Opinion
NO. 2015-CA-001404-MR
01-13-2017
BOBBY J. WILLIAMS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Shannon Dupree Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FULTON CIRCUIT COURT
HONORABLE TIMOTHY A. LANGFORD, JUDGE
ACTION NO. 10-CR-00091 OPINION
REVERSING AND REMANDING
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BEFORE: KRAMER, CHIEF JUDGE; COMBS AND JONES, JUDGES. KRAMER, CHIEF JUDGE: Bobby J. Williams appeals from a Fulton Circuit Court order revoking his probation and imposing sentence. He argues that the order must be reversed because the trial court failed to consider the criteria of Kentucky Revised Statute (KRS) 439.3106(1) prior to revoking his probation.
On October 28, 2010, Williams entered a plea of guilty in Fulton Circuit Court to one count of theft by unlawful taking (over $500) and one count of complicity to theft by unlawful taking (over $500). On November 10, 2010, he was sentenced to ten-years' imprisonment probated for five years.
On December 3, 2010, Williams was arrested in Tennessee on felony burglary and theft charges. After learning of the charges, the Fulton Circuit Court issued a warrant for his arrest on the grounds that he had violated his probation. The Circuit Court of Obion, Tennessee, sent a letter informing the Fulton Circuit Court that Williams had been accepted into the Obion County drug court program and would be allowed to remain in that program if the Kentucky court did not revoke his probation. In response to that letter, the Fulton Circuit Court recalled its warrant. An agreement was created whereby Williams's sentences in Kentucky and Tennessee would continue to be probated and he would attend drug court in Tennessee and be supervised by Tennessee probation officers.
In December 2011, Williams was terminated from the Tennessee drug court program and his Tennessee probation was revoked. He served out his sentence there and was released on June 17, 2014. Williams did not, however, report to probation officers in Kentucky, although evidence was presented at the revocation hearing that Williams was not given notice that he was expected to report back to Kentucky; nor were the Kentucky probation officers notified that Williams had served out his sentence and been released.
Williams was subsequently arrested in Memphis, Tennessee, in June 2015. He was also charged in Fulton Circuit Court with criminal attempt to commit murder, first-degree wanton endangerment, first-degree assault, first-degree burglary, and being a persistent felony offender in the first degree. Allegedly, Williams had forced his way into a local motel room, pointed a shotgun at the female occupant, and pulled the trigger. When the shotgun failed to fire, Williams allegedly struck the victim in the face with the gun, causing serious injuries.
The trial court held a revocation hearing on July 15, 2015, at which Williams's probation officer testified. Williams did not present any witnesses or evidence at the hearing. He requested the court to delay issuing an order until after his new felony charges had been resolved. The trial court stated that the only reason it did not revoke his probation in February 2011 was that the Tennessee court had chosen to give Williams a chance at drug court.
The trial court's final judgment and revocation of probation found that he had violated the terms of his probation by absconding supervision since June 2014; for having pending new felonies; and for having committed felonies (burglary and felony theft) in Tennessee. As further grounds, the trial court cited Williams's failure to pay court costs as ordered. The trial court imposed the sentence of ten-years' imprisonment for the convictions of theft by unlawful taking and complicity to theft by unlawful taking. This appeal by Williams followed.
Before revoking probation a trial court must consider KRS 439.3106, which provides that
[s]upervised 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 held that KRS 439.3106(1) "requires trial courts to consider 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." Commonwealth v. Andrews, 448 S.W.3d 773, 780 (Ky. 2014). By requiring the trial court to make such a determination, "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 (citation omitted). The Court also cautioned, however, that the statute "does not upend the trial court's discretion in matters of probation revocation, provided that discretion is exercised consistent with statutory criteria." Id. at 780.
Our review of the record indicates that the trial court revoked Williams's probation on the grounds that he had violated the conditions of his probation, but did not expressly address the two factors of KRS 439.3106. Williams did not contemporaneously object to the trial court's analysis, however, and consequently he argues that the trial court's failure to make the statutory findings constitutes palpable error. Kentucky Rules of Criminal Procedure (RCr) 10.26 provides:
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 resulted from the error.For an error to be palpable, it "must be so grave in nature that if it were uncorrected, it would seriously affect the fairness of the proceedings." Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006) (citation omitted). Manifest injustice results from a "defect in the proceeding [that is] shocking or jurisprudentially intolerable." Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006).
The Commonwealth argues that Williams's repeated violations of the terms of his probation and the violent nature of his alleged offenses under the new charges fully support a finding that he poses a significant risk to the community and cannot be appropriately managed in the community. Therefore, the Commonwealth contends, the absence of findings does not result in manifest injustice.
Although there may indeed be sufficient evidence to support the revocation of probation in light of the KRS 439.3106 factors, such a determination is solely within the purview of the trial court's discretion. "[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." McClure v. Commonwealth, 457 S.W.3d 728, 732 (Ky. App. 2015). Consequently, the case must be remanded for further proceedings in order for the trial court to make express findings under both elements of KRS 439.3106.
Williams further argues that the trial court failed to make adequate findings regarding his failure to pay court costs, specifically, that the trial court was required to "(1) consider whether [Williams] 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." Commonwealth v. Marshall, 345 S.W.3d 822, 824 (Ky. 2011). Although the circuit court mentioned Williams's failure to pay court costs as a basis for revoking his probation during the probation revocation hearing, the court did not include it as a basis for revocation in its written order revoking probation. Kentucky courts only speak through their written orders and judgments. See Cumberland Valley Contractors, Inc. v. Bell Cty. Coal Corp., 238 S.W.3d 644, 648 (Ky. 2007). Therefore, Williams's failure to pay court costs was not a basis for the revocation of his probation, and this claim is moot.
For the foregoing reasons, the judgment revoking Williams's probation is reversed. The matter is remanded in order for the trial court to consider whether Williams's failure to abide by the terms of his probation constitutes a significant risk to prior victims or the community and whether Williams cannot be appropriately managed in the community.
ALL CONCUR. BRIEF FOR APPELLANT: Shannon Dupree
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky