Opinion
NO. 2015-CA-001442-MR
02-10-2017
FRED WILLIAM ROBINSON III APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Renee Vandenwallbake Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky J. Hays Lawson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH MCDONALD-BURKMAN, JUDGE
ACTION NO. 06-CR-003464 OPINION
AFFIRMING
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BEFORE: JONES, D. LAMBERT, AND TAYLOR, JUDGES. JONES, JUDGE: Fred William Robinson III ("Robinson") brings this appeal from the Jefferson County Circuit Court's revocation of his probation. Robinson argues that the trial court abused its discretion when it revoked his probation after he was arrested for driving under the influence and had a previous probation violation for possession of marijuana. Because we hold that the circuit court did not abuse its discretion, we affirm.
I. Background
The facts of this case were substantially provided by this Court in Robinson's initial appeal:
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.
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).Robinson v. Commonwealth, No. 2013-CA-001735-MR, 2015 WL 1969985, at *1 (Ky. App. May 1, 2015) (footnote omitted). This Court reversed because the trial court failed to make findings under Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014).
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.
On remand, the trial court held another evidentiary hearing. During that hearing, Dr. Wayne Herner testified that Robinson did not constitute a serious risk to society and could likely be rehabilitated. Though Dr. Herner testified that Robinson engaged in antisocial behavior when he was younger, including drug and alcohol abuse, and that Robinson had some family members who might negatively influence his behavior, Dr. Herner also testified that his other risk assessment factors were generally within the average range. He also testified that Robinson had many elements in his life which would tend to prevent recidivism. Robinson's counsel also introduced a short video, with statements from Robinson, his girlfriend, his mother and his former boss requesting that Robinson have his probation continued. The trial court ultimately revoked Robinson's probation. This appeal followed.
II. Analysis
Robinson's sole argument is that the trial court abused its discretion when it revoked his probation. "A decision to revoke probation is reviewed for an abuse of discretion . . . . 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." Andrews, 448 S.W.3d at 780 (internal quotation marks and citation omitted).
KRS 439.3106 provides that "[s]upervised individuals shall be subject to[]" the following:
Kentucky Revised Statutes. --------
(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.
Our Supreme Court ultimately concluded that the trial court did not abuse its discretion when it revoked the defendant's probation in Andrews:
If the trial court had based its decision solely on Andrews's violation of the condition that he remain drug-free, we would have had to deem that decision an abuse of discretion under the new state of the law. However, the trial court plainly considered a variety of factors, and specifically considered the criteria in KRS 439.3106. The trial court found that Andrews's recent drug use and past history strongly suggested that he was at great risk of reoffending and committing future drug crimes in the community.[] While Andrews's criminal history could not be the sole basis for his revocation, it was appropriately considered when assessing the risk posed by his continued probation. Furthermore, the trial court appropriately questioned whether Andrews's entry into a drug treatment program was truly "voluntary," considering that he only sought treatment at LCRM after he knew he had been "caught" violating the conditions of his probation. Andrews's entry into a treatment program only after testing positive for methamphetamine, coupled with his initial refusal to accept treatment, support the trial court's conclusion that Andrews could not be properly managed in the community. In sum, although Andrews's situation was not clear-cut and another judge may have opted for a lesser sanction, the trial court's decision to revoke Andrews's probation was neither arbitrary nor unreasonable.Id. at 780-81 (emphasis added).
Robinson finds the most support for his argument under Helms v. Commonwealth, 475 S.W.3d 637, 645 (Ky. App. 2015), in which this Court stated as follows:
In Andrews, the Court made clear that a decision to revoke probation based solely on a single violation of the condition that the defendant remain drug-free, will be deemed "an abuse of discretion under the new state of the
law." Id. at 780. While Helms also committed two technical violations by not mailing a single report and not paying supervision fees, neither violation presents a danger to the community nor indicates that his drug use cannot be adequately managed in the community. Until his one-time drug use and technical violations of the conditions of his diversion, Helms had been adequately managed within the community for 18 months. Because there is a complete lack of evidence in the record that Helms 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 and impose a two-year sentence of imprisonment was an abuse of discretion.Id.
In McVey v. Commonwealth, a panel of this Court, in affirming the trial court's revocation of probation, noted that "[t]he record reflects that the trial court appropriately considered McVey's completion of the drug court program and subsequent relapse in assessing whether the imposition of some other accountability measure would be fruitless." 467 S.W.3d 259, 263 (Ky. App. 2015). Furthermore, in McClure v. Commonwealth, we held that the circuit court did not abuse its discretion when it revoked the defendant's probation where he had two prior drug-related probation violations. 457 S.W.3d 728, 732 (Ky. App. 2015). This Court engaged in a lengthy discussion as to whether a circuit court abuses its discretion in these circumstances:
[T]he record supported a finding that McClure posed a "significant risk" and could not be managed within the community. Officer Oney's testimony established that McClure was convicted of burglary and theft of a controlled substance; he was granted the privilege of probation; he used a controlled substance in violation of
the terms of that probation and was subjected to further, more frequent testing. In response to this increased supervision, he went to great lengths to undermine the efforts of those supervising him by carrying someone else's urine in a syringe concealed in his pants. These facts constituted substantial support for the conclusion that a person who would go to such lengths to continue using a substance he was forbidden to use under penalty of five years in prison posed a significant risk to, and was unmanageable within, the community in which he lived.Id. at 733 (emphasis added).
The record also contradicts McClure's argument that the trial court failed to enter a sufficient finding that he posed a significant risk to the community. In addressing the two arguments McClure makes to this effect, like the Supreme Court did in Andrews, we look to both the written and video record for evidence of whether the trial court "specifically considered the criteria in KRS 439.3106[.]" Andrews at 780. Under this analysis, we disagree with McClure's assertion that the trial court simply failed to make a finding as to "significant risk." On the written order revoking McClure's probation, the trial court found that McClure was a "danger to [the] public" based on his attempt to alter the results of a drug screen. In addition, the trial court's statements at the conclusion of the hearing further demonstrated that the court considered the gravity of McClure's actions and the danger posed by his obvious addiction. This was sufficient.
After considering Andrews, Helms, McVey and McClure, we must conclude that the trial court did not abuse its discretion in revoking Robinson's probation. Robinson had previously violated his probation; he was well aware of the consequences he might face if he did so again. Nevertheless, Robinson consumed alcohol and then drove an automobile while intoxicated. Driving while intoxicated constituted not only a risk to Robinson's life, but also to all pedestrians, drivers, and passengers who came into contact with him. Similar to McClure, "[t]hese facts constituted substantial support for the conclusion that a person who would go to such lengths to continue [to abuse substances] under penalty of [a number of] years in prison posed a significant risk to, and was unmanageable within, the community in which he lived." 457 S.W.3d at 733.
In revoking Robinson's probation, the circuit court considered the violent nature of Robinson's underlying crime and his continued disregard for the conditions of his probation. As in Andrews, "although [Robinson's] situation was not clear-cut and another judge may have opted for a lesser sanction, the trial court's decision to revoke [Robinson's] probation was neither arbitrary nor unreasonable." 448 S.W.3d at 781. No error occurred.
III. Conclusion
In sum, we hold that Robinson has failed to prove that the trial court abused its discretion when it revoked his probation after he was arrested for driving under the influence and had a previous probation violation for possession of marijuana.
For the foregoing reasons, the judgment of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Renee Vandenwallbake
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky J. Hays Lawson
Assistant Attorney General
Frankfort, Kentucky