Opinion
NO. 2018-CA-000452-MR
02-21-2020
Ashley COMPISE, Appellant v. COMMONWEALTH of Kentucky, Appellee
BRIEFS FOR APPELLANT: Robert C. Yang, Assistant Public Advocate, Frankfort, Kentucky. BRIEF FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, James P. Judge, Assistant Attorney General, Frankfort, Kentucky.
BRIEFS FOR APPELLANT: Robert C. Yang, Assistant Public Advocate, Frankfort, Kentucky.
BRIEF FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, James P. Judge, Assistant Attorney General, Frankfort, Kentucky.
BEFORE: TAYLOR, K. THOMPSON, AND L. THOMPSON, JUDGES.
OPINION
THOMPSON, K., JUDGE: Ashley Compise appeals from the Jefferson Circuit Court’s orders which voided her pretrial diversion and placed her on probation with a sanction instead. Because the circuit court failed to make the required findings and relied in part upon an inadequate order of restitution, we vacate and remand.
In 2015, Compise was indicted for receiving stolen property over $500 but less than $10,000, a class D felony. After Compise’s arraignment in January 2017, she was permitted home incarceration with work release. However, about a month later she was arrested for violating the terms of her work release by visiting various stores. After some time in jail, she was placed back on home incarceration with work release.
On March 31, 2017, Compise accepted the Commonwealth’s offer and pled guilty as charged with an Alford plea in exchange for one year of incarceration diverted for five years, contingent on paying restitution to the victim in an amount to be determined. The factual basis for the charge was that:
North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
Between 3/1/14 and 9/24/14, [Compise] was in possession of jewelry that had been reported stolen by [victim] in thefts from victim’s home. [Compise] had been hired by victim to clean victim’s home when victim noticed her jewelry missing. LMPD was called and report was filed. Det learned that [Compise] sold victim’s stolen jewelry to Dan’s Cash America on several occasions. Victim ID her jewelry from photos taken by pawn shop. Det got [Compise’s] info from pawn shop records. Value of stolen property is over $500.
During an April 28, 2017 hearing, restitution was discussed. Compise waived having a restitution hearing in favor of both parties submitting written proof. She was ordered by the circuit court to report to probation and parole for supervision of her diversion beginning May 1, 2017, and told she would later receive a separate restitution order.
On May 17, 2017, a written order was entered granting Compise pretrial diversion in accordance with her plea agreement, with the charge to be dismissed-diverted upon successful completion. The diversion was to be supervised and included restitution and home visits by Probation & Parole. Conditions of the diversion also required that Compise not commit another offense and remain drug and alcohol free. It was not specified in this order how much restitution Compise was to pay or how much she was to pay a month as the issue of restitution remained unresolved.
After the parties submitted written proof, on June 16, 2017, an order regarding restitution was entered. The circuit court ordered Compise to pay restitution of $22,998.76 to the victim for stolen property. No terms were provided as to how restitution was to be paid.
Compise argued she should not be required to reimburse the victims for items subject to an order of replevin, there was a mismatch between items described as missing and items pawned, and that because the website through which the victim obtained her many charms had so many options for the cost of the charms depending upon the metal and style there was no substantial evidence on her claim of loss. Compise provided some 140 pages of attachments on valuation and what was recovered and requested she be required to pay only $1,300 in restitution.
The Commonwealth stated that the victim’s compiled list of outstanding property accompanied by the amounts she paid for each item was in line with the market value for the items and constituted substantial evidence to support the restitution claim. While acknowledging returned items should be deducted from the total loss, it stated the pawn shop failed to return items and, therefore, the victim was owed the full amount of her loss.
The circuit court reviewed the evidence and deducted the cost of the items subject to replevin orders, opining failure to return items could give rise to a cause of action against the pawn shop, but it would not hold Compise responsible. The court resolved that the mismatch between items described as missing and items pawned meant that there were additional items still missing and a preponderance of evidence supported the victim’s list of damages. Compise did not appeal on this issue.
On August 9, 2017, the Commonwealth moved to void Compise’s pretrial diversion based on a violation of supervision report for failure to cooperate with her probation officer:
Ms. Compise has refused to provide DNA to Probation and Parole as required by KRS[ ] Statute 17.170. She has repeatedly been given the opportunity to avoid a violation when she has reported and has refused to comply. She also stated that she is "absolutely not" going to pay restitution as ordered by the court on 07/27/17 as indicated by notes from Officer Durrenberg. She is aware of her responsibility to pay restitution and is consciously and deliberately refusing to do so. She was directed by Officer Durrenberg to wait in the lobby on 7/27/17 to meet with District Supervisor Vincent and she failed to comply with that directive and left, she gave no explanation for this behavior.
Kentucky Revised Statutes.
Revocation was recommended as "[i]t [was] determined that graduated sanctions are not appropriate in this case due to the fact that Ms. Compise has repeatedly failed to cooperate with Probation and Parole."
On December 8, 2017, the circuit court held a hearing on the motion to remove Compise from diversion. Officer Fulner from Probation and Parole testified regarding two reports of violations. He testified about the first report which was filed as the basis for voiding Compise’s pretrial diversion and a second report which was not made part of the record.
Officer Fulner testified that Compise violated the terms of her supervision by refusing to provide DNA as required and absconding. He testified that on July 27, 2017, when Compise reported she was supposed to produce a urine sample for drug testing but failed to do so. She was given her next report date of August 22, 2017, and was instructed to remain in the lobby because she failed to produce a urine sample. However, Compise left the lobby without permission or explanation.
Officer Fulner testified the second report made on August 24, 2017, was for absconding and explained the basis of that supervision violation. Compise failed to report on August 22, 2017, as previously ordered. On August 23, 2017, her probation officer conducted a home visit and did not find her at home. A card was left at her residence instructing Compise to report by August 24, 2017, at 8 a.m. She did not report at this time and the second report was filed that day after she had not reported by 11 a.m.
Officer Fulner testified that Compise finally reported later in the day on August 25, 2017, and was arrested on a bench warrant and continued in custody through September. He testified that Compise finally provided DNA on October 6, 2017, and he admitted she had not missed any reporting dates since being released.
Officer Fulner testified that as to restitution, Compise continued not to pay even after the first report was filed. While he did not recall whether Compise was instructed on how to make restitution payments, Officer Fulner testified that Compise said previously that she was not going to pay restitution and she never asked how to make restitution payments.
Compise testified in her own defense. She testified she was never informed how to pay restitution, when to pay, or how much was due each time. She testified, "I will pay as much as I am capable of paying," but explained that she only made $10 an hour, earned less than $300 a week, and was paying $150 in rent per week. She testified that as far as she knew she was always compliant with Probation and Parole and called if she was going to miss a reporting date. She testified that while she was informed by her probation officer that a restitution order was entered and instructed to call her attorney for more information, when she reached her public defender’s office Compise was told her public defender no longer practiced law. Compise testified she never received a copy of the restitution order or knew that her payments had started.
The circuit court announced from the bench its disbelief that Compise was unaware she had to pay restitution, as restitution was the main issue in the case. The circuit court found Compise’s non-compliance with her probation officer was knowing and willful and that Compise was a risk to reoffend because of her lack of accountability and was also a risk to the community based on her lack of accountability. Therefore, the circuit court found that the violations required removing her from diversion. The circuit court passed on sentencing Compise, stating that it wanted to see Compise make some efforts to pay restitution and "hopefully when we get back we will have the compliance we need and can probate."
On December 12, 2017, the written order removing Compise from diversion and a judgment of conviction was entered. No findings were entered on whether Compise was a significant risk to the victim or the community, or whether she could not be appropriately managed in the community. The circuit court delayed sentencing for a presentence investigation.
On February 15, 2018, a hearing was held on sentencing. Two days earlier, Compise finally made a $100 payment on restitution. The circuit court found that Compise was a low risk to reoffend and was a good candidate for probation. Therefore, Compise was sentenced to one year of incarceration, probated for a five-year period with a sanction.
On February 16, 2018, the written order memorializing this decision was entered. Compise was placed on probation with the sanction that she needed to either serve thirty days on home incarceration with a work release or ten days of incarceration with a work release.
Compise argues that the circuit court erred in voiding her pretrial diversion by failing to follow KRS 439.3106(1) by failing to make findings that Compise was a significant risk to the victim or the community and could not be managed in the community, and erroneously concluding that Compise was a risk to reoffend based on her lack of accountability. In support of this argument, Compise states she had not missed reporting after the arrest, her subsequent placement on probation showed that she could effectively be managed in the community, and her failure to pay restitution was due to her not knowing the process to pay restitution, in part because the restitution order did not comply with KRS 532.033. Compise argues that pursuant to KRS 439.3106, sanctions alone were a proper remedy, not removal from diversion.
Pretrial felony diversion offers qualified defendants the opportunity to enter a plea, but upon successful completion of the diversion to have the charges dismissed-diverted. Helms v. Commonwealth , 475 S.W.3d 637, 641 (Ky. App. 2015). The voiding of a pretrial diversion for failure to comply with its conditions is treated the same as a probation revocation. Id. KRS 533.256(2) states that "[i]n making a determination as to whether or not a pretrial diversion agreement should be voided, the court shall use the same criteria as for the revocation of probation, and the defendant shall have the same rights as he or she would if probation revocation was sought." This means that "we can only read [ KRS 533.256(2) ] as an unqualified invocation of the criteria now found in KRS 439.3106." Richardson v. Commonwealth , 494 S.W.3d 495, 499 (Ky. App. 2015).
We review the circuit court’s decision to void pretrial diversion for abuse of discretion. Commonwealth v. Andrews , 448 S.W.3d 773, 780 (Ky. 2014) ; Helms , 475 S.W.3d at 644.
The version of KRS 439.3106 in effect at the time provided as follows:
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.
As explained in Andrews , 448 S.W.3d at 780, " 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." Specific findings of fact addressing the statutory criteria may be either written or oral. Lainhart v. Commonwealth , 534 S.W.3d 234, 238 (Ky. App. 2017). Both findings are necessary before a pretrial diversion may be voided. Burnett v. Commonwealth , 538 S.W.3d 322, 324-25 (Ky. App. 2017). We must determine whether the evidence of record before us supports such findings and whether the circuit court indeed made such findings. McClure v. Commonwealth , 457 S.W.3d 728, 732 (Ky. App. 2015).
There is no doubt Compise was required to pay restitution. Paying restitution was a condition of her pretrial diversion agreement. Furthermore, restitution was statutorily required pursuant to KRS 532.032(2). While the issue of restitution is not directly before us, the manner in which restitution was ordered in this case gives us pause. There were several indications that Compise was impoverished, such as that she was appointed the public defender and was repeatedly released on her own recognizance so that she could work because she could not afford to pay a bond. However, Compise’s former attorney apparently never raised the issue of whether Compise had the ability to pay restitution, or what periodic amount she could afford, when negotiating for pretrial diversion and failed to raise this issue when submitting a written argument about how much restitution Compise should pay. Although the circuit court must have been aware that Compise was impoverished given that it chose to omit ordering her to pay a monthly supervision fee to Probation and Parole in the order granting pretrial diversion, the court apparently never considered whether Compise had the ability to pay restitution when granting pretrial diversion or issuing its ruling on the amount of restitution due. Findings should have been made regarding Compise’s financial situation, her ability to pay restitution, and what, if any, monthly payments she could afford. See Wallace v. Commonwealth , No. 2013-CA-001031-MR, 2015 WL 603395, at *2-3 (Ky. App. Feb. 13, 2015) (unpublished) (explaining that findings must be made as to whether a defendant is a "poor person" and imposition of restitution is improper if the defendant would not be required to pay court costs or public defender fees); Neal v. Commonwealth , No. 2005-CA-001255-MR, 2007 WL 867088, at *2 (Ky. App. Mar. 23, 2007) (unpublished) (discussing that counsel is ineffective if counsel failed to inquire as to defendant’s ability to meet restitution payments and defendant in fact lacked such ability).
We may properly consider these unpublished decisions rendered after January 1, 2003, pursuant to Kentucky Rules of Civil Procedure (CR) 76.28(4)(c) because "there is no published opinion that would adequately address the issue before the court."
Not only was no inquiry made into what Compise could afford to pay in restitution, she also received a restitution order which did not comply with the statutory mandates of KRS 532.033, which provides as follows:
When a judge orders restitution, the judge shall:
(1) Order the restitution to be paid to a specific person or organization through the circuit clerk, who shall disburse the moneys as ordered by the court;
(2) Be responsible for overseeing the collection of restitution;
(3) Set the amount of restitution to be paid;
(4) Set the amount and frequency of each restitution payment or require the payment to be made in a lump sum;
(5) Monitor the payment of the restitution to assure that payment is being made;
(6) If restitution is not being paid as ordered, hold a hearing to determine why the restitution is not being paid;
(7) If the restitution is not being paid and no good reason exists therefor, institute sanctions against the defendant; and
(8) Not release the defendant from probation supervision until restitution has been paid in full and all other aspects of the probation order have been successfully completed.
"Pursuant to KRS 532.033, any order of restitution shall specify who it is to be paid to, set the amount of restitution to be paid and the amount and frequency of each payment." Commonwealth v. Adams , 566 S.W.3d 225, 231 (Ky. App. 2018). If an order of restitution fails to set forth the provisions required by KRS 532.033, it is appropriate for us to vacate and remand such an order with instructions for the court to enter a proper order. Given that the order of restitution was deficient, this is clear error and the circuit court must enter a corrected order. When it does so, the circuit court must consider Compise’s ability to pay restitution given her current financial situation.
A defendant cannot be faulted and penalized for failing to anticipate how the court wants restitution paid when a statutorily deficient order is in place. While Compise undoubtedly knew she owed restitution, where the terms of the restitution order failed to specify when she should make payments, how frequently, in what amount, and to whom, there can be no willful failure to comply with the conditions of supervision by failing to make payments, let alone a risk to the victim or community by failing to pay. Accordingly, failure to pay restitution should not have been considered by the circuit court when determining whether Compise’s diversion should be revoked under KRS 439.3106.
Additionally, we note that Compise’s testimony raised an issue of fact regarding whether she was able to pay the restitution (whether or not she could afford to do so when restitution was first ordered) and the circuit court should have made explicit findings regarding, given the lack of an appropriate court order specifying how restitution was to be paid, "(1) whether [Compise] made sufficient bona fide attempts to make payments but [had] been unable to do so through no fault of [her] own and, if so, (2) whether alternatives to imprisonment might suffice to serve interests in punishment and deterrence." Commonwealth v. Marshall , 345 S.W.3d 822, 828 (Ky. 2011). Marshall has been interpreted to apply to all types of probation revocation actions where failure to pay restitution is a ground for revocation. See, e.g. , Mbaye v. Commonwealth , 382 S.W.3d 69 (Ky. App. 2012) (applying Marshall to restitution in a theft by deception case).
However, the circuit court also relied on other violations of the conditions of supervision in making its decision to terminate Compise’s pretrial diversion. According to the evidence presented by the Commonwealth, Compise repeatedly refused to cooperate with other conditions of her supervision: Compise failed to provide DNA, failed to provide urine for a drug screen, failed to obey instructions (leaving when told to remain in the lobby), and failed to report twice. Compise already had a history of non-compliance with pretrial diversion as earlier in the case she failed to follow the terms of her home incarceration. Even after the first violation report, Compise failed to provide her DNA; she still failed to do so after she was arrested following the second report, for more than another month.
