Opinion
NO. 2016-CA-001602-MR
02-02-2018
JUSTIN RYAN JOHNSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Robert C. Yang Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James Havey Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CLAY CIRCUIT COURT
HONORABLE OSCAR G. HOUSE, JUDGE
ACTION NO. 12-CR-00084 OPINION
VACATING AND REMANDING
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BEFORE: KRAMER, CHIEF JUDGE; COMBS AND THOMPSON, JUDGES. COMBS, JUDGE: Appellant, Justin Ryan Johnson (Justin), appeals from an Order of the Clay Circuit Court that voided his participation in pre-trial diversion and sentenced him to three-years' imprisonment for failure to pay child support. After our review, we vacate and remand.
On March 10, 2016, the Appellee, Commonwealth of Kentucky (Commonwealth), filed a Motion to set aside the pre-trial diversion agreement on grounds that Johnson had failed to pay child support as ordered.
On April 4, 2016, the court conducted a hearing on the Motion. The Commonwealth called Barbara Gray from the Division of Child Support. She testified about the amount of Johnson's arrearage. His last payment was on April 30, 2015, and they received his bond money in May 2015. Ms. Gray also testified that she had no contact with Johnson.
Johnson called Christina Johnson (Christina), his wife, as a witness. She testified that he has no income. She explained that Johnson suffers from seizures - from two to 15 a month -- which afflict him in multiple occurrences. She testified that he cannot remember anything and that he is disoriented after a seizure. The seizures developed following a motor vehicle accident. According to Christina, Johnson tried to work at a McDonald's, but the employment threw him into seizures. McDonald's had to let him go because the seizures rendered him basically unable to function. His seizures are not under control, and insurance will not pay for a two or three-night stay in Lexington where he needs to go in order to receive a proper diagnosis. Christina testified that they are waiting for a decision in Johnson's Social Security case.
Medical records from the Neurology Clinic of London were entered into the record. On August 14, 2014, Johnson was first seen in consult for seizures that started after the 2013 vehicular accident in which he sustained multiple injuries and was rendered "unconscious for about 30 minutes.... Pertinent Medical History [reflects] traumatic brain injury and generalized motor seizures ...." A September 4, 2015, encounter note reflects that the assessment was:
1. Complex partial seizure evolving to generalized seizure; 2. Localization-related epilepsy with complex partial seizures with intractable epilepsy; and 3. Generalized anxiety disorder.The most recent entry, dated January 11, 2016, resulted from a follow-up from an emergency room visit for a seizure. The history of his present illness reflects that his seizures have increased in frequency, severity and duration.
Complex partial seizure is defined as "a seizure with impairment of consciousness, occurring in a patient with focal epilepsy." Stedmans Medical Dictionary 807300.
On August 18, 2016, the trial court entered an Order voiding Johnson's pre-trial diversion, in relevant part, as follows:
1. Defendant, represented by counsel, ... previously entered a Guilty plea to the crime of Flagrant Non Support, a Class D felony. On May 4, 2015, at his request, Defendant was placed on Pretrial Diversion for a period of 5 years.
2. The Commonwealth's attorney moved ... to void Defendant's participation in Pretrial Diversion because: the Defendant failed to pay his child support as agreed to in the plea agreement and as ordered in the Pretrial Diversion ORDER.
3. Defendant has violated the conditions of Pretrial Diversion because: [He] has not complied with this Court's Pretrial Diversion Order and his agreement thereto by not paying his child support. The defendant relies on his medical records from August of 2015 through January 2016 which indicate that he has medical issues not uncommon to folks that are employed on a daily basis. The Court specifically notes the finding on his report of January 11, 2016, page 4, which finds that: "6. History of noncompliance with Medical treatment". [sic] Mr. Johnson, according to his wife's testimony, is relying on these reports as further evidence that [he] is relying on the reports as proof that he seeking [sic] disability social security benefits which would assist in his child support payments. This Court cannot understand how an Administrative Law Judge could make such a finding based on these, although the Court has delayed for too long this ruling hoping on such a miracle taking place.
Based on the above findings, this Court further finds by a preponderance of the evidence that Mr. Johnson poses a significant threat to the community and that he cannot be managed in the community.
Johnson now appeals and contends that the trial court erred in voiding his diversion by not following KRS 439.3106(1) and (2). He also argues that reversal is warranted because the trial court did not follow Commonwealth v. Marshall, 345 S.W.3d 822 (Ky. 2011).
Kentucky Revised Statutes.
KRS 533.256(2) provides 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." Those criteria are set forth in KRS 439.3106, 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.
Before probation may be revoked, KRS 439.3106(1) requires the trial court to consider both "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...." Commonwealth v. Andrews, 448 S.W.3d 773, 780 (Ky. 2014) (Emphasis added). Andrews has elaborated at length on these statutes and has emphasized that probationers must not be incarcerated merely for minor probation violations. Id. at 779.
