Opinion
NO. 2014-CA-000987-MR
01-20-2017
JIMMY BURKEEN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Roy A. Durham Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MARSHALL CIRCUIT COURT
HONORABLE DENNIS R. FOUST, JUDGE
ACTION NO. 09-CR-00173 OPINION
AFFIRMING
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BEFORE: ACREE, J. LAMBERT, AND TAYLOR, JUDGES. ACREE, JUDGE: Jimmy Burkeen appeals the May 15, 2014 order of the Marshall Circuit Court revoking his probation and imposing his original ten-year prison sentence. The issue presented is whether the trial court complied with the due process requirements provided in Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) when it considered alternatives to incarceration for flagrant non-support prior to revoking his probation. After careful review of the record, we affirm.
I. Factual and Procedural Background
Jimmy Burkeen was ordered to pay $244.74 per month in child support after he and his wife divorced in 2000. By 2006, Burkeen was in arrears in excess of $12,000. In 2009, he was indicted for flagrant non-support and for the status offense of being a second-degree persistent felony offender (PFO). A warrant was issued, and Burkeen was arrested on February 13, 2010. He was released on a $5,000 unsecured bond on the condition that he pay current child support and appear in court as directed. A trial was set for August 12, 2010, to address the charges.
The Commonwealth offered Burkeen a five-year sentence for the non-support charge, which was enhanced to ten years by the PFO. The plea agreement stated that the ten-year sentence was to be probated for five years on the court's usual conditions. Additionally, Burkeen was required to pay his child support arrearage of $27,136.75 at a rate of $100 per month. Burkeen accepted the Commonwealth's offer. He entered a guilty plea to the charges on August 6, 2010.
At this time, no further current child support was due because the child had been adopted. --------
An order was entered on October 8, 2010, which outlined the conditions of Burkeen's probation. The conditions included that he must: not commit another offense; avoid injurious or vicious habits; avoid persons or places of disreputable or harmful character; work faithfully at suitable employment; and pay child support arrearage.
Burkeen made payments from October 2010 through June 2012, but the total amount paid was only about $1,300. In August 2013, he was arrested and pleaded guilty to a charge of aggravated driving under the influence. The Commonwealth filed a motion to revoke Burkeen's probation based on these violations.
Burkeen and the Commonwealth agreed to a sanction based on the following terms:
A. The Defendant shall serve a total of 13 months in jail, split up into increments of approximately 28 days at a time. (Each 28 day increment will constitute one month.) ...
B. During the gaps between the various release dates and the next reporting dates, the Defendant shall take all necessary steps to pay over toward his child support obligation the sum of $701.00 per month.
C. Defendant shall remain drug and alcohol free at all times and shall be subject to random drug tests and random PBT's.
D. Following the final release on this sanction, the Defendant shall resume the payment of $100.00 per month toward his child support arrearage as previously ordered by this Court.
The Agreed Order was entered in Marshall Circuit Court on September 3, 2013. Burkeen failed to report to jail in accordance with the commitment order entered pursuant to the agreement and made no payments toward his child support arrearage. A bench warrant was issued on January 16, 2014. Burkeen was arrested on April 5, 2014. The Commonwealth filed a motion to revoke Burkeen's probation on April 10, 2014 citing violation of the September 3, 2013 Agreed Order previously entered then in lieu of revocation.
A hearing was held on April 21, 2014. Burkeen addressed the court on his own behalf. He stated he did not think it was fair to have to spend years in jail for failure to pay child support because he is poor. He claimed that murderers were given lesser sentences than what he received. He accused the court of trying to extort all of his social security money from him. The court explained that the purpose of the payments is to benefit his child. The court appointed counsel to Burkeen and passed the hearing until May 9, 2014.
At the May 9, 2014 hearing, the Commonwealth requested that the full ten-year sentence be imposed. Burkeen requested that the court enforce only the one-year agreed upon sanction.
Burkeen argued that he did not report to jail because he did not think it was fair, despite his agreement to do so. Additionally, he claimed he was unable to pay the $701 per month. Burkeen stated his only source of income was from social security payments which amounted to slightly over $700 a month.
