RENDERED: AUGUST 28, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-001066-MR AND NO. 2019-CA-001081-MR
KATHRYN SWENSON APPELLANT
APPEALS FROM HARDIN CIRCUIT COURT
v. HONORABLE KELLY MARK EASTON, JUDGE
ACTION NOS. 18-CR-00022 AND 18-CR-00244
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, JONES, AND KRAMER, JUDGES.
KRAMER, JUDGE: Pursuant to an order entered July 8, 2019, the Hardin Circuit
Court found Kathryn Swenson in violation of her probation. In lieu of having her
probation consequently revoked, Swenson had requested a graduated sanction
consisting of “up to” twelve months’ incarceration, suspended upon condition that
she complete “a long-term rehab” program for drug addiction. The circuit court
denied Swenson’s request, however, and ordered Swenson to serve the term of her
previously probated sentence, i.e., twenty years’ imprisonment, with eligibility for
parole upon serving twenty percent. Swenson now appeals, arguing her probation
was solely revoked because the circuit court unfairly enforced what she
characterizes as an unwritten “zero tolerance policy” for drug use associated with
her probation. In other words, Swenson’s claim is that her probation was only
revoked because she used methamphetamine on one occasion during her probation.
Having thoroughly considered the record, her arguments lack all merit; hence, we
affirm.
We review probation revocation orders under the abuse of discretion
standard. Commonwealth v. Andrews, 448 S.W.3d 773, 780 (Ky. 2014). We will
reverse only if we find “the trial judge’s decision was arbitrary, unreasonable,
unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993
S.W.2d 941, 945 (Ky. 1999) (citations omitted). We “will not hold a trial court to
have abused its discretion unless its decision cannot be located within the range of
permissible decisions allowed by a correct application of the facts to the law.”
Blankenship v. Commonwealth, 494 S.W.3d 506, 508 (Ky. App. 2015) (citing
Miller v. Eldridge, 146 S.W.3d 909, 915 (Ky. 2004)).
Kentucky Revised Statute (KRS) 439.3106 provides the criteria for
revoking probation, stating in relevant part:
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Supervised individuals shall be subject to:
(a) 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
(b) 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.
KRS 439.3106(1).
The Andrews Court considered the applicability of this statute to
revocation proceedings and 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.” Andrews, 448 S.W.3d at 780.
Here, Swenson does not – and, indeed, cannot – contest that she failed
repeatedly to abide by the conditions of her probation. Nevertheless, she asserts
the circuit court erred by revoking her probation rather than issuing the graduated
sanction she requested because, in her view, her failures did not indicate she
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constituted a significant risk to prior victims or the community at large, or that she
could not be managed in the community.
Given the twenty-year sentence of imprisonment, and in light of the
fallacy of her arguments that the circuit court had predetermined her case by
having a “zero tolerance policy,” we set out in detail the extent of the exhausting
opportunities the circuit court gave Swenson to receive treatment and remain on
probation. Upon a thorough review of the record, it cannot be seriously doubted
that the circuit court went far beyond complying with only the bare requirements of
KRS 439.3106(1) and that the keys to remaining on probation were repeatedly
handed to Swenson.
In case No. 18-CR-00022, Swenson pled guilty in Hardin Circuit
Court to committing, on or about December 28, 2017, the offense of receiving
stolen property under $10,000 (a class D felony). See KRS 514.110. On January
12, 2018, she was released on bond. Thereafter, in case No. 18-CR-00244,
Swenson pled guilty to committing nineteen more criminal offenses against several
more individuals in Hardin County over a sixty-day period between December
2017 and February 2018. Further, she admitted committing many of those
additional offenses shortly after being allowed pretrial release from custody on
January 12, 2018.1
1
The specifics of her latter guilty plea are summarized below:
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• On January 13, 2018, in violation of KRS 514.150, Swenson possessed United States
mail matter of S. Soppeland while knowing or having reason to know it was stolen (a
class D felony);
• On January 13, 2018, in violation of KRS 514.110(3), Swenson possessed stolen property
under $500 by knowingly possessing checks of C. Worthington while knowing or having
reason to believe the checks were stolen (a class A misdemeanor);
• On January 13, 2018, in violation of KRS 514.150, Swenson possessed United States
mail matter of L. Baker while knowing or having reason to believe it was stolen (a class
D felony);
• On January 13, 2018, in violation of KRS 514.110(3), Swenson possessed stolen property
under $500 by possessing a Garmin GPS valued at less than $500, belonging to D.
Fryman, while knowing or having reason to believe it was stolen (a class A
misdemeanor);
• On January 13, 2018, in violation of KRS 514.110(3), Swenson possessed an HP laptop
computer valued at less than $500, belonging to J. Townsend, while knowing or having
reason to believe it was stolen (a class A misdemeanor);
• On January 13, 2018, in violation of KRS 511.040, Swenson committed third-degree
burglary by knowingly and unlawfully entering or remaining in a building located at 561
S. Deepwood Drive, Radcliff, with intent to commit a crime (a class D felony);
• On January 13, 2018, in violation of KRS 514.110(3), Swenson possessed a Garmin GPS
valued at less than $500, belonging to R. Washburn, while knowing or having reason to
believe it was stolen (a class A misdemeanor);
• From January 26 until February 2, 2018, in violation of KRS 514.030, Swenson took and
exercised control over a 2014 Ford F-150 truck valued over $10,000, belonging to Big M
Chevy, with intent to deprive the owner thereof (a class C felony);
• On January 25, 2018, in violation of KRS 514.030, Swenson took and exercised control
over an LG cellular telephone valued under $500, belonging to G. Cravens Kos, with
intent to deprive the owner thereof (a class A misdemeanor);
• On January 13, 2018, in violation of KRS 514.110(3), Swenson knowingly possessed
credit cards belonging to L. McCrobie, valued under $500, while knowing or having
reason to believe the cards were stolen (a class A misdemeanor);
• On December 17, 2017, in violation of KRS 514.110, Swenson possessed a 1995
Chevrolet truck belonging to G. Kersey, valued over $500, while knowing or having
reason to believe the vehicle was stolen (a class D felony);
• On December 24, 2017, in violation of KRS 514.110, Swenson possessed a 1999
Chevrolet S-10 truck belonging to L. Clark, valued over $500, while knowing or having
reason to believe the vehicle was stolen (a class D felony);
• On December 23, 2017, in violation of KRS 514.110, Swenson possessed a 2010
Chevrolet Cobalt belonging to S. Soppeland, valued over $500, while knowing or having
reason to believe the vehicle was stolen (a class D felony);
• On December 26, 2017, in violation of KRS 514.110, Swenson possessed a 2007
Chevrolet Cobalt belonging to S. Dailey, valued over $500, while knowing or having
reason to believe the vehicle was stolen (a class D felony);
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On April 27, 2018, the circuit court sentenced Swenson to five years’
imprisonment in 18-CR-00022 and fifteen years’ imprisonment in 18-CR-00244,
to run consecutively for a total of twenty years, with parole eligibility upon serving
twenty percent. But, the circuit court also noted Swenson was addicted to
methamphetamine and that her addiction had been part of what had motivated her
to commit her offenses. Accordingly, it referred Swenson to felony drug court
and, provided Swenson was accepted, agreed to probate her sentence for a period
of five years or longer to enable her to complete the program.
However, because of what the circuit court noted was “the extreme
nature of her addiction,” and also because Swenson had previously been enrolled
in the misdemeanor drug court program in 2014 and had failed to complete it,2
• Between December 20, 2017 and January 13, 2018, in violation of KRS 514.030,
Swenson took or exercised control of a W-2 tax form belonging to T. Lawson, valued
under $500, with intent to deprive the owner thereof (a class A misdemeanor);
• On December 20, 2017, in violation of KRS 511.030, Swenson committed second-degree
burglary by knowingly and unlawfully entering or remaining in the residence of S.
McMillen and committing a theft (a class C felony);
• Between January 13 and January 31, 2018, in violation of KRS 514.170, Swenson
committed the offense of trafficking in stolen identities (a class C felony);
• Between January 26, 2018 and February 2, 2018, in violation of KRS 514.150, Swenson
possessed United States mail including an IRA account statement, credit card application,
mortgage documents, and other mail matter of H. Owens while knowing or having reason
to believe it was stolen (a class D felony); and
• Between January 26, 2018 and February 2, 2018, in violation of KRS 514.150, Swenson
possessed United States mail including SNAP account documents of J. Owens while
knowing or having reason to believe it was stolen (a class D felony).
2
On February 24, 2014, Swenson was found guilty of misdemeanor public intoxication from
controlled substances, and she was thereby found to have violated the terms of a probation she
had already been serving from an earlier misdemeanor drug offense she had committed in 2012.
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Swenson was placed on a “waiting list.” A precondition of acceptance into the
felony drug court program was to complete a long-term drug treatment program
and reside for six to nine months at a Recovery Kentucky center beforehand.3
After explaining this precondition to Swenson at the conclusion of the April 27,
2018 hearing, the circuit court added:
COURT: I don’t want to waste time. And I want to be
very honest with you, I have grave doubts about whether
you will ever do this. I think you just want out, and the
minute you get out, you’re gonna be gone. And if you
do, you’re going to prison for twenty years. Do you
understand me?
SWENSON: Yes, sir.
COURT: Now, don’t waste our time. Because there are
other people who really want to get better, and, you
know, if you go to an RKC, you’re gonna be there and
probably with the addiction problem you have it’s
probably gonna be for the most time, you may be there
for nine months, and I don’t know for how long. And,
it’s not like being out. It’s a treatment center. And you
She was sentenced to ninety days’ imprisonment and two years’ probation, but upon her request
her sentence was suspended. Her probation was extended to enable her to complete the
misdemeanor drug court program. As discussed below, she ultimately chose to serve her
suspended sentence and voluntarily terminated her participation in the misdemeanor drug court
program in May 2016.
3
While this precondition for participation in felony drug court is not set forth in the written
volumes of record in this matter, it was extensively discussed at hearings held by the circuit court
on April 27 and August 14, 2018; and at the June 25, 2019 revocation hearing, Swenson
acknowledged:
COUNSEL: What was the reason why you didn’t get accepted into drug court?
SWENSON: I had already been in treatment court before.
COUNSEL: How long ago was that?
SWENSON: 2014.
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can’t leave. You have to successfully complete it.
Because if you don’t complete it, not only are you not
going to get into drug court, you’ll be terminated from
that, you’re going to prison for twenty years. I just want
to be fair with you because I don’t want you to waste
your time. If you’re playing, don’t play. You’re gonna
lose, alright? Do you understand what I’m telling you?
SWENSON: Yes, sir.
COURT: Now, do you really want treatment?
SWENSON: Yes, sir.
