Opinion
NO. 2013-CA-001735-MR
05-01-2015
FRED WILLIAM ROBINSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Renee VandenWallBake Assistant Public Advocate 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NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 06-CR-003464
OPINION
REVERSING AND REMANDING
BEFORE: ACREE, CHIEF JUDGE; D. LAMBERT AND MAZE, JUDGES. ACREE, CHIEF JUDGE: Fred William Robinson appeals from an order revoking his probation. He alleges the circuit court abused its discretion by failing to consider the statutory parameters of Kentucky Revised Statute (KRS) 439.3106 and basing its decision solely on Robinson's violation of conditions of probation. We agree, and reverse and remand.
Robinson was sixteen years old when he and another juvenile participated in a robbery that yielded $20.00. He was arrested and later pleaded guilty to two counts of first-degree robbery and possession of a handgun by a minor. On October 10, 2007, the circuit court sentenced Robinson to a total of fifteen years' incarceration, probated for five years subject to certain restrictions. The order contained the following relevant conditions: (1) that he not commit another offense and (2) that he remain drug and alcohol free.
Robinson waived transfer from juvenile court to circuit court where he was prosecuted as a youthful offender.
Prior to sentencing, Robinson was housed at the Jefferson County Youth Center. While there he earned above-average grades in school, received "Super Honors" from the staff, displayed a positive attitude, earned the respect of his teachers and peers, and was a model resident.
Three years later, Robinson was arrested for possessing marijuana and failing to wear his seat belt. The circuit court revoked his probation and ordered him to serve his sentence. After four months in prison, Robinson filed a motion for shock probation and a hearing was held. Robinson's attorney informed the court that Robinson was an exemplary inmate, attended church, was baptized, was attending AA meetings and, prior to his arrest, was on the verge of obtaining a college degree. The Commonwealth agreed that shock probation was "not inappropriate" and only the serious nature of Robinson's underlying convictions prompted it to initially seek revocation of his probation. The circuit court granted Robinson's request for shock probation, subject to the same strict conditions of probation. The order also stated: "The Court shall have zero tolerance for violations. Any violation, however slight or seemingly insignificant, shall result in revocation of this privilege being afforded the Defendant." (R. at 178).
On August 15, 2012, the Commonwealth requested that Robinson's probation be revoked yet again, based on his arrest for driving while under the influence, speeding, and for being in a different county without permission. Robinson stipulated to the probation violation. The circuit court conducted a hearing at which Robinson's trial counsel informed the court that, although this was Robinson's second probation violation, his previous year's drug screens had been negative, he was taking construction classes at the Louisville Urban League, was steadily employed, had housing, and had familial support. Robinson had only recently been referred to alcohol treatment and had attended three sessions prior to the revocation hearing.
Without reference to KRS 439.3106, the circuit court revoked Robinson's probation in an order entered on September 24, 2012, finding he had violated conditions of probation. Robinson appealed.
Whether to revoke probation is a matter largely left to the discretion of the trial court. See KRS 533.020(1). We will not disturb a revocation order absent an abuse of that discretion. Commonwealth v. Lopez, 292 S.W.3d 878, 881 (Ky. 2009).
Robinson argues the circuit court abused its discretion when it revoked his probation without first complying with KRS 439.3106, which requires the court to consider whether a probationer's failure to adhere to the terms of probation constituted "a significant risk to [his] prior victims or the community at large," and that he "cannot be appropriately managed in the community." KRS 439.3106(1). The Kentucky Supreme Court recently spoke on this very issue in Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014).
Andrews was rendered on December 18, 2014, well after the circuit court entered its revocation order in 2012. The circuit court did not have the benefit of Andrews in reaching its decision.
Andrews marks the Court's earliest opportunity to analyze KRS 439.3106 and its applicability to trial courts prior to revoking probation. Id. at 776. The Court's answer was refreshingly clear: "KRS 439.3106 must be considered [by the trial court] before probation may be revoked." Id. at 778-79. That statute provides that 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 acknowledged that House Bill 463, which created several new statutes, including KRS 439.3106, altered the legal landscape related to probation revocation. 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. KRS 533.020(1). Generally, 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).
"In 2011, the Kentucky General Assembly enacted the Public Safety and Offender Accountability Act, commonly referred to as House Bill 463 ("HB 463")." Andrews, 448 S.W.3d at 776.
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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; KRS 439.3106. The Court explained:
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 probation 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 779. Ultimately, the Court found that the plain language of 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." Id. at 780. A trial court may not bypass this legal barricade prior to revoking probation. Id.
Of course, it is still well within the trial court's discretion to revoke probation under the totality of the circumstances after taking into consideration the specific criteria of KRS 439.3106(1). See, e.g., Andrews, 448 S.W.3d at 780-81 (the trial court did not abuse its discretion by revoking probation because the court plainly considered a variety of factors - including the probationer's lack of candor, four previous felony convictions, and a prior unsuccessful probation attempt - and the measures in KRS 439.3106). But if the trial court bases its decision solely on the probationer's violation of a condition, that decision does constitute an abuse of discretion "under the new state of the law." Id. at 780.
We understand the circuit court's frustration and decision in this case. It has twice afforded Robinson leniency, yet he is unable to abide by the conditions of probation and refrain from criminal conduct. However, the circuit court revoked Robinson's probation solely on his violation of probation conditions. It failed to assess Robinson's conduct in light of KRS 439.3106 and the conditions precedent described in that statute. Under Andrews, we conclude this is an abuse of discretion.
For the foregoing reasons, we reverse the September 24, 2012 Order of the Jefferson Circuit Court revoking Robinson's probation. We order the circuit court to re-evaluate revocation under KRS 439.3106 and Andrews, specifically taking into consideration whether Robinson's failure to abide by a condition of probation constitutes a significant risk to prior victims or the community, and whether Robinson cannot be appropriately managed in the community before probation may be revoked.
ALL CONCUR. BRIEFS FOR APPELLANT: Renee VandenWallBake
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
J. Hays Lawson
Assistant Attorney General
Frankfort, Kentucky