RENDERED: MARCH 26, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0303-MR
NICKIE MILLER APPELLANT
APPEAL FROM POWELL CIRCUIT COURT
v. HONORABLE KENNETH PROFFITT, SPECIAL JUDGE
ACTION NO. 14-CR-00109
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.
CLAYTON, CHIEF JUDGE: Nickie Miller appeals from the Powell Circuit
Court’s decision to revoke his probation and impose a ten-year prison sentence.
Upon review, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Powell County Grand Jury indicted Miller in September of 2014
for trafficking in a controlled substance in the first degree, second offense (two or
more grams of heroin); trafficking in a controlled substance in the first degree,
second offense (two or more grams of methamphetamine); trafficking in a
controlled substance in the first degree, second offense (less than ten dosage units
of oxycodone); trafficking in a controlled substance in the second degree (less than
20 dosage units of hydrocodone); possession of drug paraphernalia; and possession
of a firearm/handgun by a convicted felon. At Miller’s arraignment in September
of 2014, his appointed attorney indicated that Miller had been diagnosed with
cancer and asked the trial court to take that into account when considering Miller’s
bond. The trial court ultimately released Miller on his own recognizance in
October of 2014 in order to obtain medical assistance regarding his cancer
diagnosis.
In March of 2015, Miller was arrested in Wolfe County for alcohol
intoxication and disorderly conduct in the first degree. Thereafter, in August and
September of 2015, various pre-trial conferences and hearings were continued
while Miller obtained treatment. At the end of 2015, it was determined that Miller
was in custody in Montgomery County. The Powell Circuit Court issued a bench
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warrant, and the case was continued throughout 2016 while Miller remained in
custody in Montgomery County on other charges.
On April 5, 2017, Miller appeared before the trial court to request that
his bond in Powell County be changed to a surety bond, as he was able to post a
property bond in Montgomery County, and that he be released to home
incarceration. Miller indicated at that court appearance that he had been diagnosed
with lung cancer and would again have to undergo medical treatment. The case
was again continued throughout 2018, with a trial date ultimately set for April 15,
2019.
Immediately prior to the trial in April of 2019, the Commonwealth
offered Miller a plea agreement in which it agreed to dismiss the trafficking in a
controlled substance in the second degree charge and the possession of drug
paraphernalia charge. Thereafter, on April 15, 2019, Miller pled guilty to the
remaining charges. After Miller’s guilty plea and before his sentencing, Miller
was released on his own recognizance with the condition that his release be
monitored and that he have no firearms, commit no further offenses, and consume
no alcohol or illegal substances. The Commonwealth filed a motion to revoke
bond arguing that Miller had violated the terms of his bond by failing to report on
monitored conditional release as directed. Miller was taken back into custody on
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May 8, 2019, until the sentencing. On May 22, 2019, the trial court accepted
Miller’s guilty plea and sentenced him to a total term of ten years’ imprisonment.
Miller subsequently filed a motion for shock probation on July 5,
2019. The trial court granted Miller’s motion and placed Miller on probation for a
period of five years. The conditions of probation included that Miller not commit
another offense, avoid injurious or vicious habits, avoid persons of disreputable or
harmful character, and promptly notify his probation officer of any change of
address. The trial court also imposed supplemental conditions requiring that Miller
be randomly tested for alcohol and illegal drugs and remain outside of Powell,
Wolfe, Breathitt, and Montgomery Counties.
On January 7, 2020, the Commonwealth moved to revoke Miller’s
probation. As grounds for the motion, the Commonwealth stated that Miller was
seen in Powell County in violation of a supplemental condition of probation.
Officer Caudill, Miller’s probation officer, also filed a Violation of Supervision
Report, which stated that Miller had tested positive for methamphetamine in a
urine drug screen, had left the area of supervision without permission of his
probation officer, and had failed to cooperate with his probation officer.
The trial court held a revocation hearing on January 22, 2020. Before
taking Miller’s testimony, the trial court stated that the supplemental condition
requiring Miller to stay out of Powell County was unenforceable and therefore
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would have no bearing on its decision regarding probation. Officer Caudill then
testified on behalf of the Commonwealth, and Miller testified on his own behalf.
Officer Caudill’s testimony largely mirrored the information
contained in the Violation of Supervision Report. He also testified that Miller
rescheduled their initial meeting several times and that he was unable to drug test
Miller during their first meeting. Miller was given a urine drug test two weeks
later which resulted in the positive test for methamphetamine. The test also
showed that the urine sample was diluted, an indication that Miller had attempted
to alter the test.
In his testimony, Miller did not dispute the violation for
methamphetamine use. He testified that he used methamphetamine on multiple
occasions and would have tested positive if he had been drug tested during his first
meeting with Officer Caudill. Miller also admitted to associating with other drug
users and living at numerous places without notifying his probation officer.
At the conclusion of the hearing, the trial court revoked Miller’s
probation. Specifically, the trial court stated:
I hereby find by a preponderance of the evidence that the
defendant has violated the conditions of his probation by
using drugs. . . . His testimony was that he’s used I guess
meth on a number of occasions since he’s been shock
probated.
....
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If you take this just in terms of the initial one test, but
you take his testimony that he would have tested positive
earlier, you take his testimony that he was using on a
recurring basis since being released . . . you take the
original seriousness of his charges and you take the fact
that it appears he’s been unable to be managed on
probation in the past, I find that probation should be
revoked.
....
I find based upon my explanation earlier that he is a
significant risk to the community by his constant use of
drugs and that by his actions in this case it appears that
he cannot be appropriately managed in the community.
The trial court also listed Miller’s extensive criminal history—including theft by
unlawful taking, DUI, probation violations, burglary, drug trafficking, and
weapons charges—as a basis for its decision.
The trial court subsequently entered a written order of probation
revocation in February of 2020. The order stated:
That the Defendant violated the terms of his probation by
admitting to repetitive use of methamphetamine,
associating with other convicted felons and failing to
abide by the directives of Probation and Parole.
....
That the Defendant violated his probation pursuant to
KRS[1] 439.3106(1) in that Defendant’s failure to comply
with the conditions of supervision constitutes a
significant risk to the community at large and cannot be
appropriately managed in the community.
1
Kentucky Revised Statutes.
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The Court has granted the Defendant shock probation
and attempted community supervision through Probation
and Parole.
That the Defendant is therefore a risk to himself and/or
others in the community at large.
The Court has considered the Defendant’s criminal
record, risk of future criminal behavior and behavior
during community supervision.
The trial court imposed Miller’s original sentence of ten years’
imprisonment, and this appeal followed.
ANALYSIS
A trial court has discretion in probation revocation matters but must
exercise its discretion “consistent with statutory criteria.” Commonwealth v.
Andrews, 448 S.W.3d 773, 780 (Ky. 2014). Specifically, before revoking
probation a trial court must make two findings under KRS 439.3106(1): (1)
whether the alleged probation violation “constitutes a significant risk to prior
victims of the supervised individual or the community at large” and (2) whether the
defendant “cannot be appropriately managed in the community[.]”
A trial court is not required to provide explanations for the statutory
findings; instead, it must only make the findings, which must be “supported by the
evidence of record.” McClure v. Commonwealth, 457 S.W.3d 728, 733 (Ky. App.
2015). Further:
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KRS 439.3106 permits, but does not require, a trial court
to employ lesser sanctions. . . . The elective language of
the statute as a whole creates an alternative employed and
imposed at the discretion of the trial court—discretion
the Supreme Court insisted the trial court retained in light
of the new statute. Nothing in the statute or in the
Supreme Court’s interpretation of it requires the trial
court to impose lesser sanctions prior to revoking
probation.
Id. at 732 (emphasis in original) (citation omitted).
We review a trial court’s revocation decision for abuse of discretion.
Andrews, 448 S.W.3d at 780. An abuse of discretion occurs when a trial court’s
decision is “arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations
omitted).
Miller argues on appeal that there was no evidence to support the
court’s findings that he could not be managed in the community and that he was a
significant risk to the community at large. We are therefore tasked with
determining whether the trial court’s findings under KRS 439.3106 were supported
by the record. While on shock probation, Miller testified that he repeatedly used
drugs, and evidence from his probation officer indicated that he attempted to alter
one of his drug tests. “These facts constituted substantial support for the
conclusion that a person who would go to such lengths to continue using a
substance he was forbidden to use under penalty of [ten] years in prison posed a
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significant risk to, and was unmanageable within, the community in which he
lived.” McClure, 457 S.W.3d at 733. Moreover, Miller had a lengthy criminal
record spanning many years, including numerous probation violations, which
supported the trial court’s conclusion that he could not be managed within the
community. Finally, as previously discussed, KRS 439.3106 does not require the
trial court to impose a lesser sanction on Miller. See id. at 732. In short, the record
supports the trial court’s decision.
CONCLUSION
For the foregoing reasons, the Powell Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Julia K. Pearson Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Aspen Roberts
Assistant Attorney General
Frankfort, Kentucky
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Nickie Miller v. Commonwealth of Kentucky
Combined Opinion