On May 1, 2018, the circuit court entered an order granting Swenson
probation and a conditional discharge – conditions that, among other things,
included: (1) being “subject to graduated sanctions imposed by Probation and
Parole in accordance with 501 KAR[4] 6:250”; (2) remaining within the area as
directed by her probation officer; (3) reporting to her probation officer as directed;
(4) obeying all rules and regulations imposed by Probation and Parole; (5)
submitting “to periodic drug and/or alcohol testing because [Swenson’s] record
indicates a drug and/or alcohol problem”; and, in conformity with what was
discussed at the hearing, (6) successfully completing the felony drug court program
and residential treatment. To fulfill the precedent condition of six to nine months
of treatment for acceptance into the felony drug court program, the circuit court
entered another order on May 14, 2018, directing Swenson to report to the Trilogy
4
Kentucky Administrative Regulations.
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Recovery Center for Women and “to complete any and all requirements and follow
all rules of Trilogy while in residence there. . . . If [Swenson] fails to complete the
program, [Swenson] shall be placed into custody and returned to the Hardin
County Detention Center and remain until further orders of the court.”
Swenson then resided at Trilogy until June 8, 2018. On that date,
Swenson’s probation officer, Deonna Davie, received a discharge report from
Trilogy stating Swenson had been terminated without completing the program due
to “receiving several behavior contracts.”5 Three days later, Swenson reported to
Officer Davie and was taken into custody.
Following an ensuing motion from the Commonwealth to revoke
Swenson’s probation, the circuit court held a hearing on August 17, 2018. There,
Swenson’s then-current probation officer, Darren Payne, testified the report from
Trilogy had not identified the specifics of Swenson’s behavioral infractions and
that a Recovery Kentucky center such as Trilogy could assess behavioral contracts
for a wide range of conduct, including “poor attitude,” “not attending meetings,”
“threatening behaviors,” or simply not making a bed correctly. He further testified,
however, that Swenson had received a total of nineteen behavior contracts between
May 15 and June 8, 2018 and that before Swenson had previously terminated
5
Probation Officer Darren Payne testified during the August 17, 2018 hearing that a “behavior
contract,” in this context, is essentially a chore or other task that a resident is required to perform
due to poor behavior.
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herself from misdemeanor drug court in May 2016, she had received four other
sanctions at two other Recovery Kentucky centers during her participation in that
program, too. Considering the number of times Swenson had been sanctioned,
along with her prior non-completion of misdemeanor drug court, Officer Payne
opined Swenson was not amenable to treatment; thus, she could not be effectively
managed in the community for purposes of probation.
Swenson, for her part, insisted she had been assessed behavior
contracts for minor offenses, such as not regularly making her bed, forgetting a
book or a raincoat, bothering another resident about cigarettes, or “cleanliness
issues.” She claimed she had been unfairly singled out by the individuals who
issued the behavior contracts. She represented that she had completed all but five
of her behavior contracts. She asserted she had been suffering from post-traumatic
stress disorder for the past eight years, as well as bipolar depression, which she
believed contributed to her behavioral difficulties and prior drug use. She also
suggested another Recovery Kentucky center, re-NEST, would be a better
environment for her, and she asked to be placed there instead.
However, Swenson did not contest the validity of Trilogy’s decision
to terminate her from its program. Discussing that matter further with Swenson
during the hearing, the circuit court stated:
COURT: So, these behavior contracts you had, five of
them remained unfulfilled when you were discharged. Is
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that the right way to say it? You didn’t complete them?
They remain broken?
SWENSON: Yes, sir.
COURT: And which ones were those again?
SWENSON: I’m not for certain, exactly.
COURT: I mean, you had so many. I mean, it’s hard to
keep up if you had nineteen contracts. I’ve never heard
that before. I send people to Trilogy all the time, I send
people to other places, I have never heard that many
behavioral contracts in that many days. That’s a record.
And that’s about you. It’s not about the staff, it’s not
about the other people there. It’s about you. So that’s
the problem. How in the world can I send you back to
Trilogy when that’s the behavior I can expect?
The circuit court also questioned Swenson regarding whether she had
ever voluntarily sought treatment for the psychological issues that allegedly
contributed to her behavior problems:
COURT: In the last eight years, how many times did you
seek treatment in the form of therapy to deal with your
PTSD? Not something court-ordered, or that probation
told you to do. I want to know what you did in the last
eight years to better your condition.
SWENSON: I seeked [sic] treatment one time through
Dr. Amedi Radcliff.
COURT: Okay. What was that?
SWENSON: Um, they prescribed me a Xanax, a
smallish dose. Then I was not able to take it as
prescribed, so I never went back.
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COURT: What do you mean you were “not able to take
it as prescribed”?
SWENSON: As an addict, I overdid it.
COURT: Of course. Right? So, you see what I’m
getting at here. Was there any therapeutic approach, any
time you would meet with a counselor to talk about it?
Because believe it or not, there is no pill that cures
PTSD. Some of it is therapy to deal with the trauma.
Have you ever engaged in therapy about your PTSD?
SWENSON: Recently in December, I was seeking to
arrange an advocate, who eventually arranged to come
down to the jail and speak to me.
The circuit court also questioned Swenson regarding her decision to
voluntarily terminate herself from the misdemeanor drug court program in May
2016:
COURT: When you were in drug court the first time, if I
understood you correctly, you had sanction after sanction
and at some point, they wanted you to do long-term
treatment?
SWENSON: Yes, sir.
COURT: And where was that?
SWENSON: They wanted me to go to Freedom House.
COURT: Okay. And you didn’t want to?
SWENSON: No, sir.
COURT: Why not?
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SWENSON: I was seven months pregnant, my time on
the shelf was less, and I didn’t want to have to drag two
kids to drug test at six o’clock in the morning.
COURT: Sounds like excuses to me.
SWENSON: It was.
COURT: It is. Did you think you were better off, seven
months pregnant, not being engaged in treatment in
Freedom House?
SWENSON: No, sir.
COURT: So, what happened then?
SWENSON: I served out my time.
COURT: Was the baby born in prison?
SWENSON: No, I was released in time.
COURT: Because you had done the math, and you’d
said, “Okay, I can get out, have the baby, and go on with
my life.” How long did that last?
SWENSON: About three months. I relapsed.
COURT: What did you relapse on?
SWENSON: Methamphetamines.
After reviewing the evidence, the circuit court decided against
revoking Swenson’s probation or requiring her to serve an alternate sentence;
instead, it granted her request to be placed at re-NEST. The court’s findings in this
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regard, pronounced orally from the bench at the conclusion of the hearing, were as
follows:
So, my thought is this. I have to go through a three-part
analysis first. Do the violations we have seen, do they
indicate a risk of, a risk to prior victims of this
defendant? Well yes, they do, because they show a
present either unwillingness or inability to engage in
treatment effectively.
Or do they create a danger or risk to the community as a
whole, which includes the defendant herself as part of the
community? No doubt that’s true. No one ever stopped
this defendant from seeking out therapy. No one ever
stopped her from doing that. And it seems to be like,
“Well, when I’m forced to do something, I’ll do it and
I’ll do it badly.” I’ve never heard of nineteen contracts in
seventeen days, it’s just incredible.
But ultimately the final factor I’m gonna have to deal
with is, I must make a finding that the defendant cannot
be managed appropriately in the community with
probation alternatives. I have no doubt if I make the
finding today that I believe this defendant cannot be
managed appropriately in the community, an appellate
court would uphold that decision on this record. Without
doubt. Because I’ve had these situations before where
this person will not engage, will not do it. The fact that
there’s something out there you can send the person to is
not the deciding factor, it’s whether the defendant can be
managed appropriately in the community, and some of
that depends on their own issues of not being a
procrastinator and not making excuses, but actively
engaging in the treatment that’s available.
So, that’s where I’m on the border. I mean, the
Commonwealth’s on the border about just revoking this
probation, which would certainly be justified. Or doing
an alternate sentence, which would also be justified. I’m
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on the border of just trying to believe that another
opportunity at a treatment placement should be provided
to this defendant, because that means someone else who
may be much more motivated and much more willing to
engage in treatment will not get that bed. And that’s
what, those are the things that make me think when I
make these decisions, I’ve got just so few places that we
can send people to for treatment, and if I send somebody
when it is not gonna be anything but, “Let me out of jail,
get me out of jail, whatever I have to say or do to get me
out of jail,” and then as soon as they’re there they go
right back to the same things they did, they get
terminated, and then I’ve wasted that limited spot.
So, when I look at the fact that this is a twenty-year
sentence we’re dealing with, one of the reasons I’ve
decided I’m not going to do the alternate sentence
approach is because I’m concerned about the defendant
doing the math. If I do an alternate sentence and she then
gets out, goes back on probation, then it’s more tempting
to just do what she’s done before: “Well, I can do this
much time and get out and go back to doing whatever I
want, or can decide differently.”
So, I would like to be hopeful, but I kind of share [the
Commonwealth’s] hesitation, wondering if this defendant
will truly ever engage in treatment. But ultimately, since
there is an available spot at re-NEST, I’m going to order
that she go to re-NEST. However, I’m going to direct
that probation and parole must receive weekly reports
while she is at re-NEST. Upon any violation of their
rules, she will be detained by the probation officer, there
will be no reason to get a warrant.
In other words, I will direct the probation officer, if re-
NEST calls and says, “We’ve got a problem, we’ve got
five behavioral contracts,” she will be detained, we’ll
come back in here, and I think from everything that’s
been said today we know what will happen then. Of
course, we don’t know until something happens, but I
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don’t know what the next option will be. So, as I said, I
will order her to be transported from the jail to re-NEST
when they confirm there is a spot available for her, and I
want that to be followed closely by probation and parole
because I’m, there’s a part of me that’s like, I think she’ll
go and run as soon as she can. Okay? So, hopefully
she’ll prove me wrong. Hopefully she’ll prove [the
Commonwealth] wrong. I don’t really enjoy the thought
of sending her away to prison for twenty years, but I’ll do
it if I have to.
In short, after reviewing Swenson’s criminal history and the course of
her various probations, the circuit court remained concerned that Swenson would
continue the pattern of behavior that had led her to commit multiple offenses and
that Swenson’s behavior would prevent her from receiving treatment absent
incarceration: She would only undergo treatment if forced to do so; she would
only put forth minimal effort during treatment; given the choice – and to her
detriment – she would choose freedom over drug treatment; and she would remain
unwilling to accept responsibility.
Nevertheless, in its post-hearing order of August 20, 2018, the circuit
court decided against revoking Swenson’s probation and instead approved her
transfer to re-NEST, stating in relevant part:
FINDINGS OF FACT
The defendant failed to abide by the terms and conditions
of probation by committing the following violations:
another failure to complete treatment at Trilogy – more
than a dozen behavior contracts during short residence
resulted in termination.
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CONCLUSIONS OF LAW
The Defendant was afforded the opportunity for a
hearing pursuant to KRS 533.050. In determining
whether to revoke the Defendant’s probation or to assess
a penalty or conditions other than revocation, the Court
has considered the requirements of KRS 439.3106 and
finds: 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.
ORDER
WHEREFORE IT IS ORDERED that the sentence of
probationary supervision is hereby: Not revoked, and in
lieu of revocation, the Court hereby imposes the
following Alternate Sentence and/or modification of
conditions: given the lengthy sentence the Deft. will
serve if she does not engage in treatment, court decided
to allow door-to-door placement at re-NEST.
However, on November 16, 2018, Swenson was discharged from the
re-NEST program. Consequently, Officer Payne submitted a November 20, 2018
violation of supervision report, once again recommending the revocation of
Swenson’s probation. A bench warrant was issued the same day for her arrest.
But, the Commonwealth did not move to revoke Swenson’s probation; no
revocation hearing was held; and the circuit court later recalled the bench warrant
in a December 13, 2018 order “due to the Defendant being compliant with
Probation and Parole.” The circuit court’s order further stated, “The Defendant
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enrolled in Serenity Place after having to leave the Re-Nest [sic] Treatment facility
due to having medical issues and has been checking in regularly with her Probation
Officer. If the Defendant fails to comply with treatment she shall be placed into
custody and taken to Hardin County Detention Center where she will remain until
further orders of the court.” Thus, “having medical issues,” and Swenson’s
relocation from re-NEST to “Serenity Place”6 – apparently a third treatment
facility that probation and parole allowed her to attend – were enough for the
circuit court to justify withdrawing Swenson’s arrest warrant.
However, this point requires further discussion. During the
subsequent probation revocation proceedings of June 25, 2019, the circuit court
would later cite Swenson’s failure to remain a resident at re-NEST as an example
of Swenson “doing the math,” demonstrating she was more interested in freedom
than treatment – just as she did in May 2016 by voluntarily terminating her
participation in misdemeanor drug court. To explain, the only statement from re-
NEST regarding why Swenson had been discharged from its program is set forth in
a November 20, 2018 letter its program coordinator submitted to Officer Payne. In
relevant part, it stated:
Ms. Swenson was exhibiting continuous behaviors not
conducive to recovery, such as dishonesty and
6
During the various hearings in this matter, this facility was intermittently referred to by the
circuit court and parties as “Serenity Place,” “Serenity Sisters,” and “Serenity Girls.”
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manipulation.[7] We suggested that she restart the
program due to these behaviors. She was unwilling to
comply, and left the program Against Medical Advice.
During her subsequent June 25, 2019 revocation hearing, Swenson
was, for the first time, confronted with this statement and required to testify
regarding why she had chosen to leave re-NEST. There, she denied engaging in
any kind of dishonest or manipulative behavior, and she insisted re-NEST had
advised her in November 2018 that it would be necessary to restart its program for
reasons associated with a bladder surgery she needed to undergo around that
time.8˒9 The point the circuit court would eventually make in citing this detail,
however, is that re-NEST had advised Swenson it would be necessary for her to
restart its rehabilitation program and that rather than accepting re-NEST’s advice,
7
An itemized list of Swenson’s behavioral infractions was not provided by re-NEST, but Officer
Payne stated in his report that they included Swenson’s refusal to surrender her cellular
telephone while residing at the facility.
8
In this respect, at the June 25, 2019 hearing, Swenson testified:
When I left re-NEST, I went to Serenity Girls, I got myself, it was a Friday to a
Monday, I let Darren Payne know what was going on. I was gonna need surgery
for IC bladder issues at the, re-NEST, that’s why they told me my original restart
was gonna have to happen, because if I had surgery and had any kind of
medication prescribed to me, I would need to have a restart anyhow. So, I got
myself into Serenity Girls with Billy-Jo, because she said she would allow me to
take medication and all I had to do is complete the program. I completed the
program February 3rd.
9
In her appellate brief, Swenson now represents she departed re-NEST because the facility was
unable “to accommodate her pregnancy.” If Swenson was pregnant during this time, or if she
intended to mean that her “IC bladder issues” were occasioned by a pregnancy, it is not reflected
in the record.
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Swenson sought to reside at Serenity Place – a facility that would not require her to
restart rehabilitation.
In any event, the record contains no documentation from Serenity
Place, but Swenson testified that in February 2019, she was permitted to leave the
facility and continue her treatment (i.e., the prerequisite for her enrollment in the
felony drug court program) while residing in an apartment with a coworker for a
month, and then in an apartment of her own until June 2019. Officer Payne also
verified Swenson later completed her prerequisite treatment in April 2019; had
thereafter remained on the waiting list for enrollment into felony drug court; and
that between February and June 2019, he had also permitted Swenson to
occasionally drive to Indiana to visit with one of her minor children.
Keeping that in mind, on May 31, 2019, Officer Payne submitted
another violation of supervision report and an accompanying affidavit, noting
Swenson had violated her probation in two more respects. First, if Swenson
received any new charges, the terms of her probation required her to report it to her
probation officer within seventy-two hours. And, Officer Payne noted, he had
discovered on his own that Swenson had been arrested in Indiana on February 23,
2019, on charges of public intoxication and reckless driving. In other words,
Swenson had not reported those charges to him at all. Officer Payne stated that as
a graduated sanction for the violation he had required Swenson “to complete 30
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Community Service Hours within the next 12 months.” Payne added that
Swenson’s Indiana charges remained unresolved and that a pre-trial conference
had been scheduled in Indiana for June 5, 2019.
As to the second violation, Officer Payne recommended revoking
Swenson’s probation for the following reason:
Kathryn Swenson reported to the office of Probation and
Parole on May 30, 2019. At that time, Ms. Swenson was
asked to submit to a random drug screen. Ms. Swenson
was unable to produce a sample for testing at that time.
Ms. Swenson was advised to return to the office on May
31, 2019 at 8 AM to produce a sample for the drug
screen. Ms. Swenson failed to show for the appointment
and has not made contact with this Officer.
...
Kathryn Swenson has been afforded every opportunity to
comply with Probation and Parole. Ms. Swenson has
failed to comply numerous times with directives from the
Court and Probation and Parole. Due to Ms. Swenson’s
inability to comply with directives on numerous
occasions, the use of Graduated Sanctions are no longer
appropriate at this time.
On June 3, 2019, the circuit court issued a warrant for Swenson’s
arrest for failing to report to her probation officer for drug testing. She was
arrested on June 7, 2019. After being taken into custody, Swenson was provided a
drug screen at the Hardin County Detention Center and tested positive for
methamphetamine. Subsequently, the Commonwealth moved to revoke her
probation.
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Swenson was later brought before the circuit court on June 11, 2019,
for a preliminary hearing to schedule revocation proceedings, and to provide
Swenson information regarding the nature of those proceedings. Whereupon, after
being Mirandized,10 Swenson represented that she had never used
methamphetamine during her probation and that the positive result to the contrary
must have occurred because she had been taking Zantac “which [her] experience
had shown” could cause a false positive. She also claimed the detention center
personnel responsible for collecting her drug screen sample had tampered with it
by mixing it with another inmate’s sample:
SWENSON: During this drug test that was done at the
jail, I watched, I took another test with a woman and I
watched the nurse, um, combined our tests together when
she sent it off to the lab. Because Ms. Clover was the
one that watched–
COURT: We’ll need to subpoena that witness. Is she
willing to be charged with tampering with evidence?
SWENSON: I have no idea. But I produced a full cup of
urine, and the other woman did not.
COURT: Why didn’t you tell me that the first time
instead of the Zantac story?
SWENSON: Well, because that is, I was, I’m on Zantac
and I mean—
COURT: You’re not helping yourself here.
10
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
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On June 25, 2019, the circuit court held the hearing with respect to the
Commonwealth’s motion to revoke Swenson’s probation. There, Officer Payne
testified consistently with his report. And Swenson, for her part, admitted to
relapsing with methamphetamine on “the week of May 30th.”
However, when pressed by the circuit court on this point, particularly
in relation to her inability to produce a specimen for drug testing on May 30, 2019,
and her failure to report for drug testing on May 31, 2019, Swenson then specified
she had only used methamphetamine on one occasion and on the date of June 3,
2019.
Swenson also testified that June 3, 2019, had been the first occasion
she had used methamphetamine since December 2017 – testimony the circuit court
found dubious. During the hearing, it reminded Swenson of her earlier admissions
that her use of methamphetamine had motivated her criminal conduct and that in
her guilty plea she had admitted committing several of her felonies and
misdemeanors in January and February 2018.
Swenson testified that after she had failed to report for drug testing on
May 31, 2019, she had left Officer Payne two voicemails over the next few days11
11
Officer Payne testified the only contact he received from Swenson between May 30, 2019, and
the date of her arrest consisted of one voicemail message. He recalled receiving it the day before
she was arrested.
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and that because he had not returned her phone calls, she had assumed her failure
to report was not any cause for concern. She admitted, however, that her failure to
report was a violation of her probation.
With respect to her recent charges in Indiana, Swenson insisted that
while her case remained ongoing, she was innocent and the case against her would
inevitably be dismissed in her favor.12 As to why she never informed her probation
officer of her arrest, she testified:
SWENSON: I waited for him to call me.
COURT: Why?
SWENSON: Because I was under the miscommunication
that I was supposed to let him know when I pled guilty.
COURT: No. That’s not in the papers you signed.
Okay? Not a miscommunication from him. That’s in the
papers that I know you signed. You tell them. They
don’t do things for you, you tell them. Because they
can’t keep up with people being arrested in another state.
You’re supposed to tell them within 72 hours because if
something like that is going on, it may indicate that there
needs to be a change in the probation, get somebody to
treatment. There’s all kinds of things that need to
happen. So that was your mistake, right?
SWENSON: Yes, sir.
12
The record only indicates Swenson’s Indiana charges are misdemeanor public intoxication and
reckless driving, and that the case against her remains ongoing.
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Over the course of the hearing, the circuit court exhaustively reviewed
the nature of Swenson’s criminal offenses, as well as the details of what had
transpired during her probation, including what is set forth above. Upon the
conclusion of the hearing, Swenson’s counsel argued:
Well, your honor, it’s clear that she violated the terms of
her probation, but I would ask the court to give her a
sanction. She did go for a period of time where she had
no positive drug screens. There’s only been essentially
one here, recently, as far as a positive drug screen. We
know that she’s got the ability to go for long stretches of
time without using drugs. Um, I would suggest to the
court that the court just give her a sanction of up to
twelve months, if the court would be inclined to suspend
part of that sanction on the condition that she complete a
long-term rehab I would ask for that as well.
Conversely, the Commonwealth advocated revoking Swenson’s
probation:
Judge, this is not the first time we’ve been here. In fact,
the last time we were here, she was given, I have words
to the effect of strict compliance, she was put on weekly
progress reports. That wasn’t, that wasn’t even a year
ago. She’s someone who, I think, is trying to do
probation on her own terms and I don’t think has been
entirely truthful. I’ve heard her use the phrase, “I’m
gonna be honest with you,” about ten times. It concerns
me when I hear someone use those words because,
obviously, there may be a lot of dishonesty when she has
to clarify when she’s being honest. But, I have some
concern that she would complete any type of treatment
offered to her. She’s had multiple types of treatment
offered. Drug court did not work. PSAP, she’s not
eligible for. I don’t think there’s anything that’s going to
keep her from being a danger to herself or the community
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other than incarceration. She’s in violation of her
probation, I don’t think she can be managed, I don’t think
that she’s going to adhere to anything, she’s shown no
willingness to adhere to anything, and just continuously
making excuse after excuse. So, I think that her
probation should be deemed violated and she should
serve her term.
On July 8, 2019, the circuit court entered its order revoking
Swenson’s probation. The findings and conclusions set forth in its order were as
follows:
FINDINGS OF FACT
The defendant failed to abide by the terms and conditions
of probation by committing the following violations:
1. failure to complete treatment, continued drug use.
2. new charges out of Indiana.
CONCLUSIONS OF LAW
The Defendant was afforded the opportunity for a
hearing pursuant to KRS 533.050. In determining
whether to revoke the Defendant’s probation or to assess
a penalty or conditions other than revocation, the Court
has considered the requirements of KRS 439.3106 and
finds: Such violation(s) constitute a significant risk to
prior victims of the Defendant or the community at large
(including the Defendant) and cannot be appropriately
managed in the community. As stated in detail on the
record, the Courts have tried multiple treatment facilities
and drug court. The Defendant will not engage in any
long-term treatment plan. She will continue with
manipulation and dishonesty. Her drug use will lead to
more thefts.
(Emphasis added.)
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As emphasized, however, the circuit court’s order incorporated more
detailed oral findings and conclusions given from the bench during the conclusion
of the June 25, 2019 hearing. Those findings and conclusions were as follows:
COURT: I guess ultimately here’s what I have to decide.
There’s no question she violated her probation in
multiple ways. I mean, I could list the different ways.
But here’s the rules, here’s the law about this. I have to
decide, is her conduct in violation of her probation, does
that represent a danger to prior victims or a danger to the
community including herself? Well, yeah, it actually
does. If somebody’s been through that much treatment, I
mean we’ve been through everything, treatment, drug
court, re-NEST, all of these things, Trilogy, and a lot of it
is self-destructive behavior on her part. Then, things
blow up again, right? So, my finding would have to be,
yes it is. And here’s why. Eventually, if you did relapse
on meth, and you start going down that road again, it’s
just a matter of time before you’re gonna steal something
else—
SWENSON: That’s why I asked for help.
COURT: Yeah. And I gave you help.
SWENSON: Yes, sir, I mean—
COURT: More than once. But here’s the problem.
Here’s the thing. Yes, I think you would be a danger to
yourself. If you were still out on probation, you would
either be a danger to yourself or other people in the
community or you’re going to commit, eventually go
back to committing crimes, probably related to theft to
feed a drug addiction again. See, the second part is the
part I’ve been trying to find an answer to because that is,
“Judge, do you believe this person can be appropriately
managed in the community?” I have to find that they
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cannot be appropriately managed in the community in
order to revoke probation.
That’s why I’ve spent all this time, I didn’t want to waste
anybody’s time, and I know it got frustrating to listen to
me asking and going through all of this. People get tired
of it, but I’m the one who has to decide this. And I want
to make sure I leave no stone unturned and say, “What on
Earth can we do now?”
And the answer is nothing. I’m sorry to say, but nothing.
We’ve gone through all the different things that we can
try. And what I’m being asked to do, this is what’s really
telling me something, is to say, “Well, I’ve made an IOP
appointment,” or “I’ve done this, and I want to do this.”
It’s not enough. It’s too little, too late, and it isn’t going
to solve the problem. It just isn’t. So, it’s really difficult
for me to sit back and say, you know, you had this
chance to avoid a really powerful, long sentence, and
more than one chance was given, and you just keep
blowing it.
And I have to agree with part of what I heard here, you
know, you’re good at finding excuses. You’re good at
saying, “Well this, but this and this.” And “This person
did that.” And “Listen, that’s really not what happened.”
If you aren’t willing to take responsibility more than you
are, no treatment I could come up with would work.
So, at the end of the day, you know, I thought about what
defense counsel just said. Look, I could do this because a
twenty-year sentence is tough. But once at 20%, you’ve
got jail credit in, you’re gonna be able to see the parole
board in the not too distant future if I revoke your
probation.
But I could, under the statute, revoke her probation and
make her serve twelve months. What for? I can’t send
her to PSAP because she’s blown that up. I can’t send
her to PSAP to get treatment while she’s in for that 12
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months, that she can’t walk away from. She can’t, you
know, she has behavioral problems, they’ll throw her out
of that, too, but at least she won’t just walk away and go
do something else, drugs or anything else.
And I throw my hands up, in part, because I’m so very
frustrated with it. I wish there was something more we
could do, but I think she’s been given a lot of chances
and she’s just blown them all. And I am not going to
waste any more resources. There are other people who
can go with the types of treatments that I can do that
might actually want to do it and are not just playing me.
My decision, then, based on what I’ve said, is that
probation is revoked.
In short, after once again reviewing Swenson’s criminal history and
the course of her various probations, the circuit court revoked Swenson’s probation
after concluding the pattern of behavior that had led Swenson to commit a
multitude of criminal offenses had not changed and that Swenson’s behavior had
indeed prevented her from receiving treatment absent incarceration: She had
undergone treatment only when forced to do so; she had only put forth minimal
effort during treatment; given the choice, and to her detriment, she had chosen
freedom over continued drug treatment; and she had remained unwilling to accept
responsibility.
Swenson now appeals. First, she asserts the circuit court
misunderstood the record when it indicated in its oral findings that she had “been
through everything, treatment, drug court, re-NEST, all of these things, Trilogy.”
Specifically, Swenson notes that, ultimately, she was never enrolled in the felony
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drug court program; she argues her “departure from reNEST [sic] for Serenity
Place was legitimately due to the latter facility’s ability to accommodate her
pregnancy”; and she notes that the circuit court had already considered the fact that
she had been assessed nineteen behavior contracts against her at Trilogy, and had
previously rejected it as a basis for revoking her probation. Accordingly, she
argues, those details cannot support the circuit court’s determination, in its July 8,
2019 order, that she violated her probation.
To be clear, however, the circuit court never insinuated Swenson had
ever enrolled in the felony drug court program; it was referencing her self-
termination from the misdemeanor drug court program. And, nothing of record
indicated re-NEST was “unable to accommodate” any medical issues Swenson
may have had; by Swenson’s own admission, she left that facility because she did
not wish to restart their program and desired a quicker treatment option.
More to the point, the circuit court did not cite those events, or the
nineteen behavior contracts assessed against Swenson during her stay at Trilogy, to
support the notion that she violated her probation for purposes of its July 8, 2019
order. It did so because, among other things, KRS 439.3106 requires trial courts to
determine whether a probationer can be “managed in the community before
probation may be revoked.” Andrews, 448 S.W.3d at 780. As discussed at length
in this opinion, the circuit court considered those events, along with the many other
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events outlined above, and inferred she could not. For the sake of brevity, we will
not repeat the breadth of the circuit court’s analysis in that respect; suffice it to say,
its inferences were reasonable, and its finding was not an abuse of discretion.
Swenson also asserts, once again, that her reckless driving and public
intoxication charges in Indiana will be dismissed because she is innocent. But, this
point is irrelevant for at least two reasons: (1) nothing of record indicates those
charges have been dismissed; and in any event, (2) in citing “new charges out of
Indiana” as a violation of Swenson’s probation, the circuit court was not
referencing Swenson’s guilt, but her failure to report those charges to her
probation officer.
Swenson also likens herself to the appellant in Helms v.
Commonwealth, 475 S.W.3d 637 (Ky. App. 2015). There, she notes, appellant
Helms’ probation was revoked after he tested positive for methamphetamine on
one occasion, and the revocation was ultimately deemed an abuse of discretion
because it had resulted from a court-enforced “zero-tolerance” provision. Swenson
points out that she, too, only tested positive for methamphetamine on one occasion
before her probation was revoked and that during her April 27, 2018 sentencing
hearing the circuit court told her, “If you don’t complete [drug treatment], not only
are you not going to get into drug court, you’ll be terminated from that, you’re
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going to prison for twenty years,” which she believes is akin to a “zero-tolerance”
provision.
However, “one positive test for methamphetamine” is the only
similarly between Swenson and Helms. For example, Helms was on pretrial
felony diversion for a first offense and deemed a “low-risk” offender prior to his
revocation. Id. at 639. Swenson, on the other hand, was on probation after having
already been sentenced to twenty years’ imprisonment for twenty felony and
misdemeanor offenses – none of which was her first offense – and was deemed
“high-risk.”13
Prior to revocation, Helms’ probation officer never considered giving
him any type of graduated sanction because the trial court had inserted a “zero-
tolerance” provision in its pretrial diversion order. Id. Here, no “zero-tolerance”
provision was ever added to any written order of record; each of Officer Payne’s
reports contemplated assessing graduated sanctions; and Officer Payne did assess
Swenson a graduated sanction for her failure to report her Indiana charges. Indeed,
the circuit court did not revoke Swenson’s probation on August 20, 2018, despite
its determination that Swenson’s conduct at Trilogy had violated her probation.
And in both its August 20, 2018, and July 8, 2019 orders, the circuit court carefully
The circuit court set forth its determination that Swenson was a “high risk” offender in an
13
April 2, 2018 order.
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explained why it did or did not revoke her probation – not due to any immutable
policy, but due to what it perceived was Swenson’s ability to be managed in the
community.
Helms was also characterized by his probation officer as
“cooperative”; he did not contest his violations; he admitted responsibility for his
violations; nothing of record demonstrated he was unwilling to be effectively
managed during probation; and he testified to his willingness to “begin his entire
period of pretrial diversion anew.” Id. at 640.
By contrast, the circuit court here reasonably inferred from Swenson’s
testimony, Officer Payne’s testimony, and the various reports of record that
Swenson was uncooperative. As discussed above, Swenson downplayed or
contested her violations, and on at least one occasion – i.e., June 11, 2019, when
she denied using methamphetamine at all – instead blamed her positive result on
“Zantac” or the malfeasance of jail personnel. Furthermore, on at least two
occasions (namely, when she voluntarily terminated her participation in
misdemeanor drug court in May 2016, and when she chose to leave re-NEST for
Serenity Place), Swenson demonstrated she had more interest in freedom than a
longer term of treatment. And following both of those occasions, she relapsed
within three months.
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In other words, Helms does not reflect the circuit court committed any
error in this matter.
Lastly, Swenson contends the circuit court’s factfinding was
inadequate. Again, we disagree. From its written and oral findings, the circuit
court specified Swenson had violated her probation by: (1) failing to report her
charges in Indiana; (2) failing to report to her probation officer for mandatory drug
testing; and (3) testing positive for methamphetamine – violations Swenson does
not contest. It carefully considered the additional necessary factors required by
KRS 439.3106. And considering the record, the circuit court’s findings were
clearly not an abuse of its discretion.
Accordingly, we AFFIRM.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Roy Alyette Durham II Daniel Cameron
Assistant Public Advocate Attorney General of Kentucky
Frankfort, Kentucky
Kristin L. Conder
Assistant Attorney General
Frankfort, Kentucky
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