Opinion
NO. 2018-CA-000543-MR
05-24-2019
BRIAN D. JACKSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Linda Roberts Horsman John Landon Assistant Public Advocates Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BALLARD CIRCUIT COURT
HONORABLE TIMOTHY A. LANGFORD, JUDGE
ACTION NO. 16-CR-00030 OPINION
AFFIRMING IN PART AND VACATING IN PART
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BEFORE: TAYLOR, K. THOMPSON AND L. THOMPSON, JUDGES. THOMPSON, L., JUDGE: Brian D. Jackson ("Appellant") appeals from a Final Judgment and Revocation of Probation entered by the Ballard Circuit Court. Appellant argues that the Court erred in revoking his probation, concluding that he could not be effectively managed in the community in lieu of revocation, and improperly ordering him to pay jail fees. For the reasons stated below, we AFFIRM the Judgment on the issue of revocation and VACATE the imposition of jail fees.
On May 6, 2016, Appellant was indicted on one count each of possession of drug paraphernalia, possession of a controlled substance, possession of marijuana, possession of synthetic drugs, public intoxication and illegal possession of a legend drug. On July 15, 2016, he entered a guilty plea on marijuana, paraphernalia and controlled substance charges, with the remainder being dismissed. The Court sentenced Appellant to three years in prison, with the sentence being probated. One of the conditions of probation was ongoing drug tests. At the time of sentencing, Appellant acknowledged that he could not pass a drug test. As such, the Court delayed the next drug test to August 11, 2016.
Appellant failed to appear for the August 11, 2016 drug test as ordered by the Circuit Court. On September 27, 2016, a Notice of Revocation Hearing was entered. Three days later, Appellant appeared in open court and the Court revoked his probation. Appellant began serving his sentence, and on November 18, 2016, the Court entered an Order granting Appellant shock probation.
Sometime after his release, Appellant moved to Missouri where he came under the supervision of Missouri probation authorities. On February 2, 2018, the Division of Probation and Parole filed a Violation of Supervision Report with the Ballard Circuit Court stating that Appellant failed to complete Re-entry Programming and failed to routinely attend substance abuse treatment classes. He was arrested in February of 2018, and a revocation hearing was conducted on March 2, 2018.
At the revocation hearing, testimony was adduced that Appellant was supervised in Missouri and had absconded from supervision by failing to report to the probation office since October 24, 2017. Kentucky Probation and Parole Officer Delissa Fraser testified that Appellant also failed to report on November 30, 2017, after finishing a series of "Pathway to Change" classes, and that several letters and a post card were sent to his last known addresses in Missouri and Kentucky. In January of 2018, Kentucky Probation and Parole mailed Appellant a letter allowing him to make up any missed appointments. An officer called Appellant's phone, which was no longer working, and visited his last known residence in addition to his aunt's residence—all to no avail. Appellant testified that Missouri authorities told him that he would be assigned a new probation officer because his original Missouri officer was retiring, that he was waiting for them to do so when he was arrested, and that he had signed an attendance sheet outside the "Pathway to Change" classes. He did acknowledge that he could have been more proactive in locating his new probation officer.
At the conclusion of the hearing, the Ballard Circuit Court determined that Appellant had absconded from supervision since October 24, 2017, that there were no alternatives to revocation and that Appellant's violations constituted a substantial risk to the community. The Court imposed Appellant's original three-year sentence, minus time served. It also ordered that Appellant pay the cost of transporting him from Cape Girardeau, Missouri to Ballard County, Kentucky, and to pay $22 per day for the 22 days he was lodged in the Ballard County jail for a total of $543.63. This appeal followed.
Appellant first argues that the Ballard Circuit Court committed reversible error in concluding that he could not be effectively managed in the community. After directing our attention to Kentucky Revised Statute ("KRS") 439.3106, Appellant maintains that the trial court made no findings that he could not be appropriately managed and was a danger to the community, as there was no proof of same. He also asserts that the Court improperly relied on the hearsay word of an unknown probation authority in Missouri, that the only credible testimony was his own statement that he attended classes and signed in, and that he was waiting to learn the identity of his new probation officer when he was wrongfully arrested.
KRS 439.3106 states,
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 Court's decision to revoke probation is discretionary and will be overturned only if the decision constituted an abuse of discretion. Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014). Abuse of discretion is found if the decision is arbitrary, unreasonable, unfair or unsupported by sound legal principles. Id. Stated differently, the decision to revoke probation constitutes an abuse of discretion if it is not within the wide range of permissible decisions allowed by a correct application of the law to the facts. McClure v. Commonwealth, 457 S.W.3d 728, 730 (Ky. App. 2015).
In examining this issue, the Ballard Circuit Court produced a written finding that Jackson violated the terms of his probation by absconding from supervision. This finding was supported by two Violation of Supervision Reports filed in October 2017 and February 2018, by Kentucky Probation and Parole Officer Delissa Fraser. The reports established that Appellant had not reported to the Missouri Probation Office since October 24, 2017. Further evidence was adduced that probation authorities attempted to contact Appellant on at least five occasions and offered him the opportunity to return to "Pathway to Change" to make up any missed appointments. In support of the determination that alternatives to revocation were not applicable, the Court found that Appellant already had lesser sanctions imposed. The Court concluded from the foregoing that Appellant constituted a significant risk and could not be managed in the community.
The question for our consideration is whether the Ballard Circuit Court's decision to revoke Appellant's probation was arbitrary, unreasonable, unfair or unsupported by sound legal principles, Andrews, supra, or outside the wide range of permissible decisions allowed by a correct application of the law to the facts. McClure, 457 S.W.3d at 730. We must answer this question in the negative. The decision to revoke Appellant's probation was based on evidence of record that he absconded from probation and lost contact with probation authorities despite the authorities' repeated attempts to reestablish contact. Further, his absconding demonstrated that there was no alternative to revocation since community management had been proven unsuccessful. Based on the totality of the record and the law, we find no error in the Ballard Circuit Court's decision to revoke Appellant's probation.
Appellant next argues that the Circuit Court erred in ordering him to pay jail fees. He contends that while KRS 441.265(1) requires the sentencing court to order reimbursement to a county jail for the cost of confinement up to $50 per day, the reimbursement rate must be based on a county-established reimbursement policy. Appellant argues that Ballard County has no reimbursement policy; therefore, the Ballard Circuit Court had no basis for ordering the payment of jail fees. He acknowledges that this issue was not preserved but requests palpable error review. Kentucky Rules of Criminal Procedure (RCr) 10.26; Grigsby v. Commonwealth, 302 S.W.3d 52, 54 (Ky. 2010).
We find persuasive the Kentucky Supreme Court's unpublished opinion in Weatherly v. Commonwealth, 2017-SC-000522-MR, 2018 WL 4628570 (Ky. App. September 27, 2018). In Weatherly, the Appellant was ordered to pay $22 per day for the 69 days he spent in the Fulton County jail. As in the matter before us, the Weatherly Appellant argued that jail fees could not be imposed because no proof was adduced that Fulton County had established a jail fee reimbursement policy pursuant to statute. In addressing this argument, the Weatherly Court stated as follows:
"[U]npublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court." Kentucky Rules of Civil Procedure (CR) 76.28(4)(c). Unpublished opinions may be cited by the Court as persuasive. Estate of Wittich By and Through Wittich v. Flick, 519 S.W.3d 774, 779 (Ky. 2017).
KRS 441.265 states, in pertinent part:
(1) A prisoner in a county jail shall be required by the sentencing court to reimburse the county for expenses incurred by reason of the prisoner's confinement as set out in this section, except for good cause shown.
(2)(a) The jailer may adopt, with the approval of the county's governing body, a prisoner fee and expense reimbursement policy, which may include, but not be limited to, the following:
1. An administrative processing or booking fee;
2. A per diem for room and board of not more than fifty dollars ($50) per day or the actual per diem cost, whichever is less, for the entire period of time the prisoner is confined to the jail;
3. Actual charges for medical and dental treatment; and
4. Reimbursement for county property damaged or any injury caused by the prisoner while confined to the jail.
Weatherly contends that the jail fees were an illegal fine because there was no proof Fulton County had established a jail fee reimbursement policy pursuant to the statute and no proof of the actual cost of confinement. The Commonwealth counters that Weatherly's assertion of the need for such proof is not supported by any statutory or case law precedent.
We agree with Weatherly. This Court very recently held that when the county has not set forth an approved reimbursement policy for jail costs, the trial court cannot
assign a per diem fee for prisoners. Melton v. Commonwealth, 2016-SC-000552-MR, 2018 WL 898307, *1, *12 (Ky. Feb. 15, 2018). From the record, there is no evidence that Fulton County had established a jail fee reimbursement policy pursuant to statute, and no evidence that such policy was ever presented to the trial court to be considered in sentencing. Therefore, we vacate the $1,513 in jail fees.
Similarly, in the matter before us, the record does not reveal that Ballard County established a jail fee reimbursement policy pursuant to statute, nor that such a policy was presented to the trial court to be considered in sentencing. In response to Appellant's argument, the Attorney General does not contend that a policy was established by the County and relied upon by the Court, instead asserting that Appellant waived this argument with his tacit acceptance of court costs and fees at the hearing and sentencing.
Weatherly is persuasive, and we apply its reasoning herein. No proof was tendered that the imposition of jail fees was based on an established jail fee reimbursement policy. Accordingly, we VACATE that portion of the judgment regarding the imposition of jail fees, and in all other respects AFFIRM the Final Judgment and Revocation of Probation entered by the Ballard Circuit Court.
The underlying case upon which Weatherly was grounded, namely Melton v. Commonwealth, 2016-SC-000552-MR, 2018 WL 898307, (Ky. Feb. 15, 2018), was rendered prior to the revocation hearing and Judgment at issue. As such, there is no issue regarding the retroactive application of the principle set out in Weatherly. --------
ALL CONCUR. BRIEFS FOR APPELLANT: Linda Roberts Horsman
John Landon
Assistant Public Advocates
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky