Opinion
2023-CA-0781-MR
09-20-2024
RYAN PITTMAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Kathleen K. Schmidt Frankfort, Kentucky BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM LINCOLN CIRCUIT COURT HONORABLE EDDY MONTGOMERY, JUDGE ACTION NO. 22-CR-00170
BRIEF FOR APPELLANT: Kathleen K. Schmidt Frankfort, Kentucky
BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
BEFORE: THOMPSON, CHIEF JUDGE; A. JONES AND LAMBERT, JUDGES.
OPINION
LAMBERT, JUDGE
Ryan Pittman appeals from the Lincoln Circuit Court's decision to revoke his probation. We affirm.
Pursuant to Pittman's guilty plea, the circuit court sentenced him to three years' imprisonment in January 2023 for escape in the second degree. However, the judgment provided that after Pittman "served a balance of at least sixty (60) days in jail, imposition of the remainder of the three (3) year sentence shall be suspended and the defendant placed on supervised probation for a period of five (3) [sic] years." The judgment listed numerous conditions for Pittman's probation, including refraining from using alcohol or drugs unless prescribed by a doctor and refraining from further violations of the law.
Approximately two months later, the Commonwealth sought to revoke Pittman's probation because a probation officer discovered drug paraphernalia in Pittman's vehicle and Pittman signed a written statement admitting to having recently used methamphetamine. At the subsequent revocation hearing, the probation officer testified that he saw Pittman acting erratically inside a grocery store and a search of Pittman's vehicle revealed multiple syringes with residue, as well as residue in a baggie and a straw. The officer testified that Pittman was not given a drug test because he admitted to having used methamphetamine several days before. Pittman testified that the paraphernalia had remained in his vehicle since before he was arrested on the escape charge. Pittman also denied having used methamphetamine, contending that he misunderstood the written admission document he signed.
The trial court disbelieved Pittman, rejecting his claims that he had possessed the paraphernalia for several months and that he had not recently used methamphetamine. The court revoked Pittman's probation. The revocation order states that Pittman is a significant risk to the community at large and he cannot be properly managed in the community. Pittman then filed this appeal.
Kentucky Revised Statute (KRS) 439.3106(1)(a) requires a court to make two findings before revoking a person's probation: 1) the person must be "a significant risk to prior victims . . . or the community at large"; and 2) the person "cannot be appropriately managed in the community[.]" As we have held, "[a] court must make both findings before revoking probation but retains the discretion to choose whether to revoke probation or impose lesser sanctions." Kendrick v. Commonwealth, 664 S.W.3d 731, 734 (Ky. App. 2023). We review a decision to revoke probation "under the deferential abuse of discretion standard." Id.
Here, it is undisputed that the revocation order contains both findings. Nonetheless, Pittman argues the trial court abused its discretion in revoking his probation for, as we construe his brief, two reasons. First, he contends the trial court did not explain the rationale for its findings. Second, he contends the trial court should have imposed lesser sanctions. We reject both arguments.
We held in Helms v. Commonwealth, 475 S.W.3d 637, 645 (Ky. App. 2015), that "perfunctorily reciting the statutory language in KRS 439.3106 is not enough." That unfortunately "imprecise" statement has been "often misconstrued[,]" Kendrick, 664 S.W.3d at 735, including by Pittman. As we explained in Kendrick, we did not hold in Helms that a trial court must provide detailed explanations for why the two criteria in KRS 439.3106 were satisfied:
a court is only required to make the statutory findings, not explain them. . . . Perhaps our language about perfunctory recitations was imprecise, but Helms does not afford Kendrick relief.
In Helms, we explained that there was a complete lack of evidence that Helms was a danger to a prior victim or to the community and he cannot be appropriately managed in the community . . . . We stressed the insufficient evidence, notwithstanding the trial court's perfunctory regurgitation of the findings required by KRS 439.3106:
If the penal reforms brought about by HB [House Bill] 463 are to mean anything, perfunctorily reciting the statutory language in KRS 439.3106 is not enough. 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.
Helms, 475 S.W.3d at 645.
In other words, we cannot affirm the revocation of probation simply because the revocation order contains the requisite statutory findings. A revocation unsupported by evidence of record would not be within the range of permissible decisions allowed by a correct application of the facts to the law. Instead, we may affirm a decision to revoke probation only if: a) the court made the required findings, and b) those findings are supported by the record. We emphatically reiterate that Helms does not mean that a court must provide detailed explanations for the findings required by KRS 439.3106.Kendrick, 664 S.W.3d at 735 (some paragraph breaks, quotation marks, and citations omitted).
Here, there was unquestionably evidence sufficient to support revocation. It is beyond dispute that Pittman possessed drug paraphernalia, regardless of the date he acquired those items. Possession of drug paraphernalia is a crime, and thus violative of the terms of Pittman's probation. See KRS 218A.500. Pittman even admitted he knew possession of drug paraphernalia was a probation violation. Despite Pittman's argument to the contrary, revocation was permissible even though he, apparently, was not convicted of criminal offenses stemming from his possession of drug paraphernalia or methamphetamine. Barker v. Commonwealth, 379 S.W.3d 116, 123 (Ky. 2012).
The trial court also found Pittman's admission that he had recently used methamphetamine more credible than his attempted recantation. The trial court has the sole ability to assess credibility. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). Accordingly, we cannot disturb the trial court's rejection of Pittman's attempt to retract his confession (nor may we disturb the court's rejection of Pittman's claim that the syringes had been in his vehicle for months). Using an unprescribed drug was violative of the terms of Pittman's probation.
We also reject Pittman's argument, tellingly unsupported by citation to relevant authority, that the Commonwealth was required to submit the residue to a formal laboratory analysis. Pittman signed a written statement admitting to using methamphetamine and a field test of the residue found in his vehicle was positive for methamphetamine. Under those facts, the Commonwealth was not required to further test the residue to show that Pittman violated the terms of his probation.
There was evidence sufficient to support the statutory factors. As we have held, "a defendant who will not cooperate with the conditions of her supervision may indeed constitute a significant risk to the community at large and be unmanageable in the community." Compise v. Commonwealth, 597 S.W.3d 175, 182 (Ky. App. 2020). In fact, we have affirmed a trial court's decision to revoke probation under similar circumstances. See, e.g., Kendrick, 664 S.W.3d at 735 (revocation for, among other concerns, continuing to use illegal drugs); New v. Commonwealth, 598 S.W.3d 88, 91 (Ky. App. 2019) (revocation for using drugs and submitting false paperwork). There is evidence to support the circuit court's findings that Pittman engaged in conduct sufficient to satisfy KRS 439.3106 based on his possessing drug paraphernalia, admitting to having used methamphetamine recently, and insisting he did not need additional substance abuse treatment - all within a few months after being placed on probation.
The trial court made the statutorily required findings. Those findings are supported by substantial evidence. Pittman's argument to the contrary notwithstanding, the trial court "owed [him] no further explanation." McClure v. Commonwealth, 457 S.W.3d 728, 733 (Ky. App. 2015). In any event, the trial court orally explained its decision following the presentation of evidence. For example, the court opined that being convicted of escape showed it was difficult to manage Pittman in the community. The court also remarked that Pittman's refusal to admit he was addicted and needed additional treatment made it difficult to manage him in the community. The court also stated that it believed Pittman was a threat to reoffend and thus presented a danger to the community.
Finally, we reject Pittman's argument that the trial court should have imposed a lesser sanction. "KRS 439.3106 permits, but does not require, a trial court to employ lesser sanctions; and . . . incarceration remains a possibility." Id. at 732. We have rejected similar arguments, and Pittman has not presented a compelling reason for us to reassess those decisions. See, e.g., New, 598 S.W.3d at 90; Kendrick, 664 S.W.3d at 735-36; Hall v. Commonwealth, 566 S.W.3d 578, 581 (Ky. App. 2018).
In sum, the trial court made the statutorily required revocation findings, and those findings are supported by substantial evidence. Accordingly, the court did not abuse its discretion by revoking Pittman's probation.
For the foregoing reasons, the Lincoln Circuit Court is affirmed.
ALL CONCUR.