Opinion
NO. 2016-CA-000538-MR
02-02-2018
JAMES MICHAEL BAILEY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Emily Holt Rhorer Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Matthew R. Krygiel Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM POWELL CIRCUIT COURT
HONORABLE FRANK ALLEN FLETCHER, JUDGE
ACTION NO. 14-CR-00151 OPINION
VACATING AND REMANDING
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BEFORE: ACREE, DIXON AND JONES, JUDGES. ACREE, JUDGE: James Bailey appeals from the Powell Circuit Court's February 17, 2016 order revoking his probation. He alleges the circuit court abused its discretion by failing to adequately consider the statutory parameters of Kentucky Revised Statute (KRS) 439.3106 and by failing to make the factual findings required by that statute. We agree. Accordingly, we vacate the circuit court's revocation order and remand for additional proceedings as outlined in this Opinion.
Bailey pleaded guilty to first-degree trafficking in a controlled substance and two counts of complicity to first-degree trafficking in controlled substance. The circuit court sentenced him to seven years' imprisonment, probated for five years, subject to these conditions: serve ninety days; complete a drug rehabilitation program; and pay restitution.
Bailey was sentenced to seven years on each count, to be served concurrently.
Nine months later, Bailey's probation officer filed a violation of supervision report. That report stated that, during a recent court hearing, an officer with the Powell County Sheriff's office confiscated Bailey's phone for being "on" during court proceedings. While the phone was in his possession, the officer observed ongoing text messages on Bailey's phone concerning illegal drug activity. A search of Bailey's vehicle uncovered Suboxone and Xanax, and a search of his residence uncovered marijuana. Bailey was charged with public intoxication, two counts of controlled substance not in its original container, possession of a controlled substance, and possession of marijuana. He pleaded guilty and the Powell District Court sentenced him to thirty days in jail.
Bailey did not have a prescription for either drug.
In lieu of full revocation, Bailey and the Commonwealth agreed that Bailey would remain in jail until a bed became available in a residential treatment facility; Bailey would then complete the inpatient program. The circuit court approved of the partial revocation at a hearing on December 9, 2015.
On January 8, 2016, Bailey's probation officer filed a second violation of supervision report. That report stated that, while in jail awaiting drug treatment, Bailey tested positive for Xanax and Suboxone. A probation revocation hearing occurred on February 17, 2016. Bailey's probation officer, Erin Shillington, testified. She outlined Bailey's history, prior probation violations, and partial revocation, as previously described. Shillington noted that long-term inpatient treatment was not available if Bailey was using drugs, but he would become eligible in the future if he could remain clean for some period of time.
A bed became available for Bailey on February 4, 2016. However, Bailey's probation officer cancelled the bed due to the pending revocation proceedings.
After hearing the evidence, the circuit court stated on the record that it had given Bailey two chances, the first when he was originally granted probation and the second when he granted partial revocation in December 2015, that Bailey again tested positive for illegal drugs, and the court believed it had done everything possible. Therefore, "considering the statute," it was going to fully revoke probation.
The circuit court then entered a form order on February 17, 2016, revoking Bailey's probation and sentencing him to seven years' imprisonment. That order stated, in relevant part:
The court finds that the Defendant violated his/her probation in the following: (tested positive benzo, 1-6-16) (also Suboxone 1-6-16) (partial revocation 12-9-15)(R. 68). Bailey appealed.
The Court further FINDS pursuant to KRS 439.610(6) that sanctions other than revocation and incarceration are appropriate considering the severity of the violation behavior, the risk of future criminal behavior by the offender, and the need for and availability of any interventions which may assist the offender to remain compliant and crime free in the community.
Therefore, IT IS HEREBY ORDERED that the Defendant shall be sanctioned as follow: Full Revocation, Seven (7) Years.
The italicized portions indicate the circuit court's handwritten notations to the form order. --------
Bailey argues that the circuit court abused its discretion by revoking his probation without considering the statutory factors and without making the findings required by KRS 439.3106. The Commonwealth argues that the circuit court adequately articulated its rationale for revoking Bailey's probation and "the facts and circumstances support that the [circuit] court complied with its statutory requirements." We find Bailey's argument persuasive.
KRS 439.3106, the statute at issue, provides that supervised individuals, such as Bailey, 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; orIn Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014), the Kentucky Supreme Court held that "KRS 439.3106 must be considered [by the circuit court] before probation may be revoked." Id. at 778-79. No longer would evidence to support at least one probation violation be sufficient to revoke probation. See id. at 780 (noting, if the circuit court had based its revocation decision solely on the defendant's violation of a probation condition, the Supreme Court would have deemed that decision an abuse of discretion). "By requiring trial courts to determine that a probationer 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." Id. at 779. The "new state of the law" does not strip circuit courts of the discretion to revoke probation "provided that discretion is exercised consistent with statutory criteria." Id. at 780.
(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 this case, we are not convinced that the circuit court adequately considered the statutory factors contained in KRS 439.3106. The record does not contain any express verbal or written finding that Bailey's violations constituted a significant risk to the community and that he could not be appropriately managed in the community. KRS 439.3106(1). Verbally the circuit court simply stated it was "considering the statute," that Bailey had already been given a second chance, yet he continued to test positive for illegal drugs, and it had done "everything we can possibly do." But it did not reference or mention the statutory findings in form or spirit. Likewise, the written order contains nothing other than findings of fact as to Bailey's probation violations. It does not even perfunctorily recite the statutory language in KRS 439.3106. It simply makes no mention of KRS 439.3106 at all.
Regardless of whether the record may support a finding that satisfies the requirements of KRS 439.3106, it is incumbent upon the circuit court to demonstrate that it adequately considered the statutory factors prior to revocation. The circuit court's decision to revoke Bailey's probation without doing so constituted an abuse of its discretion. Andrews, 448 S.W.3d at 779; McClure v. Commonwealth, 457 S.W.3d 728, 733 (Ky. App. 2015).
We vacate the Powell Circuit Court's February 17, 2016 order revoking Bailey's probation and remand for the circuit court to reconsider whether Bailey's failure to abide by the terms of his probation constitute a significant risk to prior victims or the community, and whether Bailey cannot be appropriately managed in the community before his probation may be revoked, as required by KRS 439.3106(1).
ALL CONCUR. BRIEFS FOR APPELLANT: Emily Holt Rhorer
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Matthew R. Krygiel
Assistant Attorney General
Frankfort, Kentucky