Opinion
NO. 2016-CA-000451-MR NO. 2016-CA-000452-MR
01-18-2019
JOSEPH CRENSHAW APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Renee Sara Vandenwallbake Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEALS FROM HARDIN CIRCUIT COURT
HONORABLE KEN M. HOWARD, JUDGE
ACTION NOS. 14-CR-00051 & 14-CR-00052 OPINION
REVERSING AND REMANDING
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BEFORE: D. LAMBERT, MAZE, AND NICKELL, JUDGES. MAZE, JUDGE: Joseph Crenshaw appeals from an order of the Hardin Circuit Court revoking his probation. We agree with Crenshaw that the Commonwealth failed to provide sufficient notice of one of the alleged violations prior to the hearing. Furthermore, the trial court failed to make sufficient factual findings to support either violation or whether lesser sanctions were not appropriate. Hence, we reverse and remand for additional proceedings and factual findings.
Judge Debra Hembree Lambert concurred in this opinion prior to her accepting election to the Kentucky Supreme Court effective January 7, 2019. --------
In 2013, Crenshaw was charged as a juvenile with two counts of first-degree robbery, three counts of receiving stolen property, firearm-enhanced, and three misdemeanor counts of receiving stolen property. Because the felony counts involved the use of a firearm, Crenshaw was automatically transferred to circuit court for trial as a youthful offender pursuant to Kentucky Revised Statute (KRS) 635.020(4). Subsequently, Crenshaw entered guilty plea to three counts of complicity to first-degree robbery and one count of receiving stolen property (firearm). Pursuant to the Commonwealth's recommendation, the trial court sentenced Crenshaw to twelve years' imprisonment.
Since he was still a juvenile, Crenshaw was committed to the Department of Juvenile Justice until his eighteenth birthday. At his adult sentencing on October 16, 2015, the trial court placed Crenshaw on probation subject to the supervision of the Kentucky Department of Probation and Parole. The trial court imposed numerous conditions on Crenshaw's probation, including requirements that he maintain an approved, consistent address, and that he not leave Hardin County without permission of his probation officer.
On January 20, 2016, a probation officer and another officer, Officer Wright, conducted a home visit at Crenshaw's listed residence at his mother's house. She reported that Crenshaw "did not really stay" at the residence, and that he mostly stayed with his aunt or girlfriend. She also reported that Crenshaw last came by earlier that morning when he got some clothes and left again. The officers then went to the aunt's address, but she stated that Crenshaw did not reside with her. Based on their inability to verify Crenshaw's current address, the probation officer filed a motion to revoke his probation.
On February 16, 2016, the trial court held a hearing on the motion to revoke. The Commonwealth called Officer Wright to testify regarding the circumstances of the home visit. In addition, Officer May testified that he had viewed two surveillance videos from pawnshops in Louisville, and he had seen Crenshaw on the videos. Officer May stated that he had viewed the videos during an investigation of an unrelated robbery, but Crenshaw was not a subject of that investigation. Officer May also stated that Crenshaw had not been given permission to leave Hardin County.
In response, Crenshaw called his mother to testify on his behalf. She admitted that Crenshaw sometimes kept irregular hours and that he sometimes visited with his aunt or girlfriend. However, she testified that Crenshaw always stayed overnight in her home. Crenshaw's counsel further argued that the officer's testimony regarding the surveillance videos was not sufficiently reliable to establish that he had left the county without permission. Counsel also argued that the alleged violations did not demonstrate that Crenshaw was a danger to prior victims or that he could not be managed in the community.
At the conclusion of the hearing, the trial court expressed concerns that Crenshaw was coming home at odd hours and was not being properly supervised. In a subsequent order, the court found that the Commonwealth had proven both probation violations. The court also found that Crenshaw's violations constituted a significant risk to the community at large and that he could not be appropriately managed within the community. Consequently, the court revoked Crenshaw's probation and sentenced him to serve his remaining twelve-year sentence. Crenshaw now appeals.
