Opinion
NO. 2014-CA-001336-MR
04-22-2016
BYRON WILLIAMSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Joshua D. Farley Gregory D. Simms Louisville, Kentucky ORAL ARGUMENT FOR APPELLANT: Joshua D. Farley Louisville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Nate T. Kolb Assistant Attorney General Frankfort, Kentucky ORAL ARGUMENT FOR APPELLEE: Christian Miller Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE KELLY MARK EASTON, JUDGE
ACTION NO. 13-CR-00137 OPINION
VACATING AND REMANDING BEFORE: CLAYTON, JONES, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Byron Williamson brings this appeal from a July 18, 2014, judgment of the Hardin Circuit Court sentencing Williamson to ten-years' imprisonment. For the reasons stated, we vacate and remand.
On March 1, 2013, Williamson was indicted by the Hardin County Grand Jury upon the offenses of trafficking in marijuana (over eight ounces but less than five pounds) and theft by deception under $10,000. Williamson entered into a plea agreement with the Commonwealth. Under the plea agreement, Williamson pleaded guilty to the indicted offenses and agreed to a ten-year term of imprisonment, with the stipulation that Williamson would be placed on pretrial diversion for five years. By order entered September 9, 2013, the circuit court granted Williamson pretrial diversion and noted that if Williamson violated the terms of the pretrial diversion the court could sentence him to ten-years' imprisonment.
On March 19, 2014, Williamson was indicted by the Nelson County Grand Jury upon two counts of third-degree assault, two counts of resisting arrest, and menacing. Also, in May 2014, Williamson admitted to the use of methamphetamine, and in June 2014, he tested positive for methamphetamine.
A revocation hearing was scheduled on June 17, 2014, for the court to determine whether Williamson violated the terms of his pretrial diversion. On June 17, 2014, Williamson stipulated to use of methamphetamine and agreed to forgo the hearing. Based upon this stipulation and "new felony arrest," the circuit court voided Williamsons' pretrial diversion by order entered June 19, 2014.
A final sentencing hearing was subsequently held on July 15, 2014, and Williamson requested to be placed on probation with time served or, in the alternative, to serve six-months' imprisonment. At the hearing, the trial court reviewed the pending felony charges against Williamson in Nelson County as well as his stipulation to the use of methamphetamine, all of which were in violation of the terms of his diversion. By judgment entered July 18, 2014, the circuit court sentenced Williamson to five years upon the offense of trafficking in marijuana and five-years' imprisonment upon the offense of theft by deception. The circuit court ordered the sentences to run consecutively for a total of ten-years' imprisonment. This appeal follows.
Williamson contends that the circuit court erred by voiding his pretrial diversion and sentencing him to ten-years' imprisonment. He argues that the circuit court failed to determine whether he was a danger to prior victims or the community at large and whether he could be managed in the community before revoking his pretrial diversion as mandated by Kentucky Revised Statutes (KRS) 439.3106. For the following reasons, we agree.
To begin our analysis, we observe that in Kentucky, KRS 439.3106 pertains to supervised individuals through the Department of Corrections and is applicable to both probation and pretrial diversion proceedings. KRS 533.254; KRS 533.256(2); Helms v. Com., ___ S.W.3d ___ (Ky. App. 2015) (discretionary review denied December 10, 2015). Enacted in 2011 as part of HB 463, KRS 439.3106 addresses sanctions that supervised individuals are subject to when violating their probation or diversion terms. The statute reads:
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.
The application and interpretation of the statutory criteria set forth in KRS 439.3106 was recently addressed by the Kentucky Supreme Court in Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014), rendered December 18, 2014. In Andrews, 448 S.W.3d 773, the Supreme Court held that upon considering possible incarceration for violation of probation terms, it was incumbent upon a circuit court to make specific findings of fact, either written or oral, addressing the statutory criteria set forth in KRS 439.3106(1), as to whether a defendant poses a danger to prior victims or to the community at large and whether a defendant can be properly managed in the community prior to revoking probation/pretrial diversion under KRS 439.3106. See also McClure v. Com., 457 S.W.3d 728 (Ky. App. 2015). The Supreme Court held that KRS 439.3106 must be considered by the trial court before probation may be revoked. Id. at 778-79. Accordingly, this mandate would also apply before a diversion sentence may be voided.
As noted, at the hearing to set aside Williamson's diversion sentence on June 17, 2014, the defendant stipulated to a violation and the hearing was effectively waived. Upon a thorough review of the record and video recordings, there is nothing in the record to establish that the circuit court addressed KRS 439.3106 at the June 17, 2014, hearing.
The circuit court's order voiding Williamson's pretrial diversion was entered on June 19, 2014, some six months before the Supreme Court's decision in Andrews, 448 S.W.3d 773. Therefore, the circuit court did not have the benefit of Andrews, 448 S.W.3d 773, as guidance when it revoked Williamson's pretrial diversion. The law was clearly unsettled as to the proper interpretation of KRS 439.3106 at the time Williamson's pretrial diversion was set aside by the circuit court in 2014. As noted, this Court has thoroughly reviewed both the written record and video proceedings in this case. While the circuit court did review the seriousness of Williamson's conduct as to whether he posed a danger to the community at the sentencing hearing, the court did not address at the revocation hearing the statutory factors set out in KRS 439.3106. The fact that Williamson waived this hearing did not relieve the trial court of this duty under Andrews.
Reluctantly, based upon the mandate of Andrews, we must conclude that the circuit court did not make the required statutory findings of fact prior to voiding Williamson's pretrial diversion. See Andrews, 448 S.W.3d 773; McClure, 457 S.W.3d 728. Given this circumstance, this Court has no alternative but to vacate the circuit court's order voiding Williamson's pretrial diversion and remand for the circuit court to reconsider same under the precepts of Andrews, 448 S.W.3d 773.
We view any remaining contentions of error as moot.
For the foregoing reasons, the judgment of the Hardin Circuit Court is vacated and the case is remanded for proceedings consistent with opinion.
ALL CONCUR. BRIEF FOR APPELLANT: Joshua D. Farley
Gregory D. Simms
Louisville, Kentucky ORAL ARGUMENT FOR
APPELLANT: Joshua D. Farley
Louisville, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Nate T. Kolb
Assistant Attorney General
Frankfort, Kentucky ORAL ARGUMENT FOR
APPELLEE: Christian Miller
Assistant Attorney General
Frankfort, Kentucky