RENDERED: OCTOBER 8, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1385-MR
JAMES K. GILLMAN APPELLANT
APPEAL FROM MARTIN CIRCUIT COURT
v. HONORABLE JOHN DAVID PRESTON, JUDGE
ACTION NO. 16-CR-00091
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; GOODWINE AND McNEILL,
JUDGES.
CLAYTON, CHIEF JUDGE: James K. Gillman (“Gillman”) appeals from the
Martin Circuit Court’s order revoking his probation and remanding Gillman to the
Department of Corrections to begin serving a two-year sentence. Based upon a
careful review of the record and applicable law, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On September 1, 2016, the Martin County Grand Jury indicted
Gillman on charges of first-degree fleeing and evading, first-degree wanton
endangerment, second-degree possession of a controlled substance, carrying a
concealed deadly weapon, operating a motor vehicle without a license, and
speeding twenty-six miles per hour or more over the speed limit.
The incident in question began when a Martin County deputy
observed a grey Dodge Dakota pulling out of a parking lot with expired tags. The
officer attempted to make a traffic stop after witnessing the vehicle accelerate away
at a high rate of speed and pass another vehicle on a double yellow line at a curve,
causing the other vehicle to run off the roadway. During the officer’s attempted
traffic stop, Gillman not only failed to stop but accelerated his vehicle and caused
another vehicle to run off the road to avoid a collision. The pursuit ended with
Gillman jumping out of his vehicle and the officer apprehending Gillman on foot.
After his arrest, the officer found four Suboxone strips in Gillman’s wallet and
nunchucks under one of the seats of Gillman’s vehicle.
Thereafter, on May 18, 2017, Gillman entered a guilty plea to all the
charges included in the indictment except for the speeding charge, which was
dismissed. On July 6, 2017, the circuit court sentenced Gillman to two years’
imprisonment but probated Gillman’s sentence on the condition that he serve
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ninety days in the county jail. Gillman was under the general conditions of
probation, including a prohibition on the use of narcotics, a requirement that he
report any arrest within seventy-two hours, a requirement that he report to the
probation office regularly, and a requirement that he report any change of address
to his probation officer.
After being placed on probation, the record reflects that Gillman
repeatedly violated the terms of such probation. On December 3, 2017, he tested
positive for Oxycodone and signed a form admitting to his use of such substance.
He received a new felony charge of theft by unlawful taking over $500 but under
$10,000 in December of 2017. Moreover, he failed to report to his probation
officer on four different occasions throughout January of 2018.
Gillman’s probation officer ultimately filed a violation of supervision
report on January 16, 2019. The report stated that, on January 8, 2019, Gillman
was arrested in Pike County and charged with leaving the scene of an accident.
Further, the report noted that, on January 11, 2019, while Gillman appeared in the
lobby of the probation office, he failed to speak to his supervising officer before
leaving or to report his new arrest to his probation officer.
On January 14, 2019, two probation officers attempted to make
contact with Gillman at 172 Gilliam Branch Road, the address which Gillman had
provided to the probation office at the time that he was placed on probation and the
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only address that the office had on file for Gillman. However, not only was
Gillman not living there, the residence itself had burned down. Having no other
address for Gillman, the officers left a notice directing him to report to the
probation office at 8:30 a.m. on January 15, 2019. Gillman failed to report but did
leave a message on one of the probation officer’s cell phones on January 15, 2019.
Gillman’s probation officer testified at the probation violation hearing that he had
no knowledge of what Gillman said in the message but stated that Gillman gave
“excuses” as to why he could not report on that day. Gillman’s probation officer
phoned Gillman back and left a message instructing him to report at 8:30 a.m. on
January 16, 2019. Gillman failed to report at that time.
The Commonwealth thereafter filed a motion to revoke Gillman’s
probation on January 29, 2019. The circuit court was forced to issue bench
warrants when Gillman failed to appear for his scheduled revocation hearing dates
on both February 7, 2019, and February 21, 2019. Gillman did not ultimately
return into supervision or custody until over seventeen months later on July 31,
2020.
The circuit court held a probation violation hearing on September 3,
2020, and September 17, 2020. On those dates, defense counsel called Gillman’s
sister, Marsha Siebenick, to testify. She stated that their mother had been suffering
from terminal cancer during a portion of the period in question and that Gillman
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was her sole caretaker. Their mother ultimately passed away in March of 2019.
Siebenick also testified that the residence at 172 Gilliam Branch Road had burned
down in approximately 2015 or 2016, several years before the time that Gillman
began probation, and that Gillman had lived with his mother at 143 Gilliam Branch
Road that entire time.
The court subsequently issued an order revoking Gillman’s probation
on September 18, 2020. In its order, the court noted that the Commonwealth had
filed a motion to revoke Gillman’s probation on January 29, 2019, and that
Gillman was not arrested until July 31, 2020, some seventeen months after the
issuance of the bench warrant for his arrest. Further, the court noted that Gillman’s
pretrial services report listed his new criminal activity (“NCA”) risk level as “a
high 9.” Finally, the court noted that Gillman had three prior felony convictions,
including two for escape in the second degree.
Gillman thereafter filed a motion to alter, amend, or vacate requesting
that the court vacate its order revoking Gillman’s probation and finding instead
that Gillman’s probation officers failed to perform their mandatory statutory duties
and that such failure led to Gillman absconding. Failing that, Gillman requested
that the court make specific findings of fact about his arguments at the probation
violation hearing regarding whether the officers had failed in their mandatory
duties and whether the term “absconding” as contained in 501 Kentucky
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Administrative Regulations (KAR) 6:250 § 2(2)(b)1. was unconstitutionally void
for vagueness. The circuit court issued an order denying this motion on October
15, 2020. This appeal followed.
ANALYSIS
As a preliminary matter, the Commonwealth contends that Gillman
waived his right to appeal the circuit court’s order revoking his probation because
he failed to request in his motion to alter, amend, or vacate certain findings from
the court for the errors he now claims. Specifically, the Commonwealth argues
that Gillman should have explicitly requested from the circuit court a finding of
fact that Gillman “constitute[d] a significant risk to prior victims of the supervised
individual or the community at large” as required by Kentucky Revised Statutes
(KRS) 439.3106(1).
However, the Commonwealth’s argument fails to acknowledge that
the circuit court was under a statutory duty to make such a finding as a prerequisite
for revoking Gillman’s probation. Indeed, the Kentucky Supreme Court has
emphasized that the duties imposed by KRS 439.3106(1) are mandatory in that the
trial court is required to make a specific finding of fact that the probationer’s
failure to abide by a condition of supervision constitutes a significant risk to prior
victims or the community. Commonwealth v. Andrews, 448 S.W.3d 773, 781 (Ky.
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2014). Thus, any failure on Gillman’s behalf to request specific findings of fact is
not a bar to our review.
We next turn to the applicable standard of review in this case. We
review a trial court’s revocation decision for abuse of discretion. Id. 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).
While a trial court has discretion in probation revocation matters, it
must exercise its discretion “consistent with statutory criteria.” Andrews, 448
S.W.3d at 780. Specifically, before revoking an individual’s 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[.]”
Multiple Kentucky cases indicate that a trial court need not
perfunctorily recite the foregoing statutory language to meet the requirements of
KRS 439.3106. For example, in McClure v. Commonwealth, a panel of this Court
found that, where the record made it clear that the trial court had considered the
gravity of the defendant’s actions and dangers posed by his addiction, then a trial
court’s finding that the defendant was a “danger to [the] public” met the statutory
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requirement regarding a finding that the defendant was a significant risk to the
victim or the community. 457 S.W.3d 728, 733 (Ky. App. 2015).
Similarly, the Kentucky Supreme Court has stated that “perfunctorily
reciting the statutory language in KRS 439.3106 is not enough. Rather, there must
be proof in the record established by a preponderance of the evidence that a
defendant violated the terms of his release and the statutory criteria for revocation
has been met.” Commonwealth v. Gilmore, 587 S.W.3d 627, 630 (Ky. 2019)
(internal quotation marks and citation omitted). Thus, even though:
[t]he statute requires a trial court to consider whether a
probationer’s failure to abide by a condition poses a
significant risk to prior victims or the community at
large. Neither KRS 439.3106 []or Andrews require
anything more than a finding to this effect supported by
the evidence of record.
McClure, 457 S.W.3d at 733 (emphasis added) (internal quotation marks and
citation omitted).
In this case, the circuit court stated the following in its written order:
[h]aving considered all the evidence in this case, the
Court concludes that the Defendant cannot be properly
supervised in the community at large and that he is a
significant risk to reoffend, thereby creating a risk to the
public as a whole.