We review a trial court's decision to revoke probation for an abuse of discretion. See Southwood v. Commonwealth, 372 S.W.3d 882, 884 (Ky. App. 2012). The trial court abuses its discretion only when its decision is "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Id. (quoting Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007)). In other words, a trial court abuses its discretion when its decision rests on an error of law (such as the application of an erroneous legal principle or a clearly erroneous factual finding), or when its decision cannot be located within the range of permissible decisions allowed by a correct application of the facts to the law. See Miller v. Eldridge, 146 S.W.3d 909, 915 n.11 (Ky. 2004).
As an initial matter, we agree with Crenshaw that the Commonwealth failed to provide sufficient notice that it intended to seek revocation based on Crenshaw's unauthorized trips to Jefferson County. In the context of a probation revocation, due process requires, among other things, written notice of the claimed probation violations. See Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 1762, 36 L. Ed. 2d 656 (1973). In addition, due process requires that a probationer be given time to prepare and to obtain evidence. Hunt v. Commonwealth, 326 S.W.3d 437, 440 (Ky. 2010).
In this case, the Commonwealth made a handwritten notification of the second ground for revocation sometime between the initial arraignment on January 20, 2016, and the revocation hearing on February 16, 2016. However, that notification is not included in the record. At the start of the revocation hearing, Crenshaw's counsel asked for clarification about the notification because it was the first time he had seen it. We must conclude that this notice failed to meet the minimum requirements of due process.
The Commonwealth argues that there was substantial evidence supporting the trial court's finding that Crenshaw had left Hardin County without prior permission. But while Officer May identified Crenshaw on the surveillance videos, he was unable to remember the exact dates of the video or what Crenshaw was wearing. In addition, Officer May did not clearly state whether he had been told that Crenshaw appeared on the videos. Given this equivocal testimony, we conclude that Crenshaw was substantially prejudiced by the Commonwealth's untimely notice that it intended to rely on this alleged violation.
Crenshaw next challenges the sufficiency of the evidence supporting the trial court's finding that he failed to maintain a consistent, approved address. A revocation of probation requires proof by a preponderance of the evidence that a violation has occurred. Id. at 439 (citing Rasdon v. Commonwealth, 701 S.W.2d 716, 719 (Ky. App. 1986); Murphy v. Commonwealth, 551 S.W.2d 838 (Ky. App. 1977)). We agree with the Commonwealth that trial court was in the best position to evaluate the weight and credibility of the Crenshaw's mother's testimony at the hearing as opposed to her statements to the parole officer.
Nevertheless, it is not clear whether the trial court's finding of a violation was actually based on Crenshaw's failure to live at his mother's residence or the fact that he simply was not being adequately supervised. In its written order, the trial court found the former. But in its oral statements at the revocation hearing, the court seemed to lean more toward the latter.
What I'm seeing here is a return to old places and a return to old habits. That causes me great concern. Either he is not living at home or he is not there enough that he is effectively supervised by his mother; that she knows where he is. She doesn't. So to me, you say "I've moved" or "I'm never there enough," it doesn't make much difference to me.
We must note that the Commonwealth did not allege that Crenshaw violated the conditions of any curfew to which he was subject. Furthermore, the Commonwealth did not give notice that it intended to rely on Crenshaw's lack of supervision as a basis to revoke his probation. Given these contradictory findings, it is not clear that the trial court found that Crenshaw had actually failed to maintain a consistent address or if he simply was not staying at home enough. There was evidence which could have supported a finding that Crenshaw was not living at his mother's address, but it is not clear from the record that the trial court actually made such a finding. Accordingly, we must remand this matter for more specific findings on the merits of both violations.
Lastly, Crenshaw argues that the trial court failed to consider whether lesser sanctions are appropriate. KRS 439.3106(1) states that defendants on probation shall be subject to violation revocation 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 . . . ." In Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014), our Supreme Court emphasized that KRS 439.3106 does not diminish a trial courts traditional discretion over revocation. Id. at 780. To the contrary, the Court stated that "[w]hile HB 463 reflects a new emphasis in imposing and managing probation, it 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. Thus, in Andrews, the Court concluded that a probationer's single positive drug test and subsequent dishonesty concerning its cause was sufficient to warrant revocation under the statute. Id. at 780-81.
Once the trial court makes express findings as to both elements of KRS 439.3106(1), the court must set forth its reasoning concerning whether revocation or a lesser sanction is a more appropriate sanction. McClure v. Commonwealth, 457 S.W.3d 728, 734 (Ky. App. 2015). After finding that Crenshaw violated conditions of his probation, the trial court concluded that Crenshaw's violation showed that he constituted a significant risk to the community at large and that he could not be appropriately managed in the community. The trial court did not set out its reasoning why revocation was the most appropriate sanction.
Crenshaw further argues that this conclusion was not supported by the evidence. He notes that the violations were minor and did not involve any illegal conduct. In addition, Crenshaw points out that he maintained his employment and was otherwise compliant with the conditions of his probation. He also contends that the trial court could have imposed additional probation conditions, including a stricter curfew, to address its concerns about his irregular hours and lack of supervision.
In response, the Commonwealth emphasizes the very serious nature of the underlying offenses. Furthermore, when the trial court granted Crenshaw probation when he turned eighteen, it advised him at that time that he was subject to strict compliance with its terms. The Commonwealth argues that Crenshaw's "return to old habits" demonstrates that he was not taking those conditions seriously and that he cannot be adequately managed in the community.
In Andrews, our Supreme Court emphasized that KRS 439.3106 permits, but does not require, a trial court to impose lesser sanctions. Andrews, at 780. Furthermore, a finding that the probationer poses a "significant risk" does not require evidence that the probationer committed "some heinous act" before he can be found to be a risk to someone other than himself. McClure, at 733. Nevertheless, there must be some evidence of substance that the probationer poses a significant risk to the community and that he cannot be adequately managed outside of incarceration. Id.
We are mindful of the trial court's broad discretion determining whether revocation is the most appropriate sanction. But even if the Commonwealth establishes the probation violations by a preponderance of the evidence, we conclude that additional findings are necessary to support revocation under the facts of this case. Of course, the trial court may consider the nature and the severity of the underlying offenses for which Crenshaw was convicted. The court may also consider the extent to which Crenshaw was previously on notice that he was subject to strict compliance. On the other hand, the court must also consider, among other relevant factors, Crenshaw's adjustment on supervision, the severity of his current violations, the number and severity of his previous violations, and the extent to which graduated sanctions were imposed for previous violations. Andrews, at 778.
The current case demonstrates the importance of such findings to afford meaningful appellate review of a decision to revoke probation. Crenshaw's alleged violations are relatively minor, and the trial court correctly noted the substantial progress he has made since committing his crimes. On the other hand, his recent actions suggest a troubling "return to old habits," particularly in light of the violent nature of his offenses. As long as the record shows that the trial court considered and balanced all relevant factors, we generally will defer to the trial court's exercise of discretion regarding revocation. But when that reasoning is not clearly stated in the record, either in oral or written findings, we are unable to determine whether the trial court's decision was arbitrary or based upon sufficient findings. The trial court's oral and written findings do not address whether lesser sanctions, such as a stricter curfew, would have been appropriate. Since the decision in Crenshaw's case is such a close call, we must remand this matter for additional factual findings.
Accordingly, the order of the Hardin Circuit Court revoking Crenshaw's probation is reversed. This matter is remanded for an additional hearing on the allegation that Crenshaw left his area of supervision. The trial court shall make specific factual findings as to each alleged probation violation, as well as the appropriateness of any lesser sanctions. Nothing in this opinion should be construed to limit the trial court's discretion to revoke probation if such factual findings are made and are supported by sufficient evidence of record.
ALL CONCUR. BRIEFS FOR APPELLANT: Renee Sara Vandenwallbake
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky