Opinion
NO. 2015-CA-000919-MR
04-08-2016
DUSTIN L. NORTON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Kathleen K. Schmidt Jason A. Hart Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Jeffrey Ray Prather Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM RUSSELL CIRCUIT COURT
HONORABLE VERNON MINIARD, JR., JUDGE
ACTION NOS. 09-CR-00075, 11-CR-00128 & 14-CR-00105 OPINION
REVERSING AND REMANDING BEFORE: DIXON, D. LAMBERT, AND MAZE, JUDGES. DIXON, JUDGE: Appellant, Dustin Norton, appeals from an order of the Russell Circuit Court revoking his probation and sentencing him to ten-years' imprisonment. For the reasons set forth herein, we reverse and remand to the trial court for further proceedings.
In July 2011, Norton pled guilty in the Russell Circuit Court to receiving stolen property over $500 and was sentenced to five-years' imprisonment, probated for a period of five years. Subsequently, in November 2011, Appellant pled guilty to two additional counts of receiving stolen property over $500. He was sentenced to five-years' imprisonment on each count to run concurrently with each other and consecutively to the prior July 2011 sentence, for a total of ten-years' imprisonment. Again, the sentences were probated for a period of five years.
On April 30, 2015, the Commonwealth filed a motion to revoke Appellant's probation for violations including (1) failure to report to his probation officer, (2) two counts of altering or attempting to alter the results of a drug screen, (3) being arrested for fourth-degree assault, and (4) testing positive for methamphetamine, marijuana, and suboxone. Following a hearing, the trial court entered an order on May 15, 2015, revoking Appellant's probation and sentencing him to ten-years' imprisonment. This appeal ensued.
Appellant's sole argument on appeal is that the trial court erred in failing to consider alternative sanctions pursuant to KRS 439.3106 before revoking his probation. The Commonwealth concedes that the trial court did not make the statutory findings required by KRS 439.3106, but argues that the trial court previously considered other sanctions, as it had imposed such for Appellant's prior probation violations. Accordingly, the Commonwealth argues that the trial court acted within its discretion in revoking Appellant's probation. We must disagree.
Appellant's previous probation violations are not the subject of this appeal. However, the record reveals that his first violation resulted in him being held in contempt and incarcerated for 120 days. Following his second violation, Appellant was allowed to go to in-house rehabilitation. --------
We review a trial court's decision revoking a defendant's probation for an abuse of discretion. See Miller v. Commonwealth, 329 S.W.3d 358, 359-60 (Ky. App. 2010). 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." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Enacted in 2011 as part of the Public Safety and Offender Accountability Act, commonly referred to as HB 463, KRS 439.3106 provides:
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 Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014), the Kentucky Supreme Court first analyzed KRS 439.3106 and unequivocally held that "KRS 439.3106 must be considered [by the trial court] before probation may be revoked." Id. at 778-79. The Court recognized that House Bill 463, and in particular KRS 439.3106, altered the legal landscape related to probation revocation in that prior to HB 463, a trial court could revoke probation at any time "prior to the expiration or termination of the period of probation" if the probationer violated a condition of probation. Id. at 777 (quoting KRS 533.020(1)). A trial court's decision to revoke probation would not amount to an abuse of discretion if there was evidence "to support at least one probation violation." Lucas v. Commonwealth, 258 S.W.3d 806, 807-08 (Ky. App. 2008). However, "[w]ith the enactment of HB 463, the legislature adopted a sentencing policy intended to 'maintain public safety and hold offenders accountable while reducing recidivism and criminal behavior and improving outcomes for those offenders who are sentenced.'" Andrews, 448 S.W.3d at 776 (quoting KRS 532.007(1)). Part of this policy included the use of graduated sanctions and satisfaction of conditions precedent to revoking probation. Id. at 776-77. The Court noted:
Under the 2011 statutory reform, when a probationer appears before the trial court because he has failed to comply with the terms of probation and the probation officer has determined that graduated sanctions are inappropriate, KRS 439.3106 must be considered before probation may be revoked. If the court's order of probation was silent as to the imposition of graduated sanctions, the statute nevertheless applies upon consideration of probation revocation. By requiring trial courts to determine that a probationer is a danger to prior victims or the community at large and that he/she cannot be appropriately managed in the community before revoking probation, the legislature furthers the objectives of the graduated sanctions scheme to ensure that probationers are not being incarcerated for minor probation violations.Andrews, 448 S.W.3d at 778-79.
