Opinion
NO. 2012-CA-000357-MR
03-22-2013
DEVAN DESHAWN ANGLEN APPELLAN v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Samuel N. Potter Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Tami Allen Stetler Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
ACTION NO. 11-CR-00766
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; DIXON AND LAMBERT, JUDGES. LAMBERT, JUDGE: Appellant, Devan DeShawn Anglen, appeals from a judgment sentencing him to three years' imprisonment after he pled guilty to an amended charge of first-degree possession of a controlled substance. He argues that the trial court abused its discretion by denying probation after failing to consider his participation in a substance abuse recovery program and sobriety prior to sentencing. We affirm.
The Fayette County Grand Jury indicted Anglen on charges of first-degree trafficking in a controlled substance, first-degree promotion of contraband, possession of a synthetic cannabinoid, and being a first-degree persistent felony offender (PFO). Anglen and the Commonwealth entered into a plea agreement under which the first-degree trafficking charge was amended to first-degree possession and the other charges were dismissed with a recommended sentence of three years of imprisonment. Following a plea colloquy on December 9, 2011, the Fayette Circuit Court accepted Anglen's guilty plea. Subsequently, the trial court denied probation and imposed the recommended sentence of three years of imprisonment in a final judgment entered on January 20, 2012. This appeal now follows.
Anglen argues that the trial court abused its discretion by failing to consider his successful participation in a substance abuse recovery program and his sobriety before denying probation. We disagree.
Kentucky Revised Statutes (KRS) 533.010(2) states:
Before imposition of a sentence of imprisonment, the court shall consider probation, probation with an alternative sentencing plan, or conditional discharge. Unless the defendant is a violent felon as defined in KRS 439.3401 or a statute prohibits probation, shock probation, or conditional discharge, after due consideration of the defendant's risk and needs assessment, nature and circumstances of the crime, and the history, character, and condition of the defendant,"[T]he trial judge must comply with KRS 533.010 and give due consideration to the possibility of probation after first considering the crime and the defendant." Bell v. Commonwealth, 566 S.W.2d 785, 787 (Ky. App. 1978). "To insure such compliance, the trial court must place in the record a statement sufficient to show that the necessary consideration has been given." Id. It is well-established that the determination whether to grant or deny probation is committed to the discretion of the trial court. Turner v. Commonwealth, 914 S.W.2d 343, 347 (Ky. 1996); Aviles v. Commonwealth, 17 S.W.3d 534, 536 (Ky. App. 2000).
probation or conditional discharge shall be granted, unless the court is of the opinion that imprisonment is necessary for protection of the public because:
(a) There is substantial risk that during a period of probation or conditional discharge the defendant will commit another crime;
(b) The defendant is in need of correctional treatment that can be provided most effectively by his commitment to a correctional institution; or
(c) A disposition under this chapter will unduly depreciate the seriousness of the defendant's crime.
The judgment entered on January 20, 2012, states:
The Court inquired of the Defendant and his counsel whether they had any legal cause to show why judgment should not be pronounced, and afforded the Defendant and his counsel an opportunity to make statements in the Defendant's behalf, and to present any information in mitigation of punishment. The Defendant being informed of the factual contents and conclusion contained in the Pre-Sentence Investigation Report, and having been given opportunity to controvert said Report, and the Court having given due consideration to the Report, theAt the sentencing hearing, counsel for Anglen acknowledged that the Pre-Sentence Investigation Report concluded that Anglen was not a suitable candidate for probation. Counsel informed the court of Anglen's successful participation in a substance abuse recovery program and his sobriety while released on bond. Our review of the record and judgment indicates that the trial court properly considered the KRS 533.010 factors. There is no indication that the trial court failed to consider Anglen's participation in the recovery program and sobriety or determined Anglen's sentence prior to the sentencing hearing. In fact, the judgment explicitly states that the trial court considered all relevant factors. Anglen has failed to demonstrate an abuse of discretion. He simply disagrees with the weight that the trial court assigned to the various factors in this case. This Court is not permitted to substitute its judgment for that of the trial court with regard to the weight of the evidence. New v. Commonwealth, 156 S.W.3d 769, 773 (Ky. App. 2005).
nature and circumstances of the crime, and to the history, character and condition of the Defendant, and having considered a sentence of probation and a sentence of conditional discharge, is of the opinion that imprisonment is necessary for the protection of the public because the Defendant is in need of correctional treatment that can be provided most effectively by commitment to a correctional institution. Probation or Conditional Discharge and probation with an alternative sentencing plan [is] denied for the following reasons: (1) probation, conditional discharge or probation with an alternative sentencing plan would unduly depreciate the seriousness of the defendant's crime due to the following factor(s): (1) defendant's felony conviction within ten (10) years prior to date of present offense, (2) defendant's prior criminal record, (3) deliberate nature of the defendant's crime and (4) defendant's failure to benefit from previous probation.
Accordingly, the judgment of the Fayette Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Samuel N. Potter
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Tami Allen Stetler
Assistant Attorney General
Frankfort, Kentucky