Opinion
NO. 2011-CA-001375-MR
02-08-2013
JOHN LOEWEN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Gene Lewter Dept of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky J. Hays Lawson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CRITTENDEN CIRCUIT COURT
HONORABLE C. RENE' WILLIAMS, JUDGE
ACTION NO. 06-CR-00041
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; NICKELL AND STUMBO, JUDGES. ACREE, CHIEF JUDGE: John R. Loewen appeals from the Crittenden Circuit Court's order revoking his probation. He argues the circuit court abused its discretion in entering the order because it ignored the rule introduced in KRS 439.3106 that revocation is permissible only when the violation "constitutes a significant risk to prior victims of the supervised individual or the community at large ... [.]" We agree that the appellant has correctly stated the standard, but conclude that the revocation of his probation comported with the statute. We affirm.
Kentucky Revised Statutes.
I. Facts and procedure
On November 9, 2006, Loewen entered a guilty plea to charges of possession of a controlled substance and possession of drug paraphernalia. He was sentenced to five years' imprisonment and remanded to custody. The circuit court granted Loewen's request for shock probation, KRS 439.265, on March 15, 2007, in conformity with the plea agreement. Loewen's probation was first revoked on February 1, 2010, for violating an emergency protective order (EPO). He was again granted shock probation on August 2, 2010.
The second order of shock probation contained the following relevant conditions: that he not commit another offense and that he avoid injurious or vicious habits.
On July 6, 2011, the Commonwealth requested that Loewen's probation be revoked yet again, based on the affidavit of probation and parole officer Robert Bruch which alleged Loewen had violated the terms of his most recent release. More specifically, Bruch stated Loewen had been convicted of a new misdemeanor offense for writing a cold check in the amount of $43 and that Miranda Tabor, Loewen's former girlfriend, had secured a domestic violence order (DVO) against him.
The circuit judge conducted a hearing at which Bruch testified regarding the DVO and Loewen's latest conviction. The circuit court ordered Loewen's shock probation revoked on July 14, 2011. The probation violations the court identified in the written order were: "Received new misdemeanor conviction" and "Received DVO." This appeal followed.
II. Legal standards
The General Assembly recently enacted a scheme which significantly changed Kentucky's sentencing and probation statutes. Effective June 8, 2011, the legislature established the following standard governing revocation of probation:
Supervised individuals shall be subject to:KRS 439.3106 (emphasis added). Whether an offender's violation of a condition of probation constitutes a significant risk to victims or the community is still a matter left to the discretion of the trial judge; we will not disturb a revocation order absent an abuse of that discretion. See Tiryung v. Commonwealth, 717 S.W.2d 503, 504 (Ky. App. 1986).
(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.
III. Discussion
We must first address Loewen's contention that the only ground for revocation of his probation was the misdemeanor conviction; he claims the DVO was not a basis for the revocation. This assertion is based upon certain comments the circuit judge made on the record. However, these statements are of no consequence. A court speaks through its written orders, and in this case, the order states that both the conviction and the DVO were violations of Loewen's probation. Kindred Nursing Centers Ltd. Partnership v. Sloan, 329 S.W.3d 347, 349 (Ky. App. 2010) ("any findings of fact and conclusions of law made orally by the circuit court ... cannot be considered by this Court on appeal unless specifically incorporated into a written and properly entered order.").
We turn now to Loewen's argument that the circuit court failed to apply KRS 430.3106. Although we agree with Loewen that a single instance of bouncing a $43 check will not normally pose a significant threat to a victim, we cannot conclude that the circuit court abused its discretion in revoking his probation. Entry of a DVO requires a finding by a preponderance of the evidence that the respondent committed an act of abuse that may occur again. KRS 403.750. This most certainly constitutes a threat to the victim and the community and is therefore a sufficient basis under KRS 439.3106 to revoke an offender's probation. There was no abuse of discretion.
For that reason, we affirm the July 14, 2011 order of the Crittenden Circuit Court revoking the probation of John R. Loewen.
STUMBO, JUDGE, CONCURS.
NICKELL, JUDGE, CONCURS AND FILES SEPARATE OPINION.
NICKELL, JUDGE, CONCURRING: Respectfully, I fully concur, but write separately to point out a distinction resulting from enactment of KRS 439.3106. Whereas probation revocation always results in incarceration, under the new statutory scheme, "sanctions other than revocation and incarceration" are now available to redress a violation of the conditions of probation. While I agree that bouncing a single $43.00 check would not normally result in probation revocation, I recognize there are circumstances in which it might be sufficient—such as where the probationer's underlying crime was of a financial nature. When a probationer accepts conditional freedom, and then fails to adhere to the conditions specified—such as not committing a new criminal offense—he must expect consequences. Under the new scheme, those consequences now include not only revocation and incarceration, but also imposition of other appropriate sanctions.
Here, Loewen's second grant of shock probation directed him not to commit another offense and to avoid injurious or vicious habits. He did both, as reflected in the written order revoking probation. He was convicted of writing a cold check, a misdemeanor, but a criminal offense nonetheless, and his girlfriend requested and received a DVO against him. Unlike an EPO, which is issued upon a sworn affidavit, a DVO requires an actual finding that an act of domestic violence occurred and may recur. Loewen's probation was revoked the first time for violation of an EPO. It does not seem a stretch to me to conclude he failed to avoid injurious or vicious habits. Revocation and incarceration were wholly appropriate. BRIEFS FOR APPELLANT: Gene Lewter
Dept of Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
J. Hays Lawson
Assistant Attorney General
Frankfort, Kentucky