Opinion
NO. 2012-CA-000615-MR
04-26-2013
STEPHANIE FLINK APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Emily Holt Rhorer Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Heather M. Fryman Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE JOHN DAVID PRESTON, JUDGE
ACTION NO. 11-CR-00035
OPINION
AFFIRMING
BEFORE: CLAYTON, LAMBERT, AND VANMETER, JUDGES. CLAYTON, JUDGE: Stephanie Flink appeals the March 5, 2012 order of Johnson Circuit Court granting the Commonwealth's motion to revoke her probation. She argues that Kentucky Revised Statutes (KRS) 439.3106 requires the imposition of graduated sanctions rather than revocation of probation. We disagree and, after careful consideration, affirm the decision of the trial court.
Stephanie Flink pled guilty on August 5, 2011, to two counts of first-degree Possession of a Controlled Substance and one count of Possession of Drug Paraphernalia. Final sentencing occurred on September 16, 2011; the Johnson Circuit Court entered an order sentencing her to five years, which was probated for a period of five years and subject to certain conditions. The sentencing order contained the following two conditions for Flink's probation: (1) no violation of the law, class B misdemeanor or higher, and (2) follow all of the recommendations, requirements, and conditions of probation and parole, including participation in a substance abuse program.
Flink began probation on September 20, 2011, but on December 20, 2011, the Commonwealth filed a motion to revoke Flink's probation "for failure to report to her probation officer, leaving supervision area, and failing to report new arrests." Attached to the motion was a special report prepared by Travis O'Bryan, a Probation Officer.
A revocation hearing was held on March 2, 2012. Before the hearing began, Flink's counsel argued that KRS 439.3106 requires that a trial court provide graduated sanctions before probation is revoked. Her counsel then opined that an appropriate sanction would be immediate placement in a long-term rehabilitation program. In response, the Commonwealth argued that Flink was not amenable to probation. The trial court also learned at the hearing that Flink was now pregnant.
O'Bryan was the only witness called by the Commonwealth. He serves as Flink's Probation Officer. He testified that Flink had not complied with the conditions of her probation. For instance, within seven days of the entry of the final sentencing, she had been arrested for shoplifting and public intoxication. She also did not report these incidents. Initially, O'Bryan stated that he attempted to have Flink report more often. That, however, was ineffective. Further, she lied to him about the location of her residence and did not respond to efforts to manage her probation.
In addition to the above-mentioned incidents, on November 27, 2011, Flink was arrested and charged with Operating on Suspended/Revoked Operator's License, No Kentucky Registration Receipt, No Registration Plates, and Failure to Maintain Insurance. Then, she was arrested in Floyd County on December 5, 2011, and charged with Public Intoxication. Since the arrest was in Floyd County, it was the basis for the probation violation that Flink left her area of supervision without permission. Besides these occurrences, O'Bryan revealed that she was arrested twice on bench warrants.
At the conclusion of the hearing, the trial court determined that Flink could not be managed in the community, failed to comply with the conditions of her release, that she is a risk to the community, and that it would be futile to attempt other sanctions. In the order entered on March 5, 2012, the trial court revoked Flink's probation. She now appeals from that order.
Flink contends that the trial court abused its discretion and violated her due process when it failed to consider alternates to revocation and incarceration as mandated by KRS 439.3106. The Commonwealth responds that the trial court properly revoked Flink's probation because she completely failed to abide by the conditions of her probation and, in essence, absconded from probation by failing to supply her home address.
The appellate standard of review of a decision to revoke a defendant's 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). And, absent a "flagrant miscarriage of justice," the trial court will be affirmed. Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983). Finally, "a trial court's decision revoking probation is not an abuse of discretion if there is evidence to support at least one probation violation." Lucas, 258 S.W.3d at 807-808. With this standard in mind, we review the matter.
The statute in question, KRS 439.3106 was enacted by the General Assembly in 2011. It provides the following guidelines for individuals subject to supervision:
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.
In the case at hand, the trial court determined that Flink could not be managed in the community, she failed to comply with the conditions of her release, she is a risk to the community, and that it would be futile to attempt other sanctions. Thus, the trial court's decision comported with the constraints of the new statute. The trial court revoked Flink's probation for failure to comply with the conditions of supervision, and noted that the failure constitutes a significant risk to the community at large. Further, the trial court observed that she cannot be appropriately managed in the community.
The Kentucky Supreme Court has not yet addressed KRS 439.3106, but the Court of Appeals has considered it in several cases. Two cases have been published—Jarrell v. Commonwealth, 384 S.W.3d 195 (Ky. App. 2012), and Southwood v. Commonwealth, 372 S.W.3d 882 (Ky. App. 2012). Given Flink's numerous violations and complete disregard of the conditions of her probation, we conclude that the trial court did not abuse its discretion in revoking Flink's probation.
Therefore, we affirm the March 5, 2012 order of the Johnson Circuit Court setting aside Flink's sentence of probation and imposing a sentence of imprisonment.
ALL CONCUR. BRIEF FOR APPELLANT: Emily Holt Rhorer
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Heather M. Fryman
Assistant Attorney General
Frankfort, Kentucky