Opinion
NO. 2017-CA-000890-MR NO. 2017-CA-000891-MR
06-07-2019
RICKY GREGORY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Molly Mattingly Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Frankfort, Kentucky Julie Scott Jernigan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WAYNE CIRCUIT COURT
HONORABLE VERNON MINIARD, JR., JUDGE
ACTION NOS. 12-CR-00126 AND 13-CR-00021 OPINION
VACATING AND REMANDING
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BEFORE: KRAMER, LAMBERT, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Ricky Gregory appeals from a May 3, 2017, order of the Wayne Circuit Court revoking his probation. Because the trial court failed to make a mandatory finding, we must vacate and remand.
In March 2013, pursuant to his plea of guilty but mentally ill, Gregory was sentenced to five-years' imprisonment for assaulting a corrections employee, with the sentence to be probated for five years. Soon thereafter, again pursuant to his plea of guilty but mentally ill, Gregory received a concurrent five-year probated sentence for one count of criminal mischief in the first degree, possession of a controlled substance in the first degree, and some misdemeanors.
In the two-plus years he was on probation, Gregory was sanctioned multiple times. Twice in 2015, Gregory received sanctions (including four days of detention and increased reporting to his probation officer) for having used marijuana. In March 2016, Gregory received twenty-eight days of discretionary detention for being convicted of several misdemeanors.
In April 2016, the Commonwealth first moved to revoke Gregory's probation due to his repeated failure to report to his probation officer. However, in May 2016, the trial court ordered Gregory to enroll in rehabilitation instead of revoking his probation. In October 2016, the Commonwealth again moved to revoke Gregory's probation for failing to report to his probation officer. However, in January 2017, the trial court ordered him to remain on probation.
In April 2017, the Commonwealth filed its third motion to revoke Gregory's probation, alleging he had used methamphetamines and marijuana. On May 2, 2017, the trial court conducted a hearing on the motion, at which both Gregory and his probation officer testified. At the close of the hearing, the court ruled that it would revoke Gregory's probation and reinstate his five-year prison sentence because he could not be adequately supervised in the community. The trial court's subsequent written order entered May 3, 2017, lists two reasons for the revocation: 1) Gregory "is in need of correctional treatment that can be provided most effectively by [his] commitment to a correctional institution" and 2) continuing Gregory's probation "would unduly depreciate the seriousness" of his offenses and his "continued violation of the terms and conditions of his probation." This appeal followed.
We begin our analysis by noting that our review of a circuit court's decision to revoke probation is for an abuse of discretion. McClure v. Commonwealth, 457 S.W.3d 728 (Ky. App. 2015). Under the abuse of discretion standard, we will not disturb the trial court's ruling unless "the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. Andrews, 448 S.W.3d 773, 780 (Ky. 2014) (quoting Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)). Our review proceeds accordingly.
Gregory contends the trial court's decision must be vacated because the court failed to find that he was a threat to either a victim or the community. Even though the record seems to contain evidence which could potentially support such a conclusion, we agree with Gregory that the trial court abused its discretion by not making any findings on that issue, as is required by Kentucky Revised Statutes (KRS) 439.3106.
The trial court's failure to find that Ricky Gregory presents a risk to a victim or the community is arguably an unpreserved error as Gregory only asked for imposition of alternative sanctions at the hearing and did not ask the trial court for specific additional findings. However, the Commonwealth of Kentucky has not raised any preservation arguments and we have held that a trial court's failure to make the requisite Kentucky Revised Statutes 439.3106 findings is a palpable error under Kentucky Rule of Criminal Procedure 10.26. See, e.g., Burnett v. Commonwealth, 538 S.W.3d 322, 324 (Ky. App. 2017).
In McClure, 457 S.W.3d at 732, another panel of this Court stated: "[T]he General Assembly intended the task of considering and making findings regarding the two factors of KRS 439.3106(1) to serve as the analytical precursor to a trial court's ultimate decision: whether revocation or a lesser sanction is appropriate." We must therefore review and apply the statute as it pertains to the particular factual circumstances of this case as previously summarized.
KRS 439.3106 provides, in relevant part:
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.
The Kentucky Supreme Court has interpreted the application of KRS 439.3106 in probation revocation proceedings in Andrews, 448 S.W.3d 773. Therein, the Supreme Court concluded that KRS 439.3106 sets forth a "new criteria" that a circuit court must consider in a probation revocation proceeding. Specifically, the Court held that a circuit court is mandated by KRS 439.3106(1) to determine "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." Andrews, 448 S.W.3d at 780. A trial court must make express findings for both criteria. See, e.g., Price v. Commonwealth, 534 S.W.3d 805, 807 (Ky. App. 2017) ("Circuit courts must make both findings under KRS 439.3106.").
Here, the circuit court did expressly find that Gregory cannot be managed in the community, but the Commonwealth admits the court failed to expressly find that Gregory's inability to abide by the conditions of his supervision constitutes a significant risk to prior victims or the community. Instead of confessing error, however, the Commonwealth posits what amounts to a harmless error theory, insisting the trial court should be affirmed because "the trial court's intention was obvious and the record supports revocation." Commonwealth's Brief at 6.
Gregory does not actively contest that finding. --------
We disagree. Since the enactment of KRS 439.3106, Kentucky courts have consistently held that the trial courts of Kentucky are required to determine initially if a person for whom revocation is being sought is a risk to the community. In fact, a trial court's failure to do so has been deemed to be a palpable error, which means the Commonwealth's harmless error argument is inherently unavailing. See Burnett, 538 S.W.3d 322. We are not at liberty to scour the record to determine if it contains sufficient evidence to support either or both of the KRS 439.3106(1) findings in situations when a trial court fails to comply with the statute. See, e.g., Price, 534 S.W.3d at 807 ("Because the circuit court failed to make findings under both elements of KRS 439.3106(1), we may not review the sufficiency of the evidence for those findings."); McClure, 457 S.W.3d at 733 ("McClure next asserts that the record is devoid of any express written or oral finding concerning whether McClure could be managed within the community; and he is correct. While evidence existed in the record to support it, the trial court failed to make a finding on this essential second element. Under the analysis in Andrews, the trial court's decision to revoke, in the absence of this finding, constituted an abuse of discretion, and the matter must be remanded.").
We observe that the circuit court below has been more than tolerant with Gregory in what appears to be an intentional pattern of probation violations. Notwithstanding, the Wayne Circuit Court revoked Gregory's probation without having found that he presents a significant risk to his victims and/or the community, contrary to applicable law. Thus, we must reluctantly vacate the order of revocation and remand for proceedings consistent with this opinion.
ALL CONCUR. BRIEF FOR APPELLANT: Molly Mattingly
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky
Frankfort, Kentucky Julie Scott Jernigan
Assistant Attorney General
Frankfort, Kentucky