requiring trial courts to determine that a probationer 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 schema to ensure that probationers are not being incarcerated for minor probation violations." Id. at 779 (emphasis added).
In Williams v. Commonwealth, 462 S.W.3d 407 (Ky.App. 2015), this Court held that as interpreted by the Andrews Court, KRS 439.3106 mandates that the trial court consider the statutory factors before revoking probation. We held reversal was required even if the error is not properly preserved and directed as follows:
[A] trial court must address more than the fact of the violation of the terms of probation; in addition, it must consider whether the probationer constitutes a significant risk either to a victim or to the community at large. And it must evaluate whether or not he can be managed in that community. Andrews requires both the trial court and the Department of Corrections to consider a range of sanctions graduated in severity as reflected by the level of risk posed by the supervised individual[.]Id. at 411. The Campbell Circuit Court's failure to consider KRS 439.3106 constitutes reversible error requiring remand for a hearing pursuant to the statutory criteria and appropriate findings of fact.
Wells's final argument is that the trial court's order imposing a public defender fee of $125 in the order revoking her probation constituted error.
In its original 2013 sentence, Wells was ordered to pay circuit court costs and a partial public defender fee. No appeal was taken from that order. On July 24, 2014, when Wells appeared before the trial court for the probation revocation, she was questioned regarding her financial status and appointed a DPA attorney to represent her. Following the revocation order, she was permitted to proceed on appeal in forma pauperis.
Wells argues the public defender fee must be vacated on appeal because she was clearly indigent when ordered to pay the fee because she had been permitted to appeal without paying appellate costs. The Commonwealth points out the trial court had already determined Wells could pay court costs and a partial defender fee prior to permitting her to proceed in forma pauperis by operation of the presumption provided for in KRS 31.120(1)(c). We conclude it is unnecessary to resolve this issue even if properly preserved.
Although the imposition of a partial public defender fee has no relationship to the defendant's guilt or innocence and is based on the defendant's ability to pay, Donovan v. Commonwealth, 60 S.W.3d 581, 584-85 (Ky.App. 2001), the imposition of the partial public defender fee was based on the relationship of Wells's ability to pay while incarcerated and upon release. Because we are reversing and remanding the revocation of her probation, the trial court will be required to re-examine the issue of the imposition of a partial public defender's fee. On remand, the trial court is directed to our Supreme Court's decision in Spicer v. Commonwealth, 442 S.W.3d 26 (Ky. 2014), addressing KRS 31.120(1)(c) and decided after entry of the trial court's order imposing the public defender fee.
For the aforementioned reasons, we reverse and remand the order of the Campbell Circuit Court for further proceedings consistent with this opinion.
ALL CONCUR. BRIEFS FOR APPELLANT: Brandon Neil Jewell
Assistant Public Advocate
Dept. of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky James Havey
Assistant Attorney General
Frankfort, Kentucky