Opinion
NO. 2016-CA-001021-MR
06-16-2017
MICHAEL DEAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Brandon Neil Jewell Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WAYNE CIRCUIT COURT
HONORABLE VERNON MINIARD, JR., JUDGE
ACTION NO. 14-CR-00046 OPINION
AFFIRMING
** ** ** ** **
BEFORE: J. LAMBERT, STUMBO, AND TAYLOR, JUDGES. LAMBERT, J., JUDGE: Michael Dean has appealed from the July 6, 2016, order of the Wayne Circuit Court revoking his probation. Finding no abuse of discretion in the circuit court's ruling, we affirm.
In July 2014, Dean and co-defendant Felicia Hicks were indicted on two counts of theft by unlawful taking over $500.00 pursuant to Kentucky Revised Statutes (KRS) 514.030 for taking a 2001 Dodge Caravan and its contents, one count of manufacturing methamphetamine pursuant to KRS 218A.1432, one count of possession of drug paraphernalia pursuant to KRS 218A.500, and for being a first-degree persistent felony offender (PFO I) pursuant to KRS 532.080(3). The Uniform Citation stated as follows:
Received a call to check suspicious vehicle parked behind the Best Western hotel. Upon arrival the above van was setting in a parked position with the above in the drivers [sic] seat and a female in the passenger seat. The above van had been reported stolen and entered NCIC on 05/22/2014. Complaining witness stated that the above and the female located in the vehicle had taken her keys from her purse and drove away in the van. Upon making contact with the above several items consistent with the manufacturing of methamphetamine were seen in plain view from the outside. Items being salt, mason [sic] jar, scraper, and lithium battery found in above's hand. While getting the above from the vehicle he was seen removing an item from his pocket and dropping it between the front seats. Upon looking between the seats the item dropped was identified as a hypodermic needle. Also in plain view was a spoon with an unidentified apparent narcotic substance.A public defender was appointed to represent Dean.
Dean ultimately entered a guilty plea to the first four counts of the indictment, with the PFO I count being dismissed. In January 2015, the circuit court sentenced Dean to five years on each of the theft charges, to run concurrently, and to ten years on the manufacturing charge and twelve months on the possession of drug paraphernalia charge, to run consecutively to the theft charges, for a total sentence of fifteen years. In lieu of serving the sentence, Dean was placed on supervised probation for five years, subject to several conditions, including the destruction of his firearms, to not use alcohol or drugs, to comply with the probation and parole rules, to refrain from any further violations of the law, to work, to undergo available medical or psychiatric treatment, to report to his probation officers as directed, to notify his probation office of any change of address, and to submit to periodic drug or alcohol testing.
Probation officer Carson Payne filed a special supervision report on January 9, 2015, three days after Dean was sentenced. In the report, Carson explained that an incident report had been filed on January 6th at the Wayne County Detention Center to the effect that Dean had a cell phone in his jail cell and that he was using the phone to call and harass people. Payne filed a subsequent special supervision report in February 2015 after Dean tested positive for methamphetamine and Suboxone following a random drug screening. Dean admitted to using methamphetamine or Suboxone on three occasions in January and February. Dean was to meet with the social services clinician, follow all recommendations, and report weekly. He was to begin substance abuse treatment at Jacob's House in March 2015.
Payne filed a violation of supervision report in March 2015, noting Dean's failures to report to the probation office as requested after multiple communications. A family member called the office on March 13th to state that Dean had been in the hospital, but Payne was unable to locate a patient by his name in any of the local hospitals. When Dean finally reported to the probation office, he tested positive for methamphetamine and admitted to using it three times that month. He did not have any proof that he had attended Celebrate Recovery as he had been directed to do. Dean had also been served with a warrant for second-degree promoting contraband for being in possession of a cell phone at the detention center in January. Because Dean had a pending charge, he was unable to begin treatment at Jacob's House. Payne recommended that Dean begin long term inpatient treatment at Jacob's House and that a probation revocation warrant for absconding be issued.
By separate filing, the Commonwealth moved to revoke Dean's probation for the reasons listed in Payne's report. Following a hearing, the court entered an order on April 20, 2015, directing Dean to complete a rehabilitation program at Hickory Hill Recovery Center in lieu of revoking his probation. He was transferred to the center later that month, and per a letter from his case manager at the center, he would complete the program around the end of the year.
Probation Officer Jason Turner filed a special supervision report in February 2016, stating that during a home visit in early January, the officer came into contact with Felicia Hicks, who is a convicted felon and his co-defendant in the present action. Hicks was arrested on a probation violation, and Dean was warned not to have any contact with her.
In May 2016, the Commonwealth moved to revoke Dean's probation for failure to report to his probation officer and for absconding probation supervision. A violation of supervision report completed by Turner was also entered. This report established that Turner and another officer went to Dean's residence in Hazard to conduct a home visit, but no one was there. A neighbor reported that Dean had moved back to Wayne County. Dean had not been given permission to travel and had not provided his probation officer with a change of address. Turner's attempts to locate Dean were unsuccessful, and he believed Dean was attempting to avoid supervision by concealing his location. Dean had also failed to report on his monthly report day and per instructions left at his residence. Dean was arrested on a warrant issued for his probation violation. Prior to the revocation hearing, the Department of Public Advocacy (DPA) filed an alternative sentencing plan in June 2016, recommending that he attend rehab at a Recovery Kentucky Men's facility.
The court held a revocation hearing on July 5, 2016. Payne testified that Dean was assigned to his case load once he became an absconder; Payne had also supervised Dean prior to his entry into the treatment program. Dean had been under Turner's supervision since he had completed rehab in November 2015, when he lived in Hazard. Referring to Turner's report, Payne testified that Dean failed to report on May 2, 2016, and Payne related the April home visit when Turner and another officer failed to locate Dean. The last address Dean had provided was the address in Hazard. Dean had not reported to any probation office and had absconded from supervision. Payne had not received notice that Dean had failed a drug screening after he completed rehab.
DPA Social Worker Brandy Troxell testified about Hickory Hill and Dean's past treatment at that facility. Dean had completed the program in the past and was eligible to return to the center. He had done service projects at an area church and was welcome to return. Dean requested that he be placed into the rehab program in lieu of revoking his probation, noting his good work at the facility in the past. The Commonwealth pointed out that Dean had been before the court on prior revocation issues and that this time it had nothing to do with drug issues, but rather he was not willing to follow the probation officer's directions. If he would not report to his probation officer, there would be no way to manage him in the community. The court made findings on the record that he could not be managed in and was a danger to the community and that there were no alternatives to revocation.
By order entered July 6, 2016, the court revoked Dean's probation finding that he was in violation of the terms of his probation by failing to report to his probation officer as he was directed to do, failing to report his change of address, and absconding probation supervision. The court found that continuing Dean's probation would unduly depreciate the seriousness of his crime and his continued violations of his probation, that there were no less restrictive alternatives than revocation, that he would likely re-offend if he stayed in the community, that he posed a risk to and could not be managed in the community, and that he was a danger to himself and the community at large based upon his criminal history, past behavior, and current violations. Therefore, the court imposed a sentence of imprisonment. This appeal now follows.
On appeal, Dean argues that the circuit court erred in finding that he posed a significant risk to the community and abused its discretion in revoking his probation rather than imposing graduated sanctions pursuant to KRS 439.3106. The Commonwealth asserts that the circuit court did not abuse its discretion in doing so.
KRS 533.020(1) permits a trial court to place a convicted defendant on probation in lieu of a sentence of imprisonment, and it also permits the trial court to revoke that probation under certain circumstances:
(1) When a person who has been convicted of an offense or who has entered a plea of guilty to an offense is not sentenced to imprisonment, the court shall place him on probation if he is in need of the supervision, guidance, assistance, or direction that the probation service can provide. Conditions of probation shall be imposed as provided in KRS 533.030, but the court may modify or enlarge the conditions or, if the defendant commits an additional offense or violates a condition, revoke the sentence at any time prior to the expiration or termination of the period of probation. When setting conditions under this subsection, the court shall not order any defendant to pay incarceration costs or any other cost permitted to be ordered under KRS 533.010 or other statute, except restitution and any costs owed to the Department of Corrections, through the circuit clerk.In Helms v. Commonwealth, 475 S.W.3d 637, 641 (Ky. App. 2015), this Court addressed the applicable burden of proof and standard for review of a trial court's decision in a revocation proceeding:
The Commonwealth's burden [to revoke a defendant's probation] is to prove by a preponderance of the evidence that the defendant violated the conditions of his or her probation. Murphy v. Commonwealth, 551 S.W.2d 838, 841 (Ky. App. 1977). Historically, once this burden was met, the decision to revoke probation has been within the trial court's discretion and not reversed unless that discretion had been abused. Tiryung v. Commonwealth, 717 S.W.2d 503, 504 (Ky. App. 1986). On appellate review, the traditional test was simply 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). Great deference was paid to a trial court's decision to revoke probation and was not an abuse of discretion if there was evidence to support at least one probation violation. Messer v. Commonwealth, 754 S.W.2d 872, 873 (Ky. App. 1988).
In 2011, the General Assembly adopted a corrections reform bill in House Bill 463, bringing about significant changes to this area of statutory law. KRS 439.3106 now provides:
Supervised individuals shall be subject to:The Helms Court explained the statutory changes brought about by the adoption of HB 463:
(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.
Faced with an increasing prison population and its associated costs, the General Assembly passed landmark legislation and declared a new sentencing policy of this Commonwealth. Focusing on rehabilitation rather than incarceration, it is now the policy 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). In cases involving nonviolent drug offenses, "therapeutic intervention and ongoing individualized" treatment plans "shall" be used instead of incarceration. KRS 218A.005. To further this Commonwealth's penal policy, the statutory law regarding probation and other forms of supervised release underwent significant change by creating KRS 439.3107 and companion statutes.Helms, 475 S.W.3d at 641-42.
KRS 439.3107 instructs the DOC to "adopt a system of graduated sanctions for violations of conditions of community supervision" for the most common types of violations. Common violations include: failure to report, failure to pay fines and fees, and failure to refrain from the use of alcohol or controlled substances. Id. The statute instructs that the system of sanctions "shall take into account factors such as the severity of the current violation, the supervised individual's previous criminal record, the number and severity of any previous supervision violations, the supervised individual's assessed risk level, and the extent to which graduated sanctions were imposed for previous violations." Id. (Emphasis added).
Dean contends that the record does not support the circuit court's findings that he posed a risk to and could not be managed in the community and that the circuit court improperly used boilerplate language in its order stating this. He cites to Helms, supra, in support of his argument:
"If the penal reforms brought about by HB 463 are to mean anything, perfunctorily reciting the statutory language in KRS 439.3106 is not enough. There must be proof in the record established by a preponderance of the evidence that a defendant violated the terms of his release and the statutory criteria for revocation has been met."Id. at 645. We disagree.
As the Commonwealth sets forth in its brief, the circuit court made sufficient findings, and the records supports, that Dean's actions met the criteria for his probation to be revoked rather than a lesser sanction. While the court certainly recited the language of KRS 439.3106, it went on to state that it had considered sanctions other than revocation as well as Dean's "criminal history, past behavior and current violations" before determining that he was "a danger to himself and the community at large" and could not be managed in the community.
The Commonwealth presented unrebutted evidence that Dean had failed to report to his probation officer, failed to report his change of address, and absconded from probation supervision. These charges were all raised in the supervision report; therefore, we perceive no failure to place Dean on notice of the violations the court ultimately found. And we note that while Dean presented evidence that he should be permitted to return to a previous rehabilitation facility, the present revocation proceedings had nothing to do with drug use. Rather, these proceedings were brought based upon his failures to report to his probation officer, to report his change of address, and for absconding. A subsequent stay at a drug rehabilitation center would not address Dean's failures to comply with the reporting requirements of his probation, meaning that he could not be managed in the community and constituted a risk to the community. Dean's citation to KRS 439.3108(7) ("Upon successful completion of a graduated sanction or sanctions, a court may not revoke the term of community supervision or impose additional sanctions for the same violation.") does not affect our decision, as Dean was not punished for prior violations, such as drug use, and the circuit court is permitted to consider past supervision violations when deciding whether to revoke a defendant's probation. See Helms, 475 S.W.3d at 642; KRS 439.3107(1). Accordingly, the circuit court did not abuse its discretion in revoking Dean's probation and imposing a term of incarceration.
We decline to consider Dean's argument in his reply brief that the Commonwealth relied upon hearsay in that the probation officer read from another officer's report. Dean failed to raise this issue below, and therefore it is not preserved for our review on appeal. See Brooks v. Commonwealth, 217 S.W.3d 219, 221 (Ky. 2007). --------
For the foregoing reasons, the order of the Wayne Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Brandon Neil Jewell
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky