Opinion
2023-CA-1061-MR
10-25-2024
ANTHONY LYKINS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Robert C. Yang Frankfort, Kentucky BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Joseph A. Beckett Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM POWELL CIRCUIT COURT HONORABLE LISA HAYDEN WHISMAN, JUDGE ACTION NO. 16-CR-00087
BRIEFS FOR APPELLANT: Robert C. Yang Frankfort, Kentucky
BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Joseph A. Beckett Assistant Attorney General Frankfort, Kentucky
BEFORE: CETRULO, ECKERLE, AND GOODWINE, JUDGES.
OPINION
CETRULO, JUDGE
Anthony Lykins ("Lykins") appeals the August 9, 2023 Powell Circuit Court Order revoking his probation. We affirm because (I) the circuit court judge did not err when she failed to disqualify herself for Lykins's fourth probation revocation hearing; and (II) the circuit court made the statutory findings required by Kentucky Revised Statute ("KRS") 439.3106.
BACKGROUND
On July 11, 2016, Lykins was indicted by the Powell County grand jury for first-degree burglary, theft by unlawful taking, and being a first-degree persistent felony offender ("PFO"). In exchange for dismissal of the PFO charge, Lykins entered a guilty plea in January 2017, and the court sentenced him to ten years in prison, probated for five years. The terms of his probation were (1) "not to violate any local, state, or federal law"; (2) "not to consume any alcohol or illegal drugs"; (3) to refrain from "illegal use of alcohol or controlled substances"; and (4) to "make all scheduled court appearances[.]"
In February 2017, Lykins failed to report to probation and parole, and his probation and parole officer filed a violation of supervision report. A bench warrant was issued and served. In August 2017, the circuit court held Lykins's first revocation hearing, and he stipulated to absconding supervision. The court amended his probation by ordering Lykins to serve 60 days in jail, and then returned him to the previous terms of probation.
In August 2018, Lykins again failed to report to probation and parole. Another warrant was issued in April 2019. That warrant was not served until January 2020, when Lykins was finally apprehended. That February, Lykins stipulated he absconded and violated the terms of his probation. The circuit court again amended his probation by ordering him to serve six months in jail, and then releasing him under previous probation conditions. Up to this point, Lisa Whisman served as Lykins's appointed counsel in her capacity as a defense attorney with the Department of Public Advocacy ("DPA").
In July 2021, Lykins was charged with first-degree strangulation and fourth-degree assault in Fayette County. On July 19, 2021, a bench warrant for a probation violation was issued, which was served on July 21. In August 2021, Judge Whisman (Lykins's former attorney) presided over his first appearance for the third probation revocation hearing, and she appointed a new public defender to represent him. On September 8, 2021, Lykins stipulated to the probation violations; Judge Whisman amended his probation with credit for time served; and Lykins was returned to supervision.
On September 28, 2021, probation and parole filed another violation of supervision report because Lykins had "failed to report [his] change of address[,]" "concealed his whereabouts from [the probation officer]," and absconded. A warrant was issued in early October 2021, but the authorities did not apprehend Lykins until April 14, 2023 in Estill County. Lykins was also arrested for second-degree fleeing or evading police, resisting arrest, and disorderly conduct in Estill County. As part of that arrest, he took a drug test and tested positive for marijuana and suboxone. A fourth probation revocation hearing took place on August 9, 2023, and the circuit court revoked Lykins's probation. At the close of that hearing, the circuit court gave a detailed statement regarding its reasons for revoking Lykins's probation. This appeal followed. Additional facts are inserted as necessary.
STANDARD OF REVIEW
Lykins concedes that he failed to preserve his first assignment and asks that we review it for palpable error pursuant to Kentucky Rule of Criminal Procedure ("RCr") 10.26, which states:
A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.
An error is palpable "only if it is clear or plain under current law." Lainhart v. Commonwealth, 534 S.W.3d 234, 237 (Ky. App. 2017) (citation omitted). Palpable errors affect a party's substantial rights "only if it is more likely than ordinary error to have affected the judgment." Id. Therefore, we must determine whether "there is a 'substantial possibility' that the result in the case would have been different without the error." Id. (quoting Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006)).
"A decision to revoke probation is reviewed for an abuse of discretion." Commonwealth v. Andrews, 448 S.W.3d 773, 780 (Ky. 2014) (citing Commonwealth v. Lopez, 292 S.W.3d 878, 881 (Ky. 2009)). "Under our abuse of discretion standard of review, we will disturb a ruling only upon finding that 'the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.'" Id. (quoting Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).
ANALYSIS
On appeal, Lykins asserts that (I) Judge Whisman committed palpable error by failing to sua sponte disqualify herself; and (II) erred by failing to make findings required by KRS 439.3106.
I. Judge Whisman Did Not Err by Failing to sua sponte Disqualify Herself.
Lykins contends that, pursuant to KRS 26A.015, Judge Whisman should have sua sponte disqualified herself from presiding over his fourth probation revocation hearing. Lykins argues that Judge Whisman should not have presided over that hearing because she acted as his legal counsel from the time he was arraigned through his second revocation hearing.
Conversely, the Commonwealth argues that because Lykins never sought her disqualification, he failed to preserve the issue and Judge Whisman committed no error for us to review. We do not find that Judge Whisman committed error.
"Once brought to the attention of the judge or justice, compliance with KRS 26A.015(2)[] is mandatory." Commonwealth v. Carter, 701 S.W.2d 409, 411 (Ky. 1985). In pertinent part, KRS 26A.015(2) states:
While the discussion in Carter revolved around KRS 26A.015(2)(b), we believe the obligatory nature of the rule applies equally to all parts of KRS 26A.015(2). See generally Carter, 701 S.W.2d 409.
Any justice or judge of the Court of Justice or master commissioner shall disqualify himself in any proceeding:
(a) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceedings, or has expressed an opinion concerning the merits of the proceeding;
(b) Where in private practice or government service he served as a lawyer or rendered a legal opinion in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter in controversy, or the judge, master commissioner or such lawyer has been a material witness concerning the matter in controversy;
....
(e) Where he has knowledge of any other circumstances in which his impartiality might reasonably be questioned.KRS 26A.015(2). Here, there is no question that Judge Whisman's prior representation of Lykins brought her within the scope of KRS 26A.015(2)(b).
Our Supreme Court has held that when "[a] party relies upon the failure of any justice or judge of the Court of Justice to disqualify himself under the provisions of KRS 26A.015(2)[], it must appear from the record, either by motion or otherwise, that [the judge] was apprised of his connection with the matter in controversy." Carter, 701 S.W.2d at 411. Because Lykins never brought the issue to her attention, we must determine whether Judge Whisman "was apprised of [her] connection" with Lykins's case. See id.
Nothing in the record indicates that Judge Whisman had "a personal bias or prejudice concerning" Lykins. See KRS 26A.015(2)(a). Nor does the record indicate that she had "expressed an opinion concerning the merits" of the probation revocation hearing. See id. Likewise, the record does not indicate that Judge Whisman remembered her earlier representation of Lykins in the underlying matter, nor that she had "knowledge of any other circumstances in which [her] impartiality might [have been] reasonably [] questioned." See Carter, 701 S.W.2d at 411; see also KRS 26A.015(2)(e).
In fact, Judge Whisman can be heard during the fourth revocation hearing questioning whether she had presided over Lykins's third revocation hearing. There is no indication she recalled representing him when he pled guilty to the initial charges or during his first two revocation hearings. The last time the judge had represented Lykins, i.e., his second probation revocation hearing, occurred three and a half years prior to the fourth probation revocation hearing.
If Lykins had filed a motion for Judge Whisman's disqualification during either of the hearings over which she presided, then her "compliance with KRS 26A.015(2)(b) [would have been] mandatory." See Carter, 701 S.W.2d at 411. However, Lykins never filed such a motion and did not raise the argument until this appeal.
Lykins insists that his case is similar to Small v. Commonwealth, 617 S.W.2d 61 (Ky. App. 1981). In Small, the judge who presided over the defendant's probation revocation hearing had been the prosecutor who recommended the defendant's original sentence. Id. at 62. On appeal, this Court held that the judge should have disqualified himself because he previously participated in the plea bargaining of the original sentence. Id. at 63. Strictly applying KRS 26A.015(2), this Court remanded for a new probation revocation hearing. Id. However, more recent precedent has since imposed a burden not established in Small, and that burden is fatal to Lykins's case. In Small, we stated that whether the judge remembered his participation in the defendant's prosecution was "irrelevant." 617 S.W.2d at 63. Four years later, in Carter, our Supreme Court analyzed our analysis in Small and contradicted this statement. See Carter, 701 S.W.2d at 410.
