Opinion
NO. 2016-CA-000984-MR
05-26-2017
ROY ROBERTS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Emily Holt Rhorer Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Frankfort, Kentucky Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NO. 15-CR-00194 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; JOHNSON AND NICKELL, JUDGES. KRAMER, CHIEF JUDGE: Roy Roberts appeals the Campbell Circuit Court's order revoking his probation. After a careful review of the record, we affirm because the circuit court's decision to revoke Roberts's probation was supported by sufficient factual findings, in accord with KRS 439.3106(1).
Kentucky Revised Statute.
I. FACTUAL AND PROCEDURAL BACKGROUND
Roberts entered a guilty plea to the charge of receiving stolen property valued over $500.00 but less than $10,000.00. The circuit court sentenced him to serve five years of imprisonment. However, the court then probated the sentence for five years
[u]pon the terms and conditions set out by the Div[ision] of Probation and Parole and upon the following specific conditions: supervision to be pursuant to the rules and regulations of the SMART Program; pay restitution to [the victim] in the sum of $950 through the Clerk's office with 5% service fee thereon at the minimum rate of $50 per month commen[cing] 30 days hereof; be evaluated for substance abuse and complete all recommended treatment, including after-care. Cost and fees herein are waived. Defendant having served his split sentence of 120 days, he may be released from custody.
No explanation is provided in the record for what the SMART Program entails.
Approximately seven months after the aforementioned judgment was entered in this case, Roberts's probation officer filed an affidavit with the circuit court alleging that Roberts violated his probation by failing to abide by the conditions of expanded community supervision and by absconding probation supervision. In the affidavit, the probation officer recommended that a warrant be issued for Roberts's arrest and that a hearing be conducted concerning his probation violations.
An arrest warrant was issued, and a hearing was held. Following the hearing, the circuit court entered its order revoking Roberts's probation. In that order, the court entered findings of fact, which included the following:
Eric Heck testified that the Defendant was required to call daily for drug testing purposes. The Defendant was
in the hospital and was given permission to stop his daily call while he was in the hospital. Officer Heck testified that he did not know the exact date the Defendant was released from the hospital. However, he knew he was not in the hospital any time after April 21, 2016. A home visit was conducted on April 22, 2016. The Defendant was not home. A card was left for the Defendant advising him to report the next day. The Defendant did not call. Officer Heck had no further contact with the Defendant.The circuit court's findings of fact were properly based upon the evidence presented., Additionally, the probation officer testified that when he was trying to get in contact with Roberts after he was released from the hospital, the probation officer called all of the local hospitals and jails to see if Roberts was in any of those places, but he was not. Further, Roberts attested that his initial hospitalization was because his lungs had collapsed and he suffered from C.O.P.D. Although Roberts did not state when he had been released from the hospital (but according to the probation officer, it was prior to April 21, 2016), Roberts did testify that he was arrested pursuant to the arrest warrant for this probation violation on May 17, 2016. Therefore, he had been out of the hospital for approximately a month, yet he still had not contacted his probation officer.
The Defendant testified that he had been in and out of the hospital on four different occasions. After being released, he lost contact with his probation officer. He testified that people in his apartment building were doing drugs so he did not want to stay at his apartment. He started staying at his sister's house, a friend's house and sometimes at his own apartment. He knew he should have contacted probation and parole but his [cellular tele]phone was destroyed. He testified that he could have [gone] to probation and parole's office[,] but[] did not. He testified that he remained drug[-]free and was working on different jobs in Newport, Kentucky.
The Court finds that the Defendant's testimony [is] unreliable.
The Court takes judicial notice that the Defendant's prior criminal history includes possession of marijuana (5 convictions), burglary [in the] 3rd [degree], receiving stolen property (felony), fraudulent use of a credit card (felony), 4 theft convictions, alcohol intoxication, promoting contraband, criminal trespass (3 convictions), receiving stolen property, shoplifting, fraudulent use of a credit card (misdemeanor), and failure to wear a seatbelt.
Although there is no evidence of Roberts's criminal history in the record before us, he does not challenge the circuit court's findings regarding his criminal history. Therefore, we assume the court's recitation of his criminal history is correct.
We have reviewed the video recording of the hearing.
Chronic Obstructive Pulmonary Disease.
In addition to its findings of fact, the circuit court also entered conclusions of law, which included:
The Defendant, Roy Roberts, violated the terms and conditions of his probation when he failed to abide by conditions of expanded services, and absconded supervision. The Defendant was fully aware of the terms and conditions of his reporting. The Defendant chose to make his whereabouts unknown to his probation officer. The Defendant continues to be a threat to the community and is not manageable in the community.Therefore, the circuit court revoked Roberts's probation. Roberts now appeals, contending that the circuit court erred when it revoked his probation.
II. ANALYSIS
Kentucky Revised Statute 439.3106 concerns the sanctions that supervised individuals are subject to when they violate the conditions of their supervision. Although awkwardly worded, 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.
In the present case, in its conclusions of law, the circuit court stated, inter alia, that:
A defendant's probation should not be revoked unless the Court finds by a preponderance of the evidence that he/she is in violation of the terms and conditions of his/her probation. Miller v. Commonwealth, 329 S.W.3d 359 (Ky. App. 2010). Before revoking a defendant's probation, the Court must determine that the defendant's failure to abide by the conditions of supervision constitutes a significant risk to prior victims or the community and that the probationer/defendant cannot be managed in the community. [Andrews, 448 S.W.3d at 773]. This analysis is not required when a defendant is
absconding supervision or receives a new felony conviction. Id.(Citation formatting corrected and emphasis added).
As noted by Roberts in his appellate brief, the circuit court erred in stating that the analysis is not required when the defendant has absconded supervision. The circuit court cited Andrews for this proposition of law, but the Kentucky Supreme Court stated no such thing in Andrews.
Rather, in discussing the second part of KRS 439.3106, the Andrews Court noted that "[t]he language of KRS 439.3106(2) regarding 'other sanctions' loosely tracks KRS 439.3107, which directs the [Department of Corrections] to adopt a system of graduated sanctions for the most common types of supervision violations." Andrews, 448 S.W.3d at 778 (quotation marks omitted). The Court stated, however, that "[c]ertain violations, such as absconding or receiving a new felony conviction, require the probation officer to submit the matter to the trial court without the possibility of imposing graduated sanctions." Andrews, 448 S.W.3d at 778 (footnote omitted). Therefore, although a defendant who has absconded is not entitled to graduated sanctions imposed by the Department of Corrections, the probation violation must still be submitted to the trial court for consideration under KRS 439.3106.
In fact, the Supreme Court in Andrews concluded that "KRS 439.3106(1) requires trial courts to consider whether a probationer's failure to abide by a condition of supervision constitutes a significant risk to prior victims or the community at large, and whether the probationer cannot be managed in the community before probation may be revoked." Andrews, 448 S.W.3d at 780. Consequently, the circuit court was required to consider KRS 439.3106 in determining whether to revoke Roberts's probation, even after it found that he had absconded. We must now determine if the court did consider the provisions of KRS 439.3106.
Roberts alleges that the circuit court improperly revoked his probation because it
summarily declared that [he] was a threat to the community and unmanageable, but it failed to provide any reasons for that finding other than the fact that he had a significant criminal history (which . . . the court knew . . . when it first decided to probate him) and he had "absconded."Thus, Roberts contends that the evidence presented at the evidentiary hearing did not support the circuit court's conclusion.
In Helms v. Commonwealth, 475 S.W.3d 637, 645 (Ky. App. 2015), this Court held that the trial court's
final order parroted the statutory language that Helms's violations demonstrate he is "a significant risk to the public" and "that he cannot be properly managed within [the] community and that [his] behavior demonstrates that there are no workable alternatives to incarceration[.]" Thus, the trial court was aware of the KRS 439.3106 criteria and stated the ultimate findings of fact in its order.
If the penal reforms brought about by HB 463 are to mean anything, perfunctorily reciting the statutory
language in KRS 439.3106 is not enough. There 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.
House Bill. --------
During the evidentiary hearing in the present case, the court noted that Roberts alleged people at his apartment building were using drugs. Yet at that same time, Roberts was not reporting to his probation officer and he was not submitting to drug tests. The court speculated it was more likely than not that Roberts was using drugs and that this was the reason he was not reporting to his probation officer, getting drug tested, or telling his probation officer that he was not living at his residence. The court found that Roberts was not a good candidate for supervision because the court concluded that Roberts was not being honest during the evidentiary hearing. The circuit court also found that Roberts had absconded.
In the court's conclusions of law in its written order revoking probation, the circuit court found that Roberts had failed to abide by the conditions of his probation and he had absconded by choosing not to make his whereabouts known to his probation officer. Therefore, the court concluded that Roberts was a threat to the community at large and that he was not manageable in the community, as required by KRS 439.3106(1). Because these conclusions were based upon the court's findings about Roberts's absconding and criminal history, the court's findings were proper under KRS 439.3106(1). Consequently, the circuit court properly revoked Roberts's probation.
Accordingly, the order of the Campbell Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Emily Holt Rhorer
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky
Frankfort, Kentucky Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky