BRIEF FOR APPELLANT: Steven J. Buck Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Emily Bedelle Lucas Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HICKMAN CIRCUIT COURT
HONORABLE TIMOTHY A. LANGFORD, JUDGE
ACTION NO. 14-CR-00004 OPINION
VACATING AND REMANDING
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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND LAMBERT, JUDGES. CLAYTON, CHIEF JUDGE: Mickey Beasley appeals from a Hickman Circuit Court order revoking his probation. He argues the trial court failed to make the essential finding under Kentucky Revised Statutes (KRS) 439.3106(1) that his failure to abide by the conditions of his probation posed a significant risk to prior victims or members of the community at large. We agree and consequently vacate and remand for additional proceedings.
On June 19, 2014, Beasley was sentenced to serve five years, probated for five years, after he entered a plea of guilty to theft by failure to make required disposition of property. The final sentencing order listed the terms and conditions of his probation, which included reporting to his probation officer, promptly notifying the probation officer of any change in address, and performing community service work. Beasley was also ordered to pay restitution in the amount of $4,400.
During the next three years, Beasley's probation officers filed three violation of supervision reports. The first report, filed on July 27, 2015, was followed by a notice of revocation hearing alleging Beasley had violated the conditions of his probation by absconding probation supervision, failing to report to his probation officer, failing to report a change in home address, failing to perform community service, and failing to pay supervision fees, drug testing fees, restitution, court costs and jail fees.
On September 17, 2015, the trial court entered an order reinstating Beasley's probation and directed him to complete the 300 hours of community service required by the original order of probation.
On January 29, 2016, the probation officer filed the second violation of supervision report stating Beasley had been arrested following a traffic stop in McCracken County. The officer then filed a supplemental report informing the court Beasley had entered a plea of guilty in McCracken Circuit Court to the charges arising from that arrest for theft of a motor vehicle registration plate/renewal decal, failure of owner to maintain required insurance/security, improper display of registration plates and no/expired registration plates. He received a sentence of three years and was placed on parole on July 1, 2016. The report stated the officer would leave any action regarding the new convictions to the discretion of the trial court.
On August 25, 2016, the trial court entered an order reinstating probation conditioned on Beasley acknowledging he received graduated sanctions, completing 300 hours of community work service at the rate of five hours minimum per week and paying $450 towards restitution by October 4, 2016.
The third violation of supervision report was filed by a new probation officer, Shaun Sullivant, on December 7, 2017. It stated that on October 19, 2017, Beasley was given a report date of November 8, 2017, but failed to report on that day. On November 16, 2017, when Beasley was informed that a warrant had been issued for his failure to appear, he assured the officer he would take care of it immediately and report the next day. He failed to do so. When the officer called Beasley's last provided phone number to determine why he had not reported, a voice recording stated that the wireless subscriber had a voice mailbox, but it had not been set up yet. On November 30, 2017, the officers visited Beasley's last known address. The residents at the address told the officers there was no Mickey Beasley living there. The officers were directed to an automobile garage at the rear of the property. The employees at the garage did know Beasley and told the officers he lived further down the highway in an old RV. The officers went to the RV, but no one answered the door. A check of local hospitals, jails, homeless shelters and Justice Xchange yielded no information about Beasley's whereabouts. The report stated that Beasley was high risk and was required to report to Probation and Parole twice per month, yet had not done so since October 19, 2017.
The officer claimed Beasley had violated the terms of his probation by absconding, failing to report to his probation officer, failing to report a change in home address, and providing false information to his officer. The report requested Beasley's probation be revoked because he had clearly demonstrated he was not amenable to community supervision.
On January 4, 2018, officer Eric Meshew filed a notice of revocation hearing that reiterated Sullivant's claims. He added that Beasley failed to perform his community service work and had not made a restitution payment since October 2017.
On January 4, 2018, the trial court held a revocation hearing at which Officer Meshew testified on Officer Sullivant's behalf and read the contents of the previous reports. Beasley also testified on his own behalf, stating he had performed community service although he was unable to produce any documentation to support this claim. He also explained that he had undergone cataract surgery and was ordered by his doctor not to lift anything, which had interfered with his community service. Evidence was also provided that Beasley had paid $3,790 of his approximate $4,000 restitution bill.
The trial court noted Beasley's payment of restitution with approval, but after reviewing Beasley's history of receiving alternative sanctions for failing to report, absconding and for being arrested and convicted of a new felony, concluded that Beasley had shown he could not be appropriately managed in the community.
The trial court's written order found that Beasley had violated the terms of his probation by absconding, failing to report, failing to report change of address, providing false information and providing no documentation that he had completed any community service work. A preprinted portion of the order stated that Beasley's violations "constitute a significant risk to the community at large" but contained no written findings to support this conclusion.
This appeal by Beasley 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 the statute "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.
The trial court's findings need not be written; the Kentucky Supreme Court has held that oral findings may satisfy due process requirements "where . . . we possess a video record that is sufficiently complete to allow the parties and us to determine the evidence relied on and the reasons for revoking probation." Commonwealth v. Alleman, 306 S.W.3d 484, 487 (Ky. 2010) (internal quotation marks and citations omitted).
On appeal, Beasley does not contest the trial court's conclusion that Beasley could not be managed in the community based on its finding that he had previously received graduated sanctions and could not be supervised if he could not be found. He argues that the trial court erred in not making express findings to justify its conclusion that Beasley poses a significant risk to the community at large. We agree.
The Commonwealth argues that Beasley's commission and conviction of a new felony in McCracken County while on probation is sufficient evidence to justify revocation. It points out that when a probationer is convicted of a new felony, probation officers are required to submit the matter to the trial court without the possibility of imposing graduated sanctions. 501 Kentucky Administrative Regulations (KAR) 6:250 § (2)(5)(b); Andrews, 448 S.W.3d at 778. Although the probation officer is foreclosed from considering graduated sanctions in this situation, the trial court always retains its discretion to make the ultimate determination regarding revocation. That discretion must, however, be "exercised consistent with statutory criteria." Andrews, 448 S.W.3d at 780.
The Commonwealth also requests us to take judicial notice of the fact that Beasley's probation in the McCracken County case was revoked on January 23, 2018, shortly after the entry of the revocation order in this case. Beasley has apparently not appealed from McCracken County revocation order, which the Commonwealth argues shows that he does not dispute the McCracken Circuit Court's finding he was a serious risk to the community. We are not at liberty, however, to speculate why Beasley did not appeal from that revocation order or to infer that the McCracken Circuit Court made a finding regarding Beasley's risk potential that is binding on the Hickman Circuit Court.
Because the trial court did not made findings regarding whether Beasley poses a significant risk to prior victims or the community at large, as required under KRS 439.3106(1), its order revoking probation is vacated and the case is remanded for the trial court to make the appropriate mandatory findings.
ALL CONCUR. BRIEF FOR APPELLANT: Steven J. Buck
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Emily Bedelle Lucas
Assistant Attorney General