Although ... such findings do not necessarily have to be in writing, ... the trial court must make such findings specifically on the record. It is not enough that an appellate court might find some evidence in the record to
support a reason for revoking probation by reviewing the whole record.Commonwealth v. Marshall, 345 S.W.3d 822, 833-34 (Ky. 2011) (Emphasis added).
As this Court explained in Helms v. Commonwealth, 475 S.W.3d 637, 645 (Ky. App. 2015), a perfunctory recital of the language in KRS 439.3106 is not sufficient. "There must be proof in the record established by a preponderance of the evidence that a defendant violated the terms of his release and the statutory criteria for revocation has been met." Id. However, the trial court retains its discretion. "Our proper role is merely to evaluate the sufficiency of the evidence and whether an abuse of the trial court's discretion occurred." McClure v. Commonwealth, 457 S.W.3d 728, 734 (Ky. App. 2015). Helms is particularly relevant to the case before us. In Helms, we held that KRS 439.3106 applies to individuals placed on pre-trial diversion. Thus, the Andrews facts pertaining to probationers apply with equal force to the recipients of pre-trial diversion, implicating heightened due process requirements for revocation.
Johnson first argues that the trial court did not follow KRS 439.3106(1). We agree. The trial court summarily concluded that Johnson poses a significant threat to the community and that he cannot be managed in the community. Its declaration was simply a perfunctory recital of the statutory criteria for revocation and lacks the specificity required both by Marshall and by Andrews.
We also note the observations by the court: (1) that Johnson's medical issues "are not uncommon to people employed on a daily basis" and (2) that it could not understand how an ALJ would find him disabled. That recital is not based upon any evidence of record. See Riley v. Wallace, 188 Ky. 471, 222 S.W. 1085, 1086 (1920) ("[I]t matters not what is known to the judge if it is not known to him judicially ...."); Commonwealth v. Howlett, 328 S.W.3d 191, 193 (Ky. 2010) ("[J]udge may not ... interject facts (excluding facts for which proper judicial notice is taken)." (quoting U.S. v. Berber-Tinoco, 510 F.3d 1083, 1091 (9th Cir. 2007).); Temple v. Shannon, 505 So. 2d 798, 806-07 (La. Ct. App. 1987) ("Whatever a judge's personal opinion on any subject may be, a judge is limited in the areas which he may judicially notice and his oath requires him to consciously and conscientiously overcome and guard against any personal prejudices or biases."). Consequently, the court's observation fails to qualify as judicial notice - especially in light of the requirement that the Andrews factors be specifically addressed.
We next address Johnson's argument that the trial court failed to follow Commonwealth v. Marshall, 345 S.W.3d 822 (Ky. 2011). In considering revocation of probation for nonpayment of child support, a court must
(1) consider whether the probationer has made sufficient bona fide efforts to pay but has been unable to pay through no fault of his own and (2) if so, consider whether alternative forms of punishment might serve the interests of punishment and deterrence." Id. at 828.
Although the Commonwealth concedes that the trial court did not make the findings required by Marshall, it contends the issue was not preserved for our review. Johnson asks that we review for palpable error pursuant to RCr 10.26, which provides as follows:
Kentucky Rules of Criminal Procedure.
A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.
Other panels of this Court have addressed the issue now before us. Johnson draws our attention to Allen v. Commonwealth, 2015-CA-001214-MR, 2017 WL 729781, at *2 (Ky. App. Feb. 24, 2017)(unpublished), in which this Court held that the findings of fact required under Marshall are mandatory and that "failure to make such findings constitutes palpable error ... resulting in manifest injustice under RCr 10.26." We agree. In Burnett v. Commonwealth, ___ S.W.3d ___, 2017 WL 4847691, at *1 (Ky. App. Oct. 27, 2017), and in Lainhart v. Commonwealth, ___ S.W.3d ___, 2017 WL 5664750, at *4 (Ky. App. Nov. 9, 2017), this Court recently held that the trial court's failure to make the required findings of fact under both Andrews and Marshall constituted palpable error.
Pending on discretionary review in Commonwealth v. Burnett, No. 2017-SC-000627. --------
Accordingly, we vacate the trial court's Order voiding Johnson's pre-trial diversion agreement and remand this case for reconsideration of the Commonwealth's Motion to Void Johnson's diversion agreement. On remand, the trial court is directed to enter findings of fact pursuant to KRS 439.3106, Andrews, and Marshall.
ALL CONCUR. BRIEF FOR APPELLANT: Robert C. Yang
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky James Havey
Assistant Attorney General
Frankfort, Kentucky