Opinion
NO. 2019-CA-000209-MR NO. 2019-CA-000324-MR
03-06-2020
JESSE CULVER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Karen S. Maurer Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Lauren Rachel Lewis Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEALS FROM BALLARD CIRCUIT COURT
HONORABLE TIMOTHY A. LANGFORD, JUDGE
ACTION NOS. 16-CR-00048 AND 10-CR-00060 OPINION
AFFIRMING IN PART AND REVERSING IN PART
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BEFORE: ACREE, CALDWELL, AND KRAMER, JUDGES. CALDWELL, JUDGE: In this consolidated appeal, Appellant Jesse Culver appeals the revocation of his probation by the Ballard Circuit Court and the imposition by that court as restitution the costs incurred due to his extradition from the state of Oregon back to Kentucky. For the following reasons, we affirm the revocation of his probation but reverse the order assessing restitution.
Culver was first placed on probation by the Ballard Circuit Court in 2010 after pleading guilty to operating a motor vehicle on a suspended or revoked license, fleeing and evading police in the first-degree and wanton endangerment in the first-degree. At the time of sentencing, Culver informed the court he was not using drugs and was a college student.
Two years later, the Commonwealth sought revocation of his probation when he failed to complete a community service requirement and when he was found to have used controlled substances, all in violation of his terms of probation. At that time, he informed the court that he was still attending college and was employed as well. The trial court ordered him to serve weekends in jail and added community service requirements, hoping to allow Culver to remain in college.
Nevertheless, Culver continued to run afoul of the law and was again found to have violated his probation in 2014 when he operated a vehicle while under the influence, possessed drug paraphernalia, failed to signal or used an improper signal, and failed to complete the community service previously assigned him. Yet again, the trial court continued his probation, adding further conditions to the terms of probation.
Again in 2015, Culver was arrested and charged with absconding from probation supervision, failing to submit to drug gesting, using a controlled substance and other violations of probation conditions. At this time, the trial court revoked his probation. However, several months later and after Culver was admitted to a substance abuse program and filed a motion for shock probation, the trial court granted the shock probation motion and extended his probation an additional five years.
In 2016, Culver was again arrested and pleaded guilty to promoting contraband. The trial court ordered him released to a substance abuse treatment facility. Soon after completing the treatment program, Mr. Culver was once again in trouble, having failed to appear in drug court. He could not be found by his probation officer, and his whereabouts were unknown until Culver wrote the trial judge a letter, informing him that he was incarcerated in Oregon, having been charged with theft from his employer. The Commonwealth then began the process of extraditing him to face probation revocation.
Once Culver had been returned to Ballard County, the trial court revoked his probation, finding that any other sanction would not be appropriate given the many prior graduated sanctions which had been unsuccessfully imposed upon him. The trial court also ordered that Culver pay to the Kentucky State Treasurer the costs of his extradition, $4,877.71.
He appeals that decision to this Court as a matter of right.
1. The trial court did not abuse its discretion in revoking Culver's probation.
In order to be considered an abuse of discretion, a trial court's decision must be "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007) (quoting Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)). Unless there is a "flagrant miscarriage of justice," a trial court's decision will be affirmed. Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983). "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, 807-08 (Ky. App. 2008) (citing Messer v. Commonwealth, 754 S.W.2d 872, 873 (Ky. App. 1988)).
The quantum of proof required to support revoking probation is by a preponderance of evidence that the probationer has violated the terms of his probation. Miller v. Commonwealth, 329 S.W.3d 358 (Ky. App. 2010). Further, when revoking supervised probation, the trial court must consider the factors set forth in KRS 439.3106.
Kentucky Revised Statutes.
The Appellant challenges the sufficiency of the trial court's ruling revoking probation, citing Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014). In Andrews, the Kentucky Supreme Court clearly articulated what is required of trial courts in passing on questions of revocation of probation: "We conclude 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." Id. at 780.
Mr. Culver argues that the trial court failed to clearly articulate before announcing its decision to revoke his probation the dual considerations made clear in Andrews, (1) whether the probationer constitutes a significant risk to prior victims or the community at large and (2) whether he or she can be managed in the community.
Despite Mr. Culver's arguments to the contrary, there is in the law no requirement that the trial court engage in a detailed analysis of the facts supporting its decision to revoke, so long as a review of the record supports such a finding. In other words, the record must support a finding that the trial court did not abuse its discretion. While in Helms v. Commonwealth we did caution trial courts not to simply recite the standards articulated in Andrews, but to ensure there is proof in the record to support findings upon a decision to revoke, we did not, as Mr. Culver seems to suggest, require detailed findings be articulated to pass muster. 475 S.W.3d 637 (Ky. App. 2015).
A probation officer testified at the revocation hearing held on January 4, 2019, and listed the allegations supporting the motion to revoke Culver's probation. The allegations offered during her testimony were: absconding, failure to complete substance abuse treatment which resulted in being terminated from drug court; a new felony arrest in Henry County, Tennessee; a new felony conviction in Multnomah County, Oregon, for theft offenses; and failure to waive extradition. Mr. Culver stipulated to the accuracy of the allegations recited by the probation officer during his hearing. Further, Mr. Culver stipulated that he had previously been granted graduated sanctions by the court for prior probation violations. The trial court then expressly found that given all of the stipulated violations and the fact that previous graduated sanctions had not been sufficient, revocation was appropriate. There being more than sufficient reasons for revocation referred to by the trial court during the revocation hearing, the trial court's order revoking probation is hereby affirmed.
2. The trial court erred in assessing the costs of extradition as restitution.
Moving to the question of the efficacy of the trial court's order for restitution to be paid to the Kentucky State Treasury for the costs associated with his extradition from Oregon, it matters not to our consideration, as the Commonwealth suggests, that the Appellant fought extradition and did not willingly submit to being transported back to Kentucky to face revocation. The costs associated with extradition were not increased in any way by his recalcitrance, but even if they had been, such cannot form a basis for the imposition of restitution for the costs associated with extradition.
As Mr. Culver points out, this question came before the Court in Vaughn v. Commonwealth in 2012, and at that time this Court held that the costs of extradition are not recoverable from the convicted citizen as restitution as KRS 440.090 does not so provide, and the Commonwealth cannot properly be viewed a victim of criminal conduct such that a restitution order would be appropriate. 371 S.W.3d 784, 786 (Ky. App. 2012). Extradition of convicted persons is clearly a law enforcement function and properly the work of the state and is not extraordinary in any way. Sevier v. Commonwealth, 434 S.W.3d 443, 469 (Ky. App. 2014) (where an order of restitution to hire professionals to clean up a methamphetamine manufacturing operation was held necessary as a proper example of when restitution might properly be ordered as such was outside the scope of knowledge of law enforcement).
Here, the movement of an absconded probationer from the place he was ultimately found to the court he offended is clearly within the scope of law enforcement and thus is not an expense properly apportioned to the absconder. That portion of the Ballard Circuit Court's order is hereby reversed.
ALL CONCUR. BRIEFS FOR APPELLANT: Karen S. Maurer
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Lauren Rachel Lewis
Assistant Attorney General
Frankfort, Kentucky