Importantly, however, the Andrews Court further stated that "[w]hile HB 463 reflects a new emphasis in imposing and managing probation, it 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 a subsequent opinion by a panel of this Court, McClure v. Commonwealth, 457 S.W.3d 728, 731-32 (Ky. App. 2015), we explained,
In Andrews, the Supreme Court outlined the "schema" it believed the General Assembly intended to construct with HB 463 and KRS 439.3106, et seq. The Court surmised that "application of KRS 439.3106(1) allows the trial court to conclude with some certainty that the imposition of some other accountability measure would be fruitless, as the probationer both poses a risk and is not manageable in the community." In other words, the General Assembly intended the task of considering and making findings regarding the two factors of KRS 439.3106(1) to serve as the analytical precursor to a trial court's ultimate decision: whether revocation or a lesser sanction is appropriate.
Within this "schema," as the Supreme Court called it, KRS 439.3106 permits, but does not require, a trial court to employ lesser sanctions; and, as even McClure concedes on appeal, incarceration remains a possibility. The elective language of the statute as a whole creates an alternative employed and imposed at the discretion of the trial court—discretion the Supreme Court insisted the trial court retained in light of the new statute. Andrews at 780. Nothing in the statute or in the Supreme Court's interpretation of it requires the trial court to impose lesser sanctions prior to revoking probation.
Although the trial court herein was not required to impose lesser sanctions prior to revoking Appellant's probation, the trial court was required to make the statutory findings that he was a significant risk to, and unmanageable within, his community. Thus, as the Court did in Andrews, we must look to both the written and video record for evidence whether the trial court "specifically considered the criteria in KRS 439.3106[.]" Andrews at 780.
At the conclusion of the revocation hearing, the trial court commented,
I don't find him [Norton] credible in anything he said. He violated, he has already been to, his, he's had his chance at going to rehab, and he . . . found a way to get out of that. He was untruthful, there, and . . . I don't believe rehab would help him, no matter how many times we send him to rehab, and I am going to revoke his probation and institute, I think it's a 10-year sentence.Further, the written order contains nothing other than findings of fact as to the violations set forth in the Commonwealth's motion to revoke and the ruling that Appellant's probation was revoked. No mention of KRS 439.3106 was made during the trial court's oral or written rulings. Whether or not the record supports a finding that the requirements of KRS 439.3106(1) were met, it is clear that the trial court did not consider either factor in reaching its decision to revoke Appellant's probation. As a result, under the analysis set forth in Andrews, we must conclude that the trial court's decision to revoke Appellant's probation in the absence of the requisite findings that Appellant posed a risk to the community and that he could not be managed therein constituted an abuse of discretion. See McClure, 457 S.W.3d at 733.
Finally, on a procedural note, the Commonwealth argues that Appellant did not preserve this issue on appeal because his counsel only asked that alternative sanctions be considered, not that the trial court make specific findings pursuant to KRS 439.3106. We disagree. However, even if we were to find that the issue is unpreserved, we would nevertheless conclude that the trial court's failure to make the statutory findings required by KRS 439.3106 constitutes palpable error under RCr 10.26.
On remand, the trial court shall enter express findings as to both elements of KRS 439.3106(1). In accordance with Andrews, once the trial court has fully considered and made findings as to these elements, it should determine whether revocation or a lesser sanction is most appropriate, thus serving both the spirit of, and the intent behind, KRS 439.3106. Id.
The order of the Russell Circuit Court is reversed and the matter is remanded for further proceedings consistent with this opinion.
ALL CONCUR. BRIEF FOR APPELLANT: Kathleen K. Schmidt
Jason A. Hart
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Jeffrey Ray Prather
Assistant Attorney General
Frankfort, Kentucky