RENDERED: SEPTEMBER 18, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-000307-MR
AND
NO. 2019-CA-000308-MR
ADAM BLANTON APPELLANT
APPEALS FROM EDMONSON CIRCUIT COURT
v. HONORABLE PHILLIP R. PATTON, SPECIAL JUDGE
ACTION NOS. 12-CR-00095 AND 15-CR-00083
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: GOODWINE, TAYLOR, AND K. THOMPSON, JUDGES.
TAYLOR, JUDGE: Adam Blanton brings these appeals from December 19, 2018,
orders revoking his probation in Action No. 12-CR-00095 and Action No. 15-CR-
00083. We affirm.
In Action No. 12-CR-00095, appellant entered a guilty plea to
criminal possession of a forged instrument and received pretrial diversion for a
period of five years on February 18, 2013. Thereafter, on January 25, 2016, in
Action No. 15-CR-00083, appellant entered a guilty plea to second-degree
burglary, third-degree assault, and theft by unlawful taking under $500. By
judgment entered April 18, 2016, the circuit court sentenced appellant to ten-years’
imprisonment in Action No. 15-CR-00083 to run consecutively to his five-year
sentence in Action No. 12-CR-00095. The circuit court also revoked appellant’s
pretrial diversion in Action No. 12-CR-00095.
On January 23, 2017, the circuit court granted appellant’s motions for
shock probation in both cases, so he could attend an in-patient drug treatment
program. Appellant was eventually discharged from the treatment program for
testing positive for drugs. The Commonwealth then filed motions to revoke
appellant’s shock probation. By orders entered October 2, 2017, the circuit court
revoked appellant’s shock probation in Action Nos. 12-CR-00095 and 15-CR-
00083.
Appellant then filed new motions for shock probation to obtain
treatment at a different facility. By orders entered November 27, 2017, the circuit
court granted the motions for shock probation.
While on shock probation, appellant was charged with violation of an
emergency protective order/domestic violence order (EPO/DVO), resisting arrest,
and second-degree disorderly conduct on November 15, 2018 (Action No. 18-M-
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00181). And, on November 23, 2018, appellant was charged with careless driving,
driving under the influence of alcohol/drugs, disorderly conduct, and refusal to
submit to a urine/blood/breath test (Action No. 18-M-00185).
Because of these new charges, the Commonwealth again filed motions
to revoke appellant’s shock probation in Action Nos. 12-CR-00095 and 15-CR-
00083. Following an evidentiary hearing, the circuit court granted the motions and
revoked appellant’s shock probation in Action Nos. 12-CR-00095 and 15-CR-
00083 by orders entered December 19, 2018.
Appellant then filed a notice of appeal in both cases (Appeal No.
2019-CA-000307-MR in Action No. 12-CR-00095 and Appeal No. 2019-CA-
000308-MR in Action No. 15-CR-00083). The Court of Appeals consolidated the
appeals by order entered May 14, 2019. Thereafter, appellant filed a single brief
and raised identical arguments in both appeals.
Appellant contends that the circuit court erroneously revoked his
probation. Appellant believes that the circuit court failed to follow the mandates of
Kentucky Revised Statutes (KRS) 439.3106(1) by not undertaking an “analysis to
explain how [appellant] constituted a danger to the community and could not be
appropriately managed in the community.” Appellant’s Brief at 8. Additionally,
appellant asserts that there was a “lack of substantive evidence” presented at the
hearing to support the circuit court findings that appellant constituted a danger to
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the community or his victims and could not be appropriately managed in the
community. In the end, appellant argues that the circuit court merely parroted the
required language under KRS 439.3106(1) to justify revoking his probation.
In Commonwealth v. Andrews, 448 S.W.3d 773, 777-78 (Ky. 2014),
the Kentucky Supreme Court held that the circuit court was mandated by KRS
439.3106(1) to find whether (a) the probationer’s failure to comply with terms of
probation constituted a significant risk to prior victims or the community at large,
and (b) the probationer could not be appropriately managed in the community.
Both findings must be made by the circuit court as “conditions precedent to
revocation” of probation under KRS 439.3106(1), and substantial evidence must
support these findings. Andrews, 448 S.W.3d at 777; Hall v. Commonwealth, 566
S.W.3d 578, 581 (Ky. App. 2018).
In the December 19, 2018, orders revoking shock probation, the
circuit court specifically found that appellant “constitutes a significant risk to prior
victims [or] the community at large, and he cannot be adequately managed in the
community.” These are the mandated findings under KRS 439.3106(1); thus, it is
clear that the circuit court complied with the mandate of KRS 439.3106(1) to make
these findings.
As to whether substantial evidence supported same, it is undisputed
that appellant was on pretrial diversion in Action No. 12-CR-00095 when he
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committed the criminal offenses in Action No. 15-CR-00083. It is also
uncontroverted that appellant has been granted shock probation on two separate
occasions by the circuit court in both Action Nos. 12-CR-00095 and 15-CR-00083.
Appellant’s first shock probation was revoked due to his drug activity, and the
second shock probation is at issue herein.
At the revocation hearing, the Commonwealth introduced evidence
that appellant was charged with numerous offenses while then on his second shock
probation in both Warren County and Edmonson County – violation of an
EPO/DVO, resisting arrest, second-degree disorderly conduct, careless driving,
driving under the influence of alcohol/drugs, and refusal to submit to a
breath/blood/urine test (Action Nos. 18-M-00181 and 18-M-00185). And, these
numerous offenses were apparently committed while appellant was intoxicated.
These new offenses coupled with appellant’s prior offenses indicate a
pattern of criminal conduct that poses a danger to the community. Moreover,
appellant has been granted pretrial diversion and shock probation, but violated the
conditions of both. Appellant’s criminal conduct has apparently been driven by his
alcohol/drug addiction and has persisted while on diversion/shock probation.
Appellant’s persistent criminal conduct illustrates that he cannot be appropriately
managed in the community. Consequently, we conclude that substantial evidence
supports the circuit court’s findings that appellant poses a significant risk to the
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prior victim/community and he could not be adequately managed in the community
per KRS 439.3106(1). Additionally, we point out that the circuit court is not
required to offer an analysis explaining how appellant posed a danger to the
community and could not be appropriately managed in the community. McClure
v. Commonwealth, 457 S.W.3d 728, 734 (Ky. App. 2015). KRS 439.3106(1) and
Andrews, 448 S.W.3d 773 only require findings and sufficient evidentiary support
in the record to support same. We, thus, conclude that the circuit court complied
with KRS 439.3106(1).
Appellant next asserts that “under KRS 439.3106(2) the appropriate
punishment for the alleged violation . . . was sanctions other than revocation and
imprisonment.” Appellant’s Brief at 12. We disagree.
KRS 439.3106 permits the circuit court to impose a lesser sanction
than revocation of probation. McClure, 457 S.W.3d at 732. However, it does not
require a lesser sanction. Id. The circuit court possesses discretion to determine
whether to revoke probation or to impose a lesser sanction. Andrews, 448 S.W.3d
at 779.
The record reflects that appellant has been given at least three chances
to remain free from incarceration since his convictions. As hereinbefore stated, the
evidence supported the circuit court’s revocation of appellant’s probation. As
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such, the circuit court did not abuse its discretion by failing to impose a lesser
sanction under KRS 439.3106(2).
Appellant also alleges that the circuit court violated due process by
revoking appellant’s shock probation. Appellant maintains that “[d]ue process
requires that a trial court make findings as to ‘the evidence relied and the reasons
for revoking probation.’” Appellant’s Brief at 9 (citation omitted). Appellant
maintains that the circuit court “failed to identify the evidence of record that it
relied on to revoke [appellant’s] probation.” Appellant’s Brief at 11.
It is well-established that due process requires the circuit court to set
forth written or oral statements identifying the reasons for probation revocation and
the evidence relied upon to support same. Commonwealth v. Alleman, 306 S.W.3d
484, 486-88 (Ky. 2010).
In its December 19, 2018, orders, the circuit court specifically cites to
appellant’s new criminal charges as the reason for revoking probation. And, at the
revocation hearing, the circuit court orally stated that appellant violated the terms
of his probation by receiving the new charges. The circuit court cited the new
charges, the arrest citations for these charges, and a report filed by Probation and
Parole for evidentiary support. Considering the December 19, 2018, orders and the
circuit court’s oral pronouncements at the revocation hearing, we are of the opinion
that the circuit court did not violate due process by revoking appellant’s probation.
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Accordingly, we hold that the circuit court did not improperly revoke
appellant’s shock probation in Action Nos. 12-CR-00095 and 15-CR-00083.
For the foregoing reasons, the orders of the Edmonson Circuit Court
are affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Steven Nathan Goens Andy Beshear
Assistant Public Advocate Attorney General of Kentucky
Department of Public Advocacy
Frankfort, Kentucky Lauren R. Lewis
Assistant Attorney General
Frankfort, Kentucky
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