Opinion
NO. 2015-CA-001214-MR
02-24-2017
RICKY ALLEN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANTS: Molly Mattingly Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Any Beshear Attorney General of Kentucky James Havey Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM POWELL CIRCUIT COURT
HONORABLE FRANK ALLEN FLETCHER, JUDGE
ACTION NO. 14-CR-00037 OPINION
VACATING AND REMANDING
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BEFORE: ACREE, STUMBO, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Ricky Allen brings this appeal from a July 8, 2015, order of the Powell Circuit Court revoking his probation and sentencing him to four-years' imprisonment. We vacate and remand.
In 2014, Allen was indicted by a Powell County Grand Jury upon two counts of flagrant nonsupport. The amount of the child support arrearage as to Count I was $14,687.10 and as to Count II was $12,997.72. Pursuant to a plea agreement with the Commonwealth, Allen subsequently pleaded guilty to both counts of flagrant nonsupport. And, in exchange, the Commonwealth recommended a probated sentence. By judgment entered December 17, 2014, Allen was sentenced to four-years' imprisonment upon each count to run concurrently for a total sentence of four-years' imprisonment. And, by separate order entered the same day, December 17, 2014, the circuit court probated Allen's sentence of imprisonment for a period of five years. As a condition of probation, Allen was to "work faithfully at suitable employment" and "pay child support as ordered."
On April 2, 2015, the Commonwealth filed a motion to revoke Allen's probation. Therein, the Commonwealth alleged Allen had violated the conditions of his probation by failing to pay child support as ordered. The motion to revoke included notice that a hearing would be conducted on April 8, 2015. Allen failed to appear for the hearing, and the circuit court issued a bench warrant for his failure to appear. Allen was subsequently arrested on the outstanding bench warrant, and a probation revocation hearing was conducted on July 8, 2015.
At the revocation hearing, the Commonwealth presented testimony that Allen had not made any payment of child support since being placed on probation in December 2014. In response, Allen testified that after he entered into the plea agreement he lost his job. Allen further testified that if the court permitted him to remain on probation he could return to work for a previous employer. By order entered July 8, 2015, the circuit court revoked Allen's probation and sentenced him to four-years' imprisonment. This appeal follows.
According to the undisputed testimony presented at the revocation hearing, Ricky Allen had paid $35 in child support on December 2, 2014, the day before his guilty plea. Prior to that time, Allen last made a $45 payment on January 9, 2014. And, prior to that, Allen last made a child support payment in 2011.
Allen contends that the circuit court violated his right to due process under the Fourteenth Amendment to the United States Constitution by revoking his probation for failure to pay child support. Specifically, Allen asserts the circuit court failed to make the necessary findings of fact as required by Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983), and as adopted in this Commonwealth by our Supreme Court in Commonwealth v. Marshall, 345 S.W.3d 822 (Ky. 2011). Allen concedes that this issue was not preserved for appellate review but requests this Court to review it under the palpable error rule of Kentucky Rules of Criminal Procedure (RCr) 10.26.
RCr 10.26 provides that unpreserved error may be considered on appeal if the error is palpable. A palpable error generally affects the substantial rights of a party and will result in manifest injustice if not reviewed by the appellate court. Schoenbachler v. Com., 95 S.W.3d 830 (Ky. 2003). Succinctly stated, a palpable error occurs when there exists a substantial possibility that the result of the trial would have been different absent the error. Brewer v. Com., 206 S.W.3d 343 (Ky. 2006).
The Kentucky Supreme Court considered the issue of revoking probation for failure to pay child support in Commonwealth v. Marshall, 345 S.W.3d 822. In Marshall, the Court reviewed two circuit court actions involving probation revocation for failure to comply with a condition of probation requiring payment of child support. Id. The Marshall Court concluded that due process requires the circuit court to make certain findings of fact when considering a motion to revoke probation for failure to pay child support. Id. The Supreme Court held that the circuit court must make specific findings of fact regarding:
(1) [W]hether the probationer made sufficient bona fide attempts to make payments but been unable to do so through no fault of his own and, if so, (2) whether alternatives to imprisonment might suffice to serve interests in punishment and deterrence.Marshall, 345 S.W.3d at 828 (citations omitted). The Marshall Court emphasized that a circuit court "must make clear findings on the record specifying the evidence relied upon and the reasons for revoking probation." Id. at 824.
In the case sub judice, the circuit court revoked Allen's probation for the sole reason that he did not make child support payments in accordance with the terms of his probation. The circuit court did not make the findings of fact required by Marshall including whether Allen had made sufficient bona fide efforts to pay the child support but was unable to do so through no fault of his own and, if so, whether there were alternative forms of punishment that might apply. See Marshall, 345 S.W.3d 822. These findings of fact are mandatory and failure to make such findings constitutes palpable error as Allen's right to due process was violated resulting in manifest injustice under RCr 10.26.
Accordingly, we conclude that the circuit court abused its discretion by revoking Allen's probation without making the mandated findings of fact pursuant to Marshall, 345 S.W.3d 822. Therefore, we vacate the July 8, 2015, order of the Powell Circuit Court revoking Allen's probation and remand for the circuit court to hold another probation revocation hearing. Following the hearing, the circuit court shall make the findings of fact mandated by Marshall. Id.
We view Allen's remaining contentions of error as moot.
Upon remand, the circuit court must also comply with the probation revocation requirements of Kentucky Revised Statutes 439.3106. --------
For the forgoing reasons, the July 8, 2015, order of the Powell Circuit Court revoking Allen's probation is vacated and remanded.
ALL CONCUR. BRIEFS FOR APPELLANTS: Molly Mattingly
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Any Beshear
Attorney General of Kentucky James Havey
Assistant Attorney General
Frankfort, Kentucky