These instances of non-compliance were more than sufficient to justify revocation of pretrial diversion because a defendant who will not cooperate with the conditions of her supervision may indeed constitute a significant risk to the community at large and be unmanageable in the community. However, the circuit court failed to make such findings. Instead, the circuit court’s oral findings were that Compise’s non-compliance with her probation officer was knowing and willful, Compise was a risk to reoffend because of her lack of accountability, and she was also a risk to the community based on her lack of accountability. The circuit court never made a finding that Compise was a significant risk. While the circuit court may have intended to make such a finding, it was never articulated. Additionally, we do not know if the circuit court would have found Compise to be a risk without its prior determination that Compise was willfully failing to pay restitution. While we disagree with Compise’s argument that the circuit court’s placement of Compise on probation after she made a restitution payment shows conclusively that she could be managed in the community, it is an indication that perhaps a graduated sanction would have been appropriate to encourage compliance. Therefore, we vacate and remand for the circuit court to consider whether Compise’s failure to abide by valid conditions of supervision constituted a significant risk to her prior victim or the community at large, and whether Compise could not be managed in the community, before deciding anew whether her pretrial diversion needed to be revoked or whether she should receive graduated sanctions pursuant to KRS 439.3106(2).
Compise’s final argument, in which she seeks palpable error review, is that voiding her pretrial diversion frustrates the purposes of KRS 439.3106 and 439.3107 and she was entitled to graduated sanctions instead with a response range of two, which the circuit court should have made Probation and Parole follow. Compise’s argument is not well taken.
The circuit court in setting the conditions of Compise’s pretrial diversion supervision had discretion in deciding whether or not to require Probation and Parole to use graduated sanctions in supervising her. In Andrews , 448 S.W.3d at 777-79, the Kentucky Supreme Court compared how it was optional for a circuit court in imposing conditions of probation to authorize graduated sanctions, citing KRS 439.553, but mandatory for a circuit court to consider graduated sanctions before revoking probation pursuant to KRS 439.3106(2).
KRS 439.553 (emphasis added) provides as follows:
For supervised individuals on probation, the court having jurisdiction of the case shall determine the conditions of community supervision and may impose as a condition of community supervision that the department supervising the individual shall, in accordance with KRS 439.3108, impose graduated sanctions adopted by the department for violations of the conditions of community supervision.
See 501 Kentucky Administrative Regulations (KAR) 6:250 § 2 (making the application of graduated sanctions by Probation and Parole contingent on the sentencing court ordering the offender to be subject to graduated sanctions as a condition of probation).
However, in the order placing Compise on pretrial diversion, the circuit court chose not to make graduated sanctions a condition of her diversion. Therefore, Probation and Parole lacked the authority to impose graduated sanctions and there can be no palpable error either for Probation and Parole failing to do that which was not authorized by the circuit court or the circuit court failing to order Probation and Parole to do what it was not previously authorized to do. Additionally, even had graduated sanctions been mandated as a condition of Compise’s pretrial diversion, graduated sanctions shall not be used for "[a]bsconding supervision" or a "[d]emonstrated pattern of failure to comply with conditions of supervision[.]" 501 KAR 6:250 § 2(2)(b)1 and 9.
Accordingly, we vacate the order removing Compise from pretrial diversion and judgment of conviction and the order placing Compise on probation. We remand for the Jefferson Circuit Court to make findings as to whether the violations of the conditions of Compise’s pretrial diversion (besides failure to pay restitution) constituted a significant risk to her prior victims or the community at large and whether Compise cannot be appropriately managed in the community pursuant to KRS 439.3106(1) or whether alternative sanctions were appropriate under KRS 439.3106(2). We also vacate the restitution order and remand for the circuit court to enter an order which complies with KRS 532.033.
THOMPSON, L., JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY.