Summary
In Pettis v. Commonwealth, 2017 WL 244867, at *4 (Ky. App. January 20, 2017), the Court said: "The legislature did not intend for trial courts to issue bare recitations without a supporting factual basis for the trial court's decision."
Summary of this case from Adams v. CommonwealthOpinion
NO. 2014-CA-000697-MR NO. 2014-CA-000698-MR NO. 2014-CA-000699-MR
01-20-2017
EDWARD PETTIS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Robert C. Yang Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Nate T. Kolb Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CALLOWAY CIRCUIT COURT
HONORABLE DENNIS R. FOUST, JUDGE
ACTION NOS. 11-CR-00194, 12-CR-00142 AND 13-CR-00087 OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: ACREE, J. LAMBERT AND TAYLOR, JUDGES. ACREE, JUDGE: Edward Pettis appeals from three separate but identical orders of the Calloway Circuit Court, all entered on March 24, 2014, revoking his probation. After careful review of the record, we reverse and remand for additional proceedings consistent with this opinion.
Pettis was on probation in three cases, all out of Calloway County, Kentucky: 11-CR-194; 12-CR-142; and 13-CR-87.
In the first case, 11-CR-194, Pettis pleaded guilty in early 2012 to one count of flagrant non-support. The circuit court sentenced him to five years' imprisonment, probated for five years, and waived monthly supervision and drug testing fees. Within two months of sentencing, the Commonwealth moved to revoke Pettis's probation, citing Pettis's failure to abide by a probation term requiring him to pay child support and restitution.
While that motion was pending, Pettis accumulated additional criminal charges. Specifically, in August 2012, Pettis was indicted for third-degree rape and being a persistent felony offender (12-CR-142). The indictment stated that, in addition to the 2012 flagrant non-support conviction, Pettis had three other prior criminal convictions: a 2003 third-degree burglary conviction (two counts); a 2005 assault under extreme emotional disturbance conviction; and a 2010 third-degree burglary conviction.
Pettis ultimately pleaded guilty to the amended charges of second-degree sexual abuse and first-degree wanton endangerment. The latter charge was indicted as Calloway Circuit Court case number 13-CR-87.
For the crime of sexual abuse, the circuit court sentenced Pettis to twelve months' imprisonment, probated for 2 years. The circuit court again waived monthly supervision fees and the partial public defender fee, but assessed $45.00 in court costs. Pettis was also required to, and did, register as a sex offender.
For the wanton endangerment crime, the circuit court sentenced Pettis to five years' imprisonment, probated for five years. The circuit court imposed a $250.00 partial public defender fee, $25.00 per month in supervision fees, and $160.00 in court costs.
The circuit court further ordered Pettis to serve 90 days in the county jail as part of an alternative sentence in cases 12-CR-142 and 13-CR-87. Pettis would serve his time on the weekends, starting September 23, 2013, pursuant to a detailed Commitment Order. Pettis failed to report to the jail as ordered.
On September 20, 2013, Pettis was arrested and charged with soliciting prostitution in Ballard County, Kentucky. Upon his release, Pettis notified his probation officer of the new arrest. His probation officer then filed a notice of revocation hearing. The circuit court also issued a bench warrant for Pettis's arrest due to his failure to report.
On October 2, 2013, the circuit court held a joint contempt and revocation hearing. The Commonwealth presented evidence that, on September 20, 2013, Pettis, who was working as a repossession agent, offered to waive the victim's repossession fee in exchange for sex. The victim notified police. The responding officer concealed himself at the victim's house. Upon Pettis's arrival, Pettis repeated his request. The officer personally overheard, and recorded, the conversation. Pettis was then placed under arrest.
Pettis contested the October 2, 2013 hearing to the extent it related to his possible probation revocation, claiming that 501 KAR 6:250 required the circuit court to impose graduated sanctions prior to revocation. By order entered October 17, 2013, the circuit court rejected Pettis's position. It stated:
Kentucky Administrative Regulation
The end result is that this Court wants to make it perfectly clear that litigating graduated sanctions is not going to be a part of a probation revocation hearing. When the Court issues a warrant for the arrest of a person on probation . . . the Court has made a determination that graduated sanctions are not appropriate.
Additionally, when the probation officer makes its written report to the Court that graduated sanctions are not appropriate, the Court considers whether it agrees or not, and will act accordingly. . . . However, this Court will not conduct hearings to determine whether or not graduated sanctions should or should not be applied in a given case. Graduated sanctions are a tool intended to help individuals on probation and keep them out of Court. However, they only work as well as the parties involved, and the Court is not required by 501 KAR 6:250 to, nor will it, conduct hearings as to whether graduated sanctions should have been applied in lieu of a defendant being brought back into Court.
That being the case, the Court FINDS that in [Pettis's] cases that his failure to report to jail was because of a new arrest. While one might say that that was not his fault, this Court would note that [Pettis] is on probation in three cases in Calloway County, one case in Marshall County, and obtained new charges in Ballard County which related to attempting to obtain sexual favors in a situation in which [Pettis] is already a registered sex offender. That being the case, it is clear that [Pettis] is not appropriate for the application of graduated sanctions, based upon this new charge, regardless of the Court's Order of Probation.
In that same order, the circuit court held Pettis in contempt for failing to report to jail as required by his Commitment Order and, as a contempt sanction, ordered Pettis to immediately serve his 90-day alternative sentence. The circuit court withheld ruling on the probation-revocation motion until Pettis completed his sentence, at which time the court would determine whether to revoke Pettis's probation or impose a lesser sanction.
Pettis was released from jail on December 15, 2013. Two months later, on February 17, 2014, his probation officer filed a second notice of revocation hearing and a violation of supervision report. The notice alleged multiple new violations, including: a new misdemeanor arrest (three counts of theft by deception); failure to report; failure to cooperate with his probation officer; failure to report changes in his home situation; failure to pay fines and court costs; failure to pay supervision fees; and failure to pay drug testing fees.
A revocation hearing was held on March 14, 2014. Pettis's probation officer, Timothy Matt, testified that he learned in mid-February that Pettis may have been living at a hotel instead of his approved address and may have been planning to move to Ohio County. On February 11, 2014, Officer Matt directed Pettis, through another probation officer, to contact him by telephone by 8:00 a.m. on February 12, 2014. Pettis failed to comply. Instead, Pettis called Officer Matt on February 13, 2014; Officer Matt instructed Pettis to report to him in person in Paducah. Pettis, displeased about having to drive to Paducah, called the Murray probation and parole office, and asked why he had to report to Officer Matt in Paducah. The Murray office directed Pettis to report as instructed. Pettis promptly complied, and was swiftly arrested on an outstanding bench warrant.
The bench warrant was requested by Officer Matt and issued by the court on February 13, 2014 due to Pettis's alleged probation violations.
Officer Matt viewed Pettis's call to the Murray office as a failure to cooperate with his reasonable demands and as a questioning of his authority. Officer Matt also testified that he later learned Pettis's wife had signed a lease on a residence in Barren County; the residence was not an appropriate placement for Pettis due to his status as a registered sex offender. Pettis had not received prior permission to move his residence. Officer Matt further testified Pettis had not paid the ordered fines, court costs, supervisions fees, and drug testing fees, and had made no payment toward his child-support arrearage since May 2012.
Pettis strongly disagreed with Officer Matt's version of events. Pettis testified he was never informed he needed to call Officer Matt. Instead, on February 13, 2014, he called the Murray office to get Officer Matt's name and telephone number; Officer Matt had only recently been assigned as Pettis' probation officer. Pettis called Officer Matt to request a travel permit for a possible move to Barren County (Glasgow). Officer Matt informed Pettis he had to come to the Paducah office in person to obtain a travel permit. Pettis, believing he already had permission from the circuit court to seek relocation, called a probation officer in the Murray office and requested that that officer call Officer Matt and inform Officer Matt of the court's prior permission.
Pettis also testified he had not changed his home situation. When the electricity was cut off at his registered address, his family moved to a nearby hotel; however, Pettis remained at his registered address to ensure compliance with his residential requirements. Pettis's wife confirmed that on February 13th, she and Pettis intended to look for jobs and a residence in Glasgow; however, she signed the lease in Glasgow after Pettis's arrest and that he took no part in that decision. Finally, Pettis testified he could not secure employment in Calloway County and therefore lacked the means to pay the ordered fines, court costs, and other fees.
At the conclusion of the hearing, the circuit court requested time to ponder the situation; the judge made no oral findings on the record. On March 24, 2014, by identical orders entered in all three cases - 11-CR-194, 12-CR-142, and13-CR-87 - the circuit court revoked Pettis's probation. The court found Pettis violated his probation due to his failure to: (1) report to his probation officer; (2) cooperate with his probation officer; (3) report a change in home situation to probation officer; (4) to pay supervision fees as directed; and (5) pay for drug testing as directed. The order also included this statement: "The Court further FINDS pursuant to KRS 439.3106 that Defendant's failure to comply with the conditions of supervision constitutes a significant risk to the community at large which cannot be appropriately managed in the community." From these orders, Pettis appealed.
Kentucky Revised Statute --------
Whether to revoke probation is a matter largely left to the discretion of the trial court. See KRS 533.020(1). We will not disturb a revocation order absent an abuse of that discretion. Commonwealth v. Lopez, 292 S.W.3d 878, 881 (Ky. 2009).
Pettis presents three arguments for our consideration. He claims the circuit court abused its discretion: (1) in finding Pettis violated a condition of probation; (2) by failing to articulate its findings as it relates to the statutory criteria of KRS 439.3106; and (3) by failing to consider graduated sanctions prior to revocation.
For many decades, the long-standing rule in Kentucky was that a trial court could revoke probation at any time prior to the expiration or termination of the period of probation if there was evidence that the probationer violated at least one condition of probation. Lucas v. Commonwealth, 258 S.W.3d 806, 807-08 (Ky. App. 2008); KRS 533.020(1). All that changed in 2011 when the Kentucky legislature enacted groundbreaking legislation - the Public Safety and Offender Accountability Act, commonly known as House Bill 463 - with an eye toward sentencing reform. That package, in addition to adjusting our penal sentencing provisions, made substantial changes to our probation revocation laws by creating several new statutes, including KRS 439.3106. That statute provides that 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; orKRS 439.3106.
(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.
Now, post HB 463, to revoke probation, the trial court must find: (1) that the probationer violated a condition of probation; (2) that the violation constitutes a significant risk to prior victims or to the community at large; and (3) that the probationer cannot be appropriately managed in the community. KRS 439.3106; Commonwealth v. Andrews, 448 S.W.3d 773, 778-79 (Ky. 2014).
Regarding the first prong, the standard in Kentucky has not changed. The Commonwealth must prove, by a preponderance of the evidence, that the probationer committed "at least one probation violation." Lucas v. Commonwealth, 258 S.W.3d 806, 807-08 (Ky. App. 2008); Commonwealth v. Lopez, 292 S.W.3d 878, 881 (Ky. 2009). Pettis argues the Commonwealth did not satisfy its burden in this case; we find otherwise.
Evidence was adduced, primarily through Officer Matt, that Pettis: failed to contact him as directed; questioned the officer's authority; modified his home situation without prior permission; and failed to pay the ordered supervision and drug-testing fees. We know that Pettis strongly contested much of Officer Matt's testimony. Acting as the fact finder, the court was well within its authority to believe the facts as presented by Officer Matt and to find Pettis's testimony less credible. Smith v. Commonwealth, 339 S.W.3d 485, 488 (Ky. App. 2010). It is not within the power of this Court to interfere with the circuit court fact-finding authority. See id. Because there is evidence in the record to support at least one probation violation, the circuit court's decision in this regard does not amount to an abuse of discretion.
Pettis's next argument focuses on the last two elements needed to revoke probation: whether his failure to comply with the conditions of probation constitutes a significant risk to the community at large, and whether Pettis cannot be appropriately managed in the community. KRS 439.3106. Pettis argues the circuit court's conclusory findings indicate it failed to fully consider the statute. We agree.
In Andrews, supra, the Kentucky Supreme Court settled the law that KRS 439.3106 applies to a trial court. Before revoking probation, the trial court must consider both statutory factors. Andrews, 448 S.W.3d at 780. "By requiring trial courts to determine that a probationer is a danger to prior victims or the community at large and that he/she cannot be appropriately managed in the community before revoking probation, the legislature furthers the objectives of the graduated sanctions schema to ensure that probationers are not being incarcerated for minor probation violations." Id. at 779.
In its March 24, 2014 orders, the circuit court parroted the statutory language. It found Pettis's probation "constitutes a significant risk to the community at large" and Pettis "cannot be appropriately managed in the community." The order is silent, however, on the factual basis underlying the circuit court's decision. To sustain this approach to KRS 439.3106(1) would violate the whole purpose and spirit of the statute. "If the penal reforms brought about by HB 463 are to mean anything, perfunctorily reciting the statutory language in KRS 439.3106 is not enough." Helms v. Commonwealth, 475 S.W.3d 637, 645 (Ky. App. 2015). The legislature did not intend for trial courts to issue bare recitations without a supporting factual basis for the trial court's decision.
We clarify our decision. Trial courts need not engage in detailed fact finding. A simple statement of the factual basis related to the statutory criteria of KRS 439.3106(1) is enough. This not only apprises the probationer of the justifications for revocation, but also facilitates meaningful appellate review. The reviewing court must know what, among the record as a whole, convinced the trial court that the statutory requirements had been met.
In Andrews, the Supreme Court found the trial court's oral assertions captured on the record that Andrews, having been convicted of a serious drug offense and having two previous felonies on his record, and who denied having a drug problem, and refused treatment at sentencing, posed a risk to the community and was not manageable in the community. 448 S.W.3d at 780-81. Similarly, in McClure v. Commonwealth, 457 S.W.3d 728 (Ky. App. 2015), we found that the combination of the trial court's written order finding "that McClure was a 'danger to [the] public' based on his attempt to alter the results of a drug screen," and its oral statements at the conclusion of the revocation hearing related to the gravity of McClure's actions and the danger posed by his obvious addiction were sufficient to satisfy the "significant risk to the community" prong of KRS 439.3106(1). McClure, 457 S.W.3d at 733.
In the case before us, the circuit court's order does not mention the factual premise for its findings under KRS 439.3106(1). It merely recites the language of the statute. While there is evidence in the record that might support the circuit court's decision, such as Pettis's past criminal record and pattern of reoffending while on probation, there is other evidence which cuts against the circuit court's findings, such as the trivial nature of Pettis's probation violations. Ultimately, we think it best to allow the circuit court to sort the evidence, and to identify the factual basis for its decision that Pettis poses a risk to and cannot be managed in the community. KRS 439.3106(1). On this issue, we reverse and remand for additional written factual findings.
Before concluding, we pause to address an issue likely to resurface on remand. Pettis contends the circuit court abused its discretion when it failed to consider graduated sanctions prior to revoking probation. This Court recently addressed this issue in McClure, supra. There, we said:
KRS 439.3106 permits, but does not require, a trial court to employ lesser sanctions; and, as even McClure concedes on appeal, incarceration remains a possibility.
The elective language of the statute as a whole creates an alternative employed and imposed at the discretion of the trial court—discretion the Supreme Court insisted the trial court retained in light of the new statute. Andrews at 780. Nothing in the statute or in the Supreme Court's interpretation of it requires the trial court to impose lesser sanctions prior to revoking probation. Hence, the statute did not require the present trial court to impose a lesser sanction on McClure.McClure, 457 S.W.3d at 732.
Significantly, in this case, the circuit court did consider graduated sanctions; its reasoning is clearly articulated in its October 17, 2013 order. The circuit court simply found graduated sanctions inappropriate because of Pettis's criminal history and recent criminal conduct. The circuit court's exercise of discretion was neither unreasonable nor arbitrary.
For the foregoing reasons, we reverse the Calloway Circuit Court's March 24, 2014 orders and remand for written factual findings concerning the statutory criteria of KRS 439.3106(1).
J. LAMBERT, JUDGE, DISSENTS AND DOES NOT FILE SEPARATE OPINION.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY. BRIEFS FOR APPELLANT: Robert C. Yang
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Nate T. Kolb
Assistant Attorney General
Frankfort, Kentucky