(Emphasis added.) We find the foregoing language indicates that the circuit court
considered the required factors under KRS 439.3106(1). Indeed, this language is
similar to that in McClure, where a panel of this Court ruled that a circuit court’s
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finding that a defendant was a “danger to [the] public” met the requirement that the
trial court finds that the defendant was a significant risk to the victim or the
community. 457 S.W.3d at 733.
Moreover, we find that the foregoing finding was supported by the
evidence of record. The circuit court noted that Gillman had been charged with a
new offense in 2019 which he failed to report to his probation officer; that Gillman
had failed to cooperate with all efforts to get him to report to his probation officer
between January 11, 2019, and January 16, 2019; that he had previously tested
positive for Oxycodone and signed a form admitting to its use; and that he had
been charged with felony theft in 2017 after being placed on probation.
The court also noted that testimony during the hearing from Gillman’s
sister indicated that he had never lived at the address of 172 Gilliam Branch Road,
which was the only address that he had provided to his probation officers. Further,
while the court acknowledged that Gillman’s mother was ill during a portion of the
time in question and that Gillman was her only caretaker, it also discussed
Gillman’s risk levels in his pretrial services report and his prior criminal history,
including two convictions for felony escape. Additionally, the court noted that
Gillman had absconded from supervision for seventeen months after the bench
warrant was issued in connection with the motion to revoke his probation. While
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Gillman’s mother’s illness may have accounted for two months of Gillman’s
absconding from supervision, it does not account for the other fifteen months.
Here, the record shows that the circuit court considered the factors in
the statute and that there was sufficient evidence to support the court’s findings of
fact. Thus, the circuit court properly exercised its discretion consistent with KRS
439.3106(1) and Andrews, and no abuse of discretion occurred.
Gillman next argues that the circuit court erred in failing to make
findings regarding whether the probation officers did not perform their mandatory
duty under KRS 439.480(3) and whether such alleged failure contributed to
Gillman’s absconding from supervision. KRS 439.480(3) states that “[p]robation
and parole officers shall . . . [k]eep informed concerning the conduct and
conditions of each person under their supervision and use all suitable methods to
aid and encourage them to bring about improvement in their conduct and
condition[.]”
Specifically, Gillman argues that, because his probation officer did
not know that he was caring for his terminally ill mother during a portion of the
time that he was absconding from supervision, the probation officer failed to
follow his mandatory duties under the statute by not knowing Gillman’s condition.
We disagree with this argument because, as previously discussed, Gillman’s
caretaking role only accounted for approximately two to three months of his
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overall seventeen-month hiatus from supervision. The ultimate responsibility to
comply with the requirements and conditions of his or her probation remains with
the probationer. Indeed, the best way for Gillman’s probation officer to know
about the circumstances surrounding Gillman’s mother’s illness and any
difficulties that the situation was causing him would be for Gillman himself to tell
his probation officer. No evidence exists in the record to show that this occurred.
The circuit court fulfilled its legal obligation by making the findings of fact
required under KRS 439.3106 and such findings were supported by sufficient
evidence of record. Thus, we see no abuse of discretion.
Finally, Gillman argues that the circuit court erred in not making
findings of fact regarding his argument that the definition of “absconding” in 501
KAR 6:250 § 2(2)(b)1. is unconstitutionally overbroad and vague. However, we
agree with the Commonwealth that we may not review this issue. A separate panel
of this Court has stated that “before this Court may address a challenge to the
constitutionality of a statute or regulation . . . the Attorney General must be
notified.” Homestead Nursing Home v. Parker, 86 S.W.3d 424, 425 n.1 (Ky. App.
1999). Further, the Kentucky Supreme Court has stated that it is “the duty of the
trial court to refrain from entry of judgment until the notice has been given.”
Maney v. Mary Chiles Hosp., 785 S.W.2d 480, 482 (Ky. 1990).
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In this case, Gillman gave no notice to the Attorney General of
Gillman’s intent to challenge the constitutionality of the definition of “absconding”
contained in the regulation, and thus the circuit court would have been in error to
make any findings in that regard. We find no error.
CONCLUSION
For the foregoing reasons, the probation revocation order entered by
the Martin Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Ryan D. Mosley Daniel Cameron
Prestonsburg, Kentucky Attorney General of Kentucky
Jenny L. Sanders
Assistant Attorney General
Frankfort, Kentucky
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