Opinion
NO. 2017-CA-000657-MR
02-16-2018
TROY SLOAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Susan Jackson Balliet Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE KAREN WILSON, JUDGE
ACTION NO. 15-CR-00310 OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: COMBS, JONES AND NICKELL, JUDGES. COMBS, JUDGE: Appellant, Troy Sloan, appeals from an Order of the Henderson Circuit Court revoking his probation. After our review, we vacate and remand.
Sloan pled guilty to one count of Second Degree Robbery, a Class C felony. On February 26, 2016, the trial court entered Judgment sentencing Sloan to five-years' imprisonment, probated for five years, and ordering him to pay restitution. The February 26, 2016, Order of Probation/ Conditional Discharge reflects that probation was granted on the condition that Sloan not commit another offense during the period for which the sentence would remain subject to revocation. It also provided as follows:
The Court having found that the victim of Defendant's crime has suffered monetary damage or actual medical expenses as a result of Defendant's crime, pursuant to KRS[] 533.030(3)[], the Court FURTHER ORDERS that the Defendant shall pay RESTITUTION to Office of Comm Atty in the amount of $300.00 for damages or loss caused by the Defendant . . . .(Emphasis original).
Kentucky Revised Statutes.
KRS 533.030(3) provides in relevant part that:
When imposing a sentence of probation or conditional discharge in a case where a victim of a crime has suffered monetary damage as a result of the crime due to his property having been converted, stolen, or unlawfully obtained, or its value substantially decreased as a result of the crime, or where the victim suffered actual medical expenses . . . the court shall order the defendant to make restitution in addition to any other penalty provided for the commission of the offense. . . . (Emphasis added.)
On February 28, 2017, Mike Scott, a Probation and Parole Officer for Henderson County Circuit Court, filed an Affidavit to revoke Sloan's probation. In his affidavit, Scott alleged that Sloan had violated a condition of his probation by receiving a new felony conviction for Burglary Third Degree. Scott also recited that on August 8, 2016, Sloan was sentenced to two years and was ordered to pay $100.00 in restitution in case no. 16-CR-194.
On March 13, 2017, the court conducted a revocation hearing. On March 15, 2017, the Court entered an order pertaining to Scott's motion to revoke probation, finding as follows:
X The Court heard proof regarding the allegations contained in the affidavit. Having made the foregoing findings, the Court further FINDS that the Defendant:(Emphasis original). No other findings were made. The court ordered that Sloan's probation be revoked and that he be re-committed to the Department of Corrections to serve the balance of his original sentence.
. . .
X Violated his/her Order of Probation by:
. . .
X Committing new offense.
On March 23, 2017, Sloan filed a Notice of Appeal from the Order revoking his probation. On appeal, Sloan first contends that the trial court "failed to make findings regarding the elements required to revoke probation and failed to consider graduated sanctions; KRS 439.3106 and due process were violated." Sloan acknowledges that the issue was not preserved and seeks review for palpable error under 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.
In Commonwealth v. Andrews, 448 S.W.3d 773, 776 (Ky. 2014), our Supreme Court carefully analyzed the ramifications of KRS 439.3106:
In 2011, the Kentucky General Assembly enacted the Public Safety and Offender Accountability Act, commonly referred to as House Bill 463 ("HB 463"). 2011 Ky. Acts 4. With the enactment of HB 463, the legislature adopted a sentencing policy intended to "maintain public safety and hold offenders accountable while reducing recidivism and criminal behavior and improving outcomes for those offenders who are sentenced." KRS 532.007(1). To that end, HB 463 created several new statutes, including various statutes governing probation and conditional discharge. Among the newly enacted probation and parole statutes was KRS 439.3106 . . . .KRS 439.3106 sets forth the criteria for revocation of probation and 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; 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) mandates that the trial court 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." Andrews at 780.
This Court later discussed the Andrews holding in McClure v. Commonwealth, 457 S.W.3d 728, 732 (Ky. App. 2015), as follows:
[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.However, this Court concluded that the trial court in McClure had abused its discretion by failing to make "an essential statutory finding [under KRS 439.3106(1)], either in writing or from the bench." Id. at 734. Simply reciting 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 [sic] been met." Helms v. Commonwealth, 475 S.W.3d 637, 645 (Ky. App. 2015).
Within this "schema," as the Supreme Court called it [in Andrews], KRS 439.3106 permits, but does not require, a trial court to employ lesser sanctions; and... 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.
Other panels of this Court have held that the trial court's failure to make the requisite findings under KRS 439.3106(1) and Andrews does indeed constitute palpable error. Williams v. Commonwealth, 2015-CA-001404-MR, 2017 WL 129118 (Ky. App. Jan. 13, 2017); Lainhart v. Commonwealth, 2016-CA-001427-MR, 2017 WL 5664750 (Ky. App. Nov. 9, 2017); Burnett v. Commonwealth, ___ S.W.3d ___, 2016-CA-001428-MR, 2017 WL 4847691 (Ky. App. Oct. 27, 2017).
Accordingly, we must vacate the trial court's order revoking Sloan's probation and remand that issue for reconsideration. On remand, the trial court shall make express findings as required by KRS 439.3106(1) and by Andrews and then determine in its discretion whether revocation or a lesser sanction is appropriate.
We now address the second issue that Sloan has raised regarding restitution. He contends that:
under KRS 532.032(1), restitution must be paid to "a named victim," [that] the Commonwealth's Attorney was not a named victim. [and that it] can only be presumed that the $300 was intended to reimburse the
Commonwealth for the routine cost of prosecuting Mr. Sloan.
Although the issue is admittedly unpreserved, we note that the Form AOC-JV1/Juvenile Petition reflects that items stolen from the named victim included a cell phone valued at $300.00. Furthermore, KRS 532.032 provides in relevant part that:
(1) Restitution to a named victim, if there is a named victim, shall be ordered in a manner consistent, insofar as possible, with the provisions of this section and KRS 439.563, 532.033, 533.020, and 533.030 in addition to any other part of the penalty for any offense under this chapter. The provisions of this section shall not be subject to suspension or nonimposition.(Emphasis added). The restitution ordered is wholly appropriate and is properly payable to the Commonwealth Attorney on behalf of the victim.
. . .
(3) If probation, shock probation, conditional discharge, or other alternative sentence is granted, restitution shall be a condition of the sentence.
. . .
(5) Restitution payments ordered under this section shall be paid by the defendant to the clerk or a court-authorized program run by the county attorney or the Commonwealth's attorney of the county.
We hereby vacate the March 13, 2017, Order of Henderson Circuit Court revoking Sloan's probation. We remand for further proceedings as set forth in this opinion.
ALL CONCUR. BRIEF FOR APPELLANT: Susan Jackson Balliet
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky