Opinion
NO. 2011-CA-001556-MR
05-03-2013
DOUGLAS E. DOWNS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Erin Hoffman Yang Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Jeffrey A. Cross Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM UNION CIRCUIT COURT
HONORABLE C. RENE' WILLIAMS, JUDGE
ACTION NO. 10-CR-00026
OPINION
VACATING AND REMANDING
BEFORE: CLAYTON, MOORE AND NICKELL, JUDGES. CLAYTON, JUDGE: Douglas E. Downs appeals the Union Circuit Court order, entered on August 3, 2011, that revoked his probation and sentenced him to five-years' imprisonment. He alleges that the circuit court abused its discretion when it revoked his probation after he left an in-house treatment program. After careful review of the record, we agree that the trial court abused its discretion, and thus, we vacate and remand.
On May 4, 2010, Downs was indicted by the Union County Grand Jury and charged with one count of theft by unlawful taking (over $500), a Class D felony, which arose from the theft of metal to be sold as scrap. When Downs was indicted, he had a significant criminal history dating back to 1990. After initially pleading "not guilty" to the charge, Downs reached a plea deal with the Commonwealth. The deal was for Downs to plead guilty on the charged offense in exchange for a five-year sentence with shock probation to be granted after he served 90 days.
On December 10, 2010, the trial court entered a judgment and order imposing a sentence after Downs' guilty plea. He was sentenced to five-years' imprisonment and shock probation after serving 90 days, which included the condition that he participate and complete an in-house drug and alcohol treatment.
Then, on July 25, 2011, four months following Downs' release on probation, the Department of Corrections filed a report with the trial court to have Downs' probation revoked because he had failed to finish an in-house drug and alcohol treatment. Following the Commonwealth's August 2, 2011 motion to revoke probation, a hearing was held on that same day. At the inception of the hearing, Downs' defense counsel objected to the proceeding. Defense counsel argued that revocation proceedings were inappropriate because the newly enacted statute, Kentucky Revised Statutes (KRS) 439.3106, required the trial court to impose graduated sanctions before revoking probation unless the probationer posed a risk to the community or the victim of the probationer's crime.
Immediately before the evidentiary portion of the hearing, the trial judge sought input about the probation revocation process under the new statutory requirements from not only counsel but also the probation officer supervising Downs. At the conclusion of this discussion, the trial court ruled that the matter was properly before it. The trial judge then conducted the hearing and placed the probation officer under oath.
According to the officer's testimony, Downs was on anti-anxiety medication prior to his release on shock probation. At the beginning of his supervision, the officer obtained a physician's statement which allowed Downs to be removed from all medication. Subsequently, Downs was placed in a detox program and then sent to the Owensboro Regional Recovery Center for treatment.
The probation officer noted that Downs left the in-house drug and alcohol treatment program before completion. The officer stated that Downs left the treatment center and went to a hospital emergency room reporting suicidal thoughts. Apparently, Downs felt harassed by the kitchen staff because they played loud music, and therefore, he wanted to go play in traffic. After this hospital visit, Downs did not want to return to the treatment facility because of the perceived harassment. The officer conceded that Downs provided him with the names of other treatment programs after he left the aforementioned treatment center. However, those programs were for only 30 days as opposed to long term treatment programs.
Although Downs did not testify during the hearing, defense counsel argued that Downs was not a violent person, prison would not fix him, he could be treated in the community, and he should be sent back to a community facility for treatment. Nevertheless, the trial court ruled from the bench and ordered that Downs' probation be revoked. The trial judge explained her decision by noting that Downs had an extensive criminal history, had not qualified for pretrial diversion, and likely would just walk away from another in-house treatment program. The trial court never made any finding that Downs posed a threat to the victim or the community at large. Downs appeals from this order.
Our standard of review for revocation of probation is whether the trial court abused its discretion. Lucas v. Commonwealth, 258 S.W.3d 806, 807 (Ky. App. 2008). "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).
On appeal, Downs maintains that the trial court erred by not considering relevant statutory factors when it revoked his probation. After our review of those factors, we are compelled to agree. Prior to 2011, for the most part, a trial court's discretion would not be disturbed if there was evidence to support at least one probation violation. Lucas, 258 S.W.3d at 807-808. But since the enactment of KRS 439.3106, a failure to comply with a condition of probation is no longer sufficient to automatically justify revocation of probation.
The statute provides:
Supervised individuals shall be subject to:KRS 439.3106. Therefore, based on the plain meaning of the statute, probation cannot be revoked solely because the trial court finds that a probationer failed to abide by a condition of supervision.
(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.
The Commonwealth contends that since Downs was sentenced prior to the effective date of Kentucky Revised Statutes (KRS) 439.3106, the statute is not applicable. The statute became effective on June 8, 2011. This argument is not credible since the new statute refers to revocation of probation, not sentencing. In the instant case, the revocation of probation was not implicated until July 25, 2011, after the effective date of the statute.
To revoke probation, the trial court must now make additional findings. A trial court must ascertain whether the probationer's failure to abide by a supervision condition constitutes a significant risk to prior victims or the community and also that the probationer cannot be managed in the community. KRS 439.3106(1). Moreover, the Commonwealth bears the burden of establishing a violation of probation by a preponderance of the evidence. Commonwealth v. Marshall, 345 S.W.3d 822, 834 (Ky. 2011).
Because KRS 439.3106 is a relatively new statute, there is no case in which the Kentucky Supreme Court has reviewed it. Our Court, however, has reviewed it several times since its enactment. Two published cases were Jarrell v. Commonwealth, 384 S.W.3d 195 (Ky. App. 2012), and Southwood v. Commonwealth, 372 S.W.3d 882 (Ky. App. 2012). In both cases the trial court made findings regarding the defendants' behavior and the risk to commit another felony.
In the case before us, the court made no such findings. In fact, the trial court did not specifically address any of the factors in KRS 439.3106. In its written order, entered August 3, 2011, the trial court only found that Downs had failed to complete an in-house substance abuse program. It is the only reason cited in the order for revoking the probation. Notwithstanding the new statutory requirements, the trial court did not consider whether Downs, who left his treatment facility because of suicidal ideation, was a significant risk to his victims or the community at large. Additionally, the trial court did not address whether Downs could be appropriately managed in the community.
Nor did the trial court make any such findings from the bench when it revoked probation. First, the trial court stated that Downs had an extensive criminal history and had failed to qualify for pretrial diversion. The trial court had access to that same history when he was sentenced and that history did not prohibit his placement on probation.
The pertinent statutory language says that probation may only be revoked "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." Downs left a treatment program for a hospital emergency room because of suicidal ideation. This situation is easily distinguishable from Southwood and Carter since Downs did not commit any new criminal behavior, much less, a violent act, and was not assessed as likely to commit another felony.
It was argued that the treatment program was exacerbating some of his mental health issues. The trial court did not consider other alternative treatment programs. Although we understand the trial court's concern about the possibility of Downs leaving another community mental health treatment program, this fear does not constitute a "significant risk to prior victims of the supervised individual or the community at large."
Whether Downs could be "appropriately managed in the community," was not addressed by the court. Because the trial court failed to address the statutory factors in KRS 439.3106, we conclude that the trial court erred, and in doing so, abused its discretion. Hence, the circuit court's decision to revoke Downs' probation must be vacated.
Accordingly, we vacate and remand the Union Circuit Court's revocation of Downs' probation. The court may consider the provisions of KRS 439.3106(2) if applicable or impose an alternative to incarceration.
ALL CONCUR. BRIEF FOR APPELLANT: Erin Hoffman Yang
Department of Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Jeffrey A. Cross
Assistant Attorney General
Frankfort, Kentucky