Opinion
NO. 2015-CA-001620-MR
01-27-2017
DON HELTON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Robert C. Yang Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky J. Todd Henning Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARLAN CIRCUIT COURT
HONORABLE KENT HENDRICKSON, JUDGE
ACTION NO. 13-CR-00071 OPINION
AFFIRMING
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BEFORE: CLAYTON, DIXON, AND D. LAMBERT, JUDGES. CLAYTON, JUDGE: Appellant, Don Helton, appeals the Harlan Circuit Court order revoking his probation. He argues that the trial court abused its discretion when it found that he was a risk to, and could not be managed in, the community. For the foregoing reasons, we affirm.
In March of 2014, Helton pleaded guilty to third-degree burglary, theft by unlawful taking over $500, second-degree criminal mischief, and public intoxication. On June 6, 2014, the trial court sentenced Helton to a total of ten years' imprisonment, which it then probated for five years. Helton's probation was conditioned upon the successful completion of the Drug Court program, lawful behavior, and payment of restitution. Within the Drug Court program, Helton was required to abstain from drug and alcohol use and attend meetings.
Helton received a sentence of five years for third-degree burglary, five years for theft by unlawful taking over $500, ninety days for second-degree criminal mischief, and ninety days for public intoxication. The five year sentences were ordered to run consecutively for a total of ten years' imprisonment. The ten year sentence was ordered to run concurrently with the two ninety day sentences.
Prior to Helton pleading guilty to the charges, the trial court entered an order, on September 3, 2013, referring him to the Drug Court Program. On May 29, 2014, while out on bond awaiting final sentencing, Helton was sanctioned by the Drug Court and ordered to spend ten days in jail.
Eleven days later, on June 17, 2014, Helton was sanctioned by the Drug Court for a positive drug screen and ordered to spend fifteen days in jail. Helton was again sanctioned for a positive drug screen on July 3, 2014 and October 20, 2014, and ordered to serve seven and three days, respectively. In the interim, Helton was ordered to report to Crossroads Rehabilitation Center in Corbin, Kentucky, so that he could complete a ninety-day rehabilitation program. Helton entered the program but was eventually discharged for a positive drug screen.
In December 2014, Helton was sent to jail as a sanction for missing an Intensive Outpatient Program session. He was discharged from the Drug Court program December 29, 2014, as a result of his being dismissed from Crossroads Rehabilitation center, not completing the Intensive Outpatient Program, and being found with a drug screen adulterant.
Helton was found in possession of Efferdent Denture Cleanser, which is apparently used to dilute drug samples.
The Commonwealth subsequently moved to revoke Helton's probation due to his termination from Drug Court. A hearing was held on July 16, 2015, at which probation officer, Sheila Luttrell, testified to the various violations and sanctions listed above. Helton took the stand after Luttrell and began to testify as to his history of drug addiction and mental illness; however, the trial court abruptly stopped Helton's testimony and continued the hearing to August 6, 2015, so that Helton could obtain medical reports. After several more hearings, at which the parties argued whether, due to his mental health issues, Helton should be sent to jail or to rehabilitation, the trial court finally made a decision.
Helton testified that he had been diagnosed with schizophrenia and manic depressive bipolar disorder.
On October 1, 2015, the trial court ordered Helton's probation revoked. In revoking his probation the trial court found that Helton "has demonstrated a pattern of failure to comply with the conditions of his probation and that such a failure of compliance constitutes a significant risk to both himself and to the community at large, and cannot be appropriately managed in the community." Helton was remanded to the Department of Corrections to serve out the remainder of his ten-year sentence. He now appeals as a matter of right.
A trial court's decision to revoke probation is reviewed under the abuse of discretion standard. Under that standard, we will disturb a ruling only upon finding that "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, Helton argues that the trial court abused its discretion when it revoked his probation. Specifically, he argues that the record does not support the trial court's conclusion that he is a risk to the community, or its conclusion that he cannot be managed within the community. Kentucky Revised Statutes (KRS) 439.3106 was enacted as part of the 2011 Corrections Reform Bill HB 463 and went into effect on June 8, 2011. The statute provides as follows:
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.
The Supreme Court of Kentucky recently considered that application of KRS 439.3106 for the first time in Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014). In Andrews, the Court held that a trial court is required to make express findings, with respect to KRS 439.3106, before it may revoke a probationer's probation. Id. at 780. Specifically, a trial court must find that "the probationer both poses a risk and is not manageable in the community." Id. at 779-80. While the Court held that findings under KRS 439.3106 are mandatory, it emphasized that the statute does not "upend the trial court's discretion in matters of probation revocation, provided that discretion is exercised consistent with statutory criteria." Id. at 780.
In McClure v. Commonwealth, 457 S.W.3d 728 (Ky. App. 2015), we reviewed a probation revocation decision in light of the Supreme Court's holding in Andrews. In McClure, the probationer was sanctioned for failing a drug screen and subsequently revoked when he was later found to be in possession of a syringe used to dilute another drug screen. We found that those facts were sufficient to support the trial court's express finding that the probationer posed a risk to prior victims or the community at large. Our court decided that while evidence in the record supported that McClure could not be managed in the community, the case was remanded for the court's failure to make a finding on this issue. We noted that the KRS 439.3106(1) does not "require a probationer to commit some heinous act before he can be found to be a risk [to the community]." Id. at 733.
We find here that the record supports the trial court's express finding that Helton poses a risk to the community and that he cannot be managed within the community. Before he was dismissed from the Drug Court program, Helton failed multiple drug screens and was sanctioned multiple times. Despite being sanctioned with jail time on each instance, Helton continued to use illegal drugs. He was finally kicked out of Drug Court for possessing Efferdent—an adulterant of drug screens.
It was not unreasonable for the trial court to conclude that Helton, who continued to use drugs and attempted to alter his drug screens under penalty of ten years in prison, posed a risk to the community if he was allowed to continue probation. After all, he was in the community when he continued to obtain, use, and be under the influence of illegal drugs. The trial court was not required to wait until Helton, while high on drugs, committed some heinous criminal act before it revoked his probation.
Additionally, after Helton's multiple failed drug screens, it was absolutely reasonable for the trial to conclude that Helton could not be managed within the community. Helton was given multiple opportunities to comply with the conditions of his probation, but proved over and over again that he was unable to do so.
Because the record supports the trial court's conclusion that Helton was a risk to the community, and could not be managed within the community, the trial court's decision to revoke Helton's probation was neither arbitrary, unfair, unreasonable, nor unsupported by legal principles. Accordingly, we hold that the trial court did not abuse its discretion when it revoked Helton's probation.
Helton also asserts that a dual-treatment facility would be more effective and less expensive, and therefore the trial court abused its discretion when it revoked his probation. We disagree.
A facility that treats both drug addiction and mental health issues. --------
Rehab may indeed be less expensive than jail. However, we will not overturn the decision of the trial judge absent an abuse of discretion. The record indicates that the trial court, over the course of several hearings, carefully considered sending Helton to a treatment facility before it ultimately concluded that Helton and the community would be best served if Helton were with the Department of Corrections. Helton's argument to the contrary notwithstanding, we cannot say that the trial court's decision to send Helton to jail rather than rehab was arbitrary or unreasonable.
For the foregoing reasons, the order of the Harlan Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Robert C. Yang
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky J. Todd Henning
Frankfort, Kentucky