The circuit court found that Burkeen violated the terms of this probation by receiving new felony charges, failing to pay his child support, and failing to report to jail to serve his alternative sentence pursuant to an agreement. The court ruled that it had attempted to deal with Burkeen with solutions other than incarceration throughout his history of criminality, but concluded there were no alternatives available to assist Burkeen in complying with the law. The court further found that Burkeen's failure to comply with the conditions of his probation constituted a significant risk to the community at large which cannot be appropriately managed in the community. The circuit court revoked Burkeen's probation and ordered him to serve his ten-year sentence. Burkeen now appeals.
II. Standard of Review
Whether to revoke probation is a matter within the broad discretion of the trial court. See KRS 533.020(1). We will not disturb a revocation order absent an abuse of that discretion. Commonwealth v. Lopez, 292 S.W.3d 878, 881 (Ky. 2009).
III. Analysis
Burkeen complains that the trial court abused its discretion in failing to consider less restrictive alternatives to incarceration when it revoked his probation and imposed his full sentence. Specifically, Burkeen argues that the trial court did not engage in the required analysis under Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) to inquire into the reasons for Burkeen's failure to pay his child support. We disagree.
The Kentucky Supreme Court recently discussed Bearden in Commonwealth v. Marshall, 345 S.W.3d 822 (Ky. 2011). The Marshall Court held that the Bearden due process requirements apply to motions for probation revocation for failure to comply with conditions requiring payment of child support. Marshall, 345 S.W.3d at 828. Those requirements direct a trial court to consider: "(1) whether the probationer made sufficient bona fide attempts to make payments but [has] been unable to do so through no fault of his own and, if so, (2) whether alternatives to imprisonment might suffice to serve interest in punishment and deterrence." Id. The Marshall Court further stated that these provisions apply even when the defendant has agreed to make child support payments under a plea agreement. Id. at 829. In such a case, the trial court may consider any post-plea financial changes experienced by the defendant. Id.
Burkeen focuses on the fact that some payments were made from October 2010 through June 2012. He claims there is nothing in the record showing that the court asked him why he stopped paying or if he was able to continue to pay. However, Burkeen made it very clear at the April and May hearings that the reason he stopped paying was because he thought he should not have to pay. In his opinion, it was not fair. Burkeen attempts to belittle the importance of his obligation by pointing out that his payments were not for current child support, but only arrearages, and that the child was being cared for. It is obvious given the substantial amount Burkeen owes in arrearages he has repeatedly avoided his obligation to provide for his own child.
It was Burkeen's burden as the probationer to persuade the trial court that he made bona fide efforts to comply with payment conditions but was unable to do so through no fault of his own. Marshall, 345 S.W.3d at 834. However, Burkeen did not present any evidence of any post-plea financial changes. He did not present any evidence of bona fide efforts made by him to comply with the terms of the sanction contained in the plea agreement. There was essentially no attempt to comply with his probation and the consequent agreed-to sanction.
Burkeen also argues that a valid alternative to incarceration would be to reduce the monthly amount he was required to pay. Yet, prior to the plea agreement, Burkeen was required to pay $100 per month. He was unable to consistently do so. When he signed the plea agreement agreeing to pay $701 per month in lieu of revocation, it was undisputed he received approximately $700 per month in social security benefits. Burkeen did not assert that he no longer received the social security payments, but only that he felt the court was trying to extort the money from him. He simply did not want to pay any amount from what he received toward the amount he owed. As the trial court noted, "the defendant essentially thumbed his nose at the Court system." (R. 73).
Furthermore, Burkeen not only violated his probation for failing to pay child support, he obtained a new criminal charge, a third DUI. It was reasonable for the trial court to revoke Burkeen's probation and impose incarceration for the purpose of punishment because he continued to fail to support his child while on probation as well as pose a risk to the surrounding public.
The record reflects that Burkeen was afforded the due process requirements provided in Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983), and therefore, we conclude that the trial court did not abuse its discretion in revoking Burkeen's probation.
The Marshall Circuit Court's May 15, 2014 order revoking Burkeen's probation and imposing his original ten-year prison sentence is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Roy A. Durham
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky