Opinion
NO. 2015-CA-000977-MR
02-17-2017
DASHAWN WILLIS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Gene Lewter Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky David B. Abner Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NOS. 11-CR-00226, 12-CR-00019, 13-CR-00074, & 13-CR-00270 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; D. LAMBERT AND J. LAMBERT, JUDGES. LAMBERT, D., JUDGE: DaShawn Willis appeals from a Franklin Circuit Court order revoking his probation.
Willis entered guilty pleas under four different indictments to multiple charges including first-degree trafficking in a controlled substance; possession of marijuana; first-degree criminal possession of a forged instrument; first-degree possession of a controlled substance; and first-degree bail jumping. He was sentenced to serve a total of twelve years in prison, in accordance with his plea agreement. He was granted shock probation on June 19, 2014.
On September 11, 2014, the Commonwealth filed a motion to revoke probation containing the following allegations:
a. On August 12, 2014, the defendant was charged in this [Franklin] county with Speeding and Operating a Motor Vehicle on a Suspended Operator's License.
b. On September 6, 2014 the defendant was arrested in this [Franklin] county for the offense of Operating a Motor Vehicle on a Revoked License, Expired Registration Plates, No Insurance, Possession of Drug Paraphernalia and Possession of a Controlled Substance in the First Degree (cocaine).
c. The defendant's probation supervision is in Jefferson County, and the defendant is not to leave Jefferson County without the permission of his Probation Officer. He did not have such permission on either August 12, 2014 or September 6, 2014.
The Commonwealth later filed a motion to supplement in which it alleged that Willis was arrested in Franklin County on October 3, 2014, and charged with enhanced trafficking in a controlled substance in the first degree, over 2 grams of heroin, and enhanced possession of drug paraphernalia. The motion also stated that Willis was found in possession of heroin for purposes of sale, a .38 caliber firearm and digital scales.
A probation revocation hearing was conducted on May 29, 2015. The probation officer testified that Willis's supervision had been transferred from Franklin County to Jefferson County, but he did not know if Willis had been informed he could not leave Jefferson County. On cross-examination, he further testified that all the new criminal charges brought against Willis had been dismissed and all that remained outstanding were the traffic offenses. The Commonwealth's attorney told the trial court that the October case had been dismissed because Willis's brother had come in and taken the blame for it.
At the conclusion of the hearing, the trial court stated, "I find specifically that he [Willis] has not followed the written directions of this court by leaving the area of his supervision. He was to be supervised in Jefferson County. He left Jefferson County. It's obvious that he's not going to do anything that we ask of him."
The trial court's written order revoking probation states in pertinent part that
the Court finds that the defendant has violated the terms and conditions of his probation by the commission of additional offenses while on probation and by travelling outside the county of his residence without permission of his Probation Officer. Accordingly, the Court find[s] that the defendant has repeatedly acted without regard for the conditions of the probation granted him in these indictments, that the defendant's failures to comply with the conditions of probation constitute a significant risk to the community at large, and the defendant cannot be appropriately managed on probation within the community[.]
This appeal by Willis followed.
Probation revocation hearings must be conducted in accordance with minimum requirements of due process
of law. [Kentucky Revised Statutes] KRS 533.050(2) provides that "the court may not revoke or modify the conditions of a sentence of probation or conditional discharge except after a hearing with defendant represented by counsel and following a written notice of the grounds for revocation or modification." Probation revocation is not dependent upon a probationer's conviction of a criminal offense. Instead, the Commonwealth need only prove by a preponderance of the evidence that a probationer has violated the terms of probation.Miller v. Commonwealth, 329 S.W.3d 358, 359 (Ky. App. 2010) (internal quotation marks and citations omitted).
We review a trial court's decision to revoke probation for abuse of discretion. Lucas v. Commonwealth, 258 S.W.3d 806, 807 (Ky. App. 2008). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Id.
Willis's first argument is that the trial court improperly revoked his probation on the grounds that he had violated the condition that he remain in Jefferson County, even though no evidence was presented that he was required to remain in that county or had been notified that he was required to remain in the county. The Commonwealth concedes that no such evidence was presented, but contends that there was sufficient additional evidence to justify the revocation of probation.
Willis further contends that at the revocation hearing, the Commonwealth's attorney described an episode occurring in Franklin County in which Willis was found with his brother in possession of marijuana, a handgun, and drug paraphernalia, even though this episode was not contained in any of the Commonwealth's filings. Willis implies that the Commonwealth's attorney thus impermissibly entered evidence of a new episode. Our review of the video recording of the revocation hearing shows that the Commonwealth Attorney clearly stated "heroin," not marijuana, and was referring to the October 3, 2014 charges detailed in the motion to supplement the petition. In any event, it was made clear at the hearing through the testimony of the probation officer that all the new criminal charges against Willis had been dismissed, and all that remained were the traffic offenses.
Willis nonetheless argues that it is impossible to know what the trial court meant by "additional offenses" and that the court's demeanor on the bench suggests the trial court "thought there was more to this case than minor traffic offenses," and had accepted the Commonwealth's insinuation that Willis was guilty of the criminal charges despite the fact they were dismissed. This latter argument is purely speculative. The circuit court "speaks only through written orders entered upon the official record." Kindred Nursing Ctrs. Ltd. P'ship v. Sloan, 329 S.W.3d 347, 349 (Ky. App. 2010)
Willis's primary argument is that the trial court's findings were simply inadequate to satisfy the minimum due process requirements of the disclosure of the evidence against the probationer and a written statement as to the evidence relied on in revoking probation. See Sullivan v. Commonwealth, 476 S.W.3d 260, 263 (Ky. App. 2015), review denied (Dec. 10, 2015). Specifically, he contends that the trial court failed to follow the requirements of KRS 439.3106 in revoking his probation.
KRS 439.3106 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.
Recently, the Kentucky Supreme Court explained 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." Commonwealth v. Andrews, 448 S.W.3d 773, 780 (Ky. 2014). By requiring the trial court to make such a determination, "the legislature furthers the objectives of the graduated sanctions schema to ensure that probationers are not being incarcerated for minor probation violations." Id. at 779. The Court also stressed that its holding "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. "[T]he 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." McClure v. Commonwealth, 457 S.W.3d 728, 732 (Ky. App. 2015).
The trial court's order gave as its reasons for revocation (1) Willis's commission of additional offenses; (2) his traveling outside the county of his residence without the permission of his probation officer; and (3) that he had repeatedly acted without regard for the conditions of his probation. As we have already explained, the Commonwealth has conceded that Willis's traveling outside Jefferson County was not a permissible reason for revoking probation. It is undisputed, however, that Willis was charged on one occasion and arrested on another for traffic offenses which included speeding and operating a motor vehicle on a suspended operator's license. "Generally, a trial court's decision revoking probation is not an abuse of discretion if there is evidence to support at least one probation violation." Lucas v. Commonwealth, 258 S.W.3d 806, 807 (Ky. App. 2008) (internal citation omitted). The trial court concluded that Willis's commission of additional offenses and his repeated disregard for the conditions of his probation fulfilled the requirements of KRS 439.3106 in that Willis's behavior posed a significant risk to the community and indicated that he could not be appropriately managed on probation.
Because there was evidence in the record to support a finding that Willis had violated a condition of his probation and because the trial court properly considered the statutory factors under KRS 439.3106, the trial court did not abuse its discretion in revoking Willis's probation.
The order revoking probation is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Gene Lewter
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky David B. Abner
Assistant Attorney General
Frankfort, Kentucky