In Carter, the Court said that "[a]lthough . . . waiver may be properly made as indicated [in Small], it is our opinion that proper procedure would be to place the burden of disqualification on the defendant who may belatedly contend that he was prejudiced, rather than upon the judge." 701 S.W.2d at 410. The Court went on to say it was "cognizant that numerous trial and appellate judges and justices have roots which are embedded in the soil of the offices of Commonwealth Attorney and County Attorney." Id. Likewise, as is the case here, we are cognizant that many judges likely have roots in the DPA offices. Here, Judge Whisman had previously defended Lykins, not prosecuted him.
We think this case shares similarities with Poorman v. Commonwealth, where Judge West found herself in a position like that of Judge Whisman. 782 S.W.2d 603 (Ky. 1989). In Poorman, Judge West acted as the district court judge in the underlying matter with the defendant ("Poorman"). Id. at 604. She subsequently joined this Court and was assigned to Poorman's appellate panel and present at oral arguments. Id. Judge West did not remember her earlier involvement in Poorman's case until oral arguments, and, even then, Poorman did not request for her to disqualify herself. Id.
Our Supreme Court granted discretionary review to decide whether KRS 26A.015(2) required Judge West to sua sponte disqualify herself at oral arguments. Id. Ultimately, the Court did not find that the situation necessitated sua sponte disqualification. Id. at 606. Additionally, the Court stated, "although we do not assume appellant's counsel 'waived' recusal as stated in the Commonwealth's response, it is reasonable to assume from the absence of a request to disqualify that counsel preferred that Judge West remain on the case." Id. (emphasis in original). Additionally, the Court said "[i]t may well be that [Poorman's] counsel was satisfied that his client's cause was not prejudiced by Judge West's further participation, and only changed his mind after the decision affirming the conviction." Id.
Similarly, nothing in our record indicates that Lykins took issue with Judge Whisman presiding over his probation revocation hearings, until he received an unfavorable outcome and first raised the issue on this appeal. The record reflects that Judge Whisman presided over his third probation revocation hearing, and she released Lykins under his previous probation terms. Lykins never requested that the judge disqualify herself in that hearing nor did he appeal its result. As Lykins failed to meet his burden, we find no error, palpable or otherwise. See Carter, 701 S.W.2d at 410-11.
II. The Circuit Court Made Adequate Findings to Support Probation Revocation, and Those Findings are Supported by the Record.
Lykins argues that the circuit court erred because its finding that Lykins's conduct constituted a significant risk to prior victims or the community at large was merely perfunctory and unsupported by evidence in the record. Conversely, the Commonwealth argues that the circuit court based its decision to revoke Lykins's probation on reliable facts in the record, which were adequate to make the finding required by KRS 439.3106. We do not find that the circuit court erred.
We note that the parties dispute whether Lykins preserved his KRS 439.3106 error for appeal and, thus, whether we should review the error. In conformity with RCr 10.26, Lykins's reply brief requests that we review for palpable error if we find that he failed to preserve the issue. Because we find that the circuit court did not err, we do not address the preservation dispute further.
To revoke probation "[t]here must be proof in the record established by a preponderance of the evidence that a defendant violated the terms of his release and the statutory criteria for revocation has been met." Walker v. Commonwealth, 588 S.W.3d 453, 457 (Ky. App. 2019) (quoting Helms v. Commonwealth, 475 S.W.3d 637, 645 (Ky. App. 2015)). Further, "KRS 439.3106(1)(a) requires a court to make two findings before revoking probation: 1) the supervised individual must be 'a significant risk to prior victims . . . or the community at large'; and 2) the supervised individual 'cannot be appropriately managed in the community[.]'" Kendrick v. Commonwealth, 664 S.W.3d 731, 734 (Ky. App. 2023).
"[W]e cannot affirm the revocation of probation simply because the revocation order contains the requisite statutory findings. A revocation unsupported by evidence of record would not be 'within the range of permissible decisions allowed by a correct application of the facts to the law.'" Id. at 735 (quoting McClure v. Commonwealth, 457 S.W.3d 728, 730 (Ky. App. 2015)). However, while the court must make the required statutory findings as supported by the record, the court does not need to provide "detailed explanations" for the findings. Id. (citation omitted).
As a threshold matter, there is no question that Lykins violated the terms of his probation. The terms of his probation were (1) not to violate any local, state, or federal law; (2) not to consume any alcohol or illegal drugs; (3) no illegal use of alcohol or controlled substances; and (4) to make all scheduled court appearances. He violated every one of these terms when he failed to report his change of address, concealed his whereabouts from the probation officer, absconded, evaded the authorities for a year and a half, and then, when the authorities finally located him, fled or evaded the police, resisted arrest, and subsequently tested positive for marijuana and suboxone. Lykins admitted that he violated the terms of his probation. Lykins also admitted that the reason he absconded again was because he was scared of facing additional consequences that stemmed from his Fayette County arrest.
At the close of Lykins's fourth revocation hearing, the circuit court addressed Lykins and stated that she needed to find "whether [she] [felt] that [Lykins] [could] be managed in the community and whether [Lykins] [was] a danger to [himself] or others." The circuit court then said:
The number one rule is you got to show up. You know? You could be the most perfect citizen of the year, but if you don't report to probation and parole, you're not showing up. And they have no idea how good you're doing. And we love to hear the good as well as the bad. So, we love to hear that people are working and that people are you know doing different things and in recovery and things like that, and we celebrate those things. But if you don't report we don't know that. Just like we don't know when you're doing drugs or when you're out here committing crimes that you're maybe not getting caught for or things like that.... ....
. . . But what I cannot ignore was that you were just before this court you know, and I don't remember the terms of the strangulation charge or the situation or anything like that, all I can look at is the file and say that it was a partial, you were given credit time served, and you were released back to supervision. Which is pretty much, as a lot of people like to say, a slap on the wrist, and you didn't show up from the get-go. That is what I cannot ignore. I mean if I should have had anybody's attention at that point, I should have had yours. And, the fact that I didn't, you know, and I commend you for working on Ms. Murphy's house, doing all this, and working and working HVAC, lord knows we need a lot of those people, but you're not showing up, and you knew you didn't show up, and you knew why you didn't show up, but that was a decision that you made. And so, you have to face the consequence. So, I do find that . . . you cannot be managed in the community based for the information that I just said and I will revoke your probation, sentence you to ten years. Mr. Lykins I'm not happy about it. I don't think . . . I have any other choice though.
The circuit court mentioned the "significant risk" element of KRS 439.3106 at the beginning of its closing statement and mentioned the "managed in the community" element at the beginning and end. The circuit court outlined the facts that satisfied these elements throughout its statement. Those facts are supported by the record, and Lykins had previously absconded on two other occasions. Subsequently, the circuit court filled out the field in the preprinted form that recited the statutory language in KRS 439.3106.
Lykins contends that his case is similar to the Walker and Helms cases, but he misplaces his reliance on these cases. First, in Walker we remanded because the lower "court did not include any other findings, other than the conclusory statements on the preprinted forms, related to the criteria in KRS 439.3106(1)." 588 S.W.3d at 459. Here, while the circuit court did fill out the preprinted forms, the court's oral statement also mentioned the statutory criteria, elucidated the facts that met those criteria, and confirmed those facts were supported by the record.
In Helms, we remanded when Helms's "one-time drug use and technical violations of the conditions of his diversion" resulted in revocation of his pre-trial diversion. 475 S.W.3d at 645. The Helms court went on to say that "because there is a complete lack of evidence in the record that [the defendant] is a danger to a prior victim or to the community and he cannot be appropriately managed in the community, the decision to void the diversion agreement . . . was an abuse of discretion." Id. (emphasis added). Unlike Helms, we are not discussing Lykins's first, second, or third probation violation/revocation hearing; we are discussing his fourth. Further, the circuit court had a plethora of evidence in the record that supported the statutory findings. Finally, KRS 439.3106(1) does not mandate the circuit court to supply additional details for its findings, as long as the findings are made and supported by the record. See Kendrick, 664 S.W.3d at 735. Thus, the circuit court satisfied the requirements of KRS 439.3106.
CONCLUSION
For the foregoing reasons, we AFFIRM the Powell Circuit Court Order revoking Anthony Lykins's probation.
ALL CONCUR.