RENDERED: OCTOBER 22, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0961-MR
ALVIN D. MILLER APPELLANT
v. APPEAL FROM WASHINGTON CIRCUIT COURT
HONORABLE ALLAN RAY BERTRAM, JUDGE
ACTION NOS. 15-CR-00008 AND 15-CR-00009
COMMONWEALTH OF KENTUCKY APPELLEE
AND
NO. 2020-CA-0963-MR
ALVIN D. MILLER APPELLANT
v. APPEAL FROM MARION CIRCUIT COURT
HONORABLE ALLAN RAY BERTRAM, JUDGE
ACTION NOS. 15-CR-00064, 15-CR-00065, 15-CR-00155, 15-CR-00156, 15-
CR-00157, 15-CR-00158, 15-CR-00159, 15-CR-00160, 15-CR-00161, AND
15-CR-00162
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, CETRULO, AND JONES, JUDGES.
JONES, JUDGE: Alvin D. Miller appeals from the Washington and Marion
Circuit Courts’ judgments and sentences of imprisonment, following the courts’
orders revoking his probation. After reviewing the record, and being otherwise
sufficiently advised, we affirm.
I. BACKGROUND
The facts of this case arise out of a series of guilty pleas Miller
negotiated with the Commonwealth in 2015 and 2016 for offenses he committed in
Washington and Marion Counties. On August 19, 2015, Miller pleaded guilty to
receiving stolen property,1 second-degree fleeing and evading,2 and first-degree
wanton endangerment3 in Washington Circuit Nos. 15-CR-00008 and 15-CR-
00009. The trial court accepted Miller’s guilty pleas and subsequently sentenced
him to five years’ imprisonment probated for five years, with no restitution
imposed.
1
Kentucky Revised Statute (KRS) 514.110(3)(b), a Class D felony.
2
KRS 520.100(1)(a), a Class A misdemeanor.
3
KRS 508.060, a Class D felony.
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That same day, Miller also pleaded guilty to theft by unlawful taking
of a firearm4 and possession of a firearm by a convicted felon5 in Marion Circuit
Nos. 15-CR-00064 and 15-CR-00065. The trial court accepted the pleas and
sentenced Miller to five years’ imprisonment probated for five years, with no
restitution imposed. The trial court ordered this sentence to run concurrently with
the five-year sentence imposed by the Washington Circuit Court (15-CR-00008
and 15-CR-00009).
In 2016, Miller was indicted for additional offenses in Marion County
which resulted in another series of negotiated guilty pleas. On July 14, 2016,
Miller pleaded guilty to two counts of theft by unlawful taking of a firearm, two
counts of possession of a firearm by a convicted felon, and third-degree burglary6
in Marion Circuit Nos. 15-CR-00155, 15-CR-00156, 15-CR-00157, and 15-CR-
00158. The trial court accepted the pleas and sentenced Miller to another five-year
term of imprisonment probated for five years which was to run concurrently with
his sentence in Marion Circuit Nos. 15-CR-00064 and 15-CR-00065. The trial
court also ordered Miller to pay restitution of $1,000.00 and a fee of $50.00.
4
KRS 514.030, a Class D felony.
5
KRS 527.040(2)(a), a Class D felony.
6
KRS 511.040, a Class D felony.
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Finally, on July 14, 2016, Miller also pleaded guilty to two counts of
theft by unlawful taking, two counts of third-degree burglary, and possession of a
firearm by a convicted felon in Marion Circuit Nos. 15-CR-00159, 15-CR-00160,
15-CR-00161, and 15-CR-00162. Once again, the trial court accepted Miller’s
pleas and sentenced him to another five-year term of imprisonment probated for
five years. The trial court ordered this sentence to run concurrently with Marion
Circuit Nos. 15-CR-00064 and 15-CR-00065, but consecutively with his sentence
in Marion Circuit Nos. 15-CR-00155, 15-CR-00156, 15-CR-00157, and 15-CR-
00158. The trial court did not impose restitution for these offenses.
After successfully serving his probation for a few years, Miller
violated probation when he was arrested for a new felony offense in January 2019.
The Commonwealth moved to revoke probation in all of Miller’s cases. In a
hearing held in open court on April 11, 2019, Miller accepted the
Commonwealth’s plea for an alternative sanction in which he would serve three
hundred sixty-five days of incarceration. Unfortunately, the written record is not
explicit about Miller’s plea agreement for this sanction, specifically his
probationary status following his release. The handwritten portion of the trial
court’s one-page order states: “Alternate sentence – state time to serve 365 days
state time beginning 2/14/19 . . . review restitution owed on 5/21/2020 at 1:00 pm.”
(Record (R.) for Marion Circuit No. 15-CR-00064 at 74.)
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The video record of the April 11th hearing is slightly more helpful in
discerning the full terms of Miller’s plea arrangement. Miller’s counsel explains to
him that, per the agreement with the Commonwealth, he would serve three
hundred sixty-five days and then “he would be done.” However, in further
discussion with the trial court, counsel admitted Miller would be required to pay
outstanding restitution first, and that the probation term would be “hanging over
his head” until this restitution was paid. Counsel then told Miller that he would not
have to report to probation and parole after the term of incarceration, but he would
have to pay restitution, and he could still be found in violation of his probation
until he paid the restitution in full.
The trial court accepted counsel’s interpretation of the plea
arrangement, noting Miller owed $1,000.00 restitution in one of his probated cases,
before stating as follows: “So when he is finished, he will be released from
probation and parole. He will just need to pay restitution and then be released
from probation.” The trial court set the review date in May 2020 because it wished
to give Miller ninety days, starting from his release in February 2020, to gain
employment and make the required restitution payments.
Miller served the three hundred sixty-five days and was released from
custody sometime in February of 2020. However, before the restitution review
date arrived, Miller was arrested in connection with a shooting that occurred in late
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April of 2020. Ultimately, Miller was charged with first-degree assault. The
Commonwealth alleged that Miller shot and injured a man who was sitting on his
porch and then fled into the woods. Following Miller’s arrest on the new charge,
the Commonwealth once again moved to revoke Miller’s probation. In a
revocation hearing held on May 21, 2020, the Commonwealth presented testimony
from the investigating officer regarding Miller’s involvement in the shooting, as
well as testimony from a probation and parole officer who was familiar with
Miller’s probation history. The probation officer testified that Miller had served
his alternative prison sanction and was released on February 4, 2020. The
probation officer also testified that Miller had committed about eight violations
since being granted probation in October 2015, and that Miller was no longer able
to be supervised because probation and parole had exhausted all options in his
case. Miller’s counsel argued for leniency and pointed out that Miller was entitled
to a presumption of innocence because he had not yet been convicted on this new
charge.
The trial court discussed Miller’s pending charge and found that the
Commonwealth presented enough to show Miller committed the charged offense
by a preponderance of the evidence. The trial court explained that the evidence
showed that it was more likely than not that Miller, a convicted felon, was in
possession of a handgun. The trial court noted that Miller admitted being present
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at the home of the shooting victim and a wrecked vehicle belonging to Miller’s
mother was found near the location of the shooting. Furthermore, there was
firearm ammunition matching that used in the shooting found near the wrecked
vehicle, and the victim identified Miller as the shooter in a photographic lineup.
Based on these factors, the trial court found there was sufficient evidence of a
violation and revoked Miller’s probation in all of his outstanding cases. On May
21, 2020, in its form order revoking probation, the trial court indicated it had
considered the requirements of KRS 439.3106 and found that Miller is a
“significant risk to . . . [the] community at large” and “cannot be appropriately
managed in community [sic], shown by new charges.” (R. for Marion Circuit No.
15-CR-00064 at 84.)
Miller’s counsel thereafter filed a CR7 59.05 motion to alter, amend,
or vacate the revocation order, arguing for the first time that Miller was no longer
on probation under the terms of the plea agreement reached with the
Commonwealth during the April 11, 2019 hearing. Miller’s counsel admitted he
had only watched the April 2019 hearing video after the present revocation hearing
had taken place. Based on the video, counsel now asserted Miller’s completion of
the alternative prison-time sanction meant he had completed probation. In a
7
Kentucky Rules of Civil Procedure.
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hearing on the CR 59.05 motion, the trial court8 disagreed with Miller’s
interpretation, finding that the terms of the agreement required Miller to remain on
probation until the restitution was paid. The trial court then denied the CR 59.05
motion. This appeal followed.
II. ANALYSIS
Miller presents two arguments on appeal. First, he contends the trial
court erred when it failed to make sufficient findings to revoke his probation under
KRS 439.3106. “A decision to revoke probation is reviewed for an abuse of
discretion.” Commonwealth v. Andrews, 448 S.W.3d 773, 780 (Ky. 2014) (citing
Commonwealth v. Lopez, 292 S.W.3d 878 (Ky. 2009)). “Under our abuse of
discretion standard of review, we will disturb a ruling only upon finding that ‘the
trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.’” Id. (quoting Commonwealth v. English, 993 S.W.2d 941, 945
(Ky. 1999)). “Put another way, 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.” McClure v.
8
The trial court judge during most of these proceedings, up through the final revocation hearing,
was the Honorable Allan Ray Bertram. Judge Bertram was succeeded by the Honorable Kaelin
G. Reed, who ruled on Miller’s CR 59.05 motion. Our caption reflects Judge Bertram and not
Judge Reed because, properly speaking, this appeal is from Judge Bertram’s revocation order.
“Orders denying CR 59.05 relief are interlocutory, i.e., non-final and non-appealable[.]”
Hoffman v. Hoffman, 500 S.W.3d 234, 236 (Ky. App. 2016) (internal quotation marks omitted).
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Commonwealth, 457 S.W.3d 728, 730 (Ky. App. 2015) (citing Miller v. Eldridge,
146 S.W.3d 909, 915 n.11 (Ky. 2004)).
Miller specifically argues the trial court “failed to cite evidence that
[he] constituted a significant risk to the community at large.” (Appellant’s Brief at
10.) A trial court traditionally has “broad discretion in overseeing a defendant’s
probation, including any decision to revoke[.]” Andrews, 448 S.W.3d at 777. This
traditional deference was somewhat qualified when, “[i]n 2011, the Kentucky
General Assembly enacted the Public Safety and Offender Accountability Act,
commonly referred to as House Bill 463 (HB 463).” Id. at 776 (internal quotation
marks omitted). Included as part of this legislation, KRS 439.3106(1) provides as
follows:
Supervised individuals shall be subject to . . . [v]iolation
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[.]
A trial court must make both statutory findings, regarding risk and the inability to
be managed in the community, before revoking probation. “[W]hile trial courts
retain discretion in revoking probation, consideration of the criteria provided in
KRS 439.3106 is a mandatory prerequisite to revocation.” Richardson v.
Commonwealth, 494 S.W.3d 495, 498 (Ky. App. 2015). The essential questions
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are “[w]hether the evidence of record supported the requisite findings that [the
appellant] was a significant risk to, and unmanageable within, his community; and
whether the trial court, in fact, made those requisite findings.” McClure, 457
S.W.3d at 732.
The trial court spent a significant amount of time in the revocation
hearing going over the evidence showing Miller was likely involved in a shooting
leading to a first-degree assault charge. In addition, in its form order revoking
probation, the trial court stated it explicitly considered the criteria under KRS
439.3106 before finding Miller posed a significant risk to the community at large
and could not be appropriately managed in the community. In his brief, Miller
asserts the trial court erred when it did not undertake any analysis to explain its
findings, but he offers no legal support for this assertion. Indeed,
[KRS 439.3106] 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.” Andrews[, 448 S.W.3d] at 776. Neither KRS
439.3106 nor Andrews require anything more than a
finding to this effect supported by the evidence of record.
The trial court complied with this requirement and it
owed [the appellant] no further explanation.
McClure, 457 S.W.3d at 733. When reviewing the adequacy of the trial court’s
findings under KRS 439.3106, “we look to both the written and oral findings in
conjunction with one another and not separately in a vacuum.” Commonwealth v.
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Gilmore, 587 S.W.3d 627, 630 (Ky. 2019). Ultimately, our task is to determine
whether the evidence of record supports the trial court’s conclusions. Id.
The evidence of record in this case was clear that probation and parole
had offered assistance to Miller over the years, but he was unable to conform his
conduct to the law. He had numerous positive drug screens, possessed firearms
although he was prohibited by law from doing so, and incurred new charges. The
trial court carefully considered the evidence related to the newest charge and found
it sufficient to show that Miller possessed a firearm and a substantial amount of
ammunition and was involved in shooting someone with a firearm. Miller’s
lengthy criminal history shows that he is not able to be managed effectively in the
community. Likewise, his propensity to continue possessing and using firearms
shows that he posed a risk to the community at large. For these reasons, we
discern no error regarding the sufficiency of the evidence supporting the trial
court’s findings.
For his second issue, Miller contends the trial court erroneously
revoked his probation in those cases for which he did not owe restitution, arguing
he was no longer on probation for those cases following release from his
alternative sanction. However, Miller admits he did not raise this issue until his
CR 59.05 motion. “A party cannot invoke [CR 59.05] to raise arguments and
introduce evidence that could and should have been presented during the
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proceedings before the entry of the judgment.” Givens v. Commonwealth, 359
S.W.3d 454, 466 (Ky. App. 2011) (citations omitted). See also Gullion v. Gullion,
163 S.W.3d 888, 893 (Ky. 2005); Short v. City of Olive Hill, 414 S.W.3d 433, 441
n.7 (Ky. App. 2013). We may affirm for this reason alone.
Furthermore, the best evidence in the record regarding Miller’s
alternative sanction agreement with the Commonwealth is the recording of the
April 11, 2019 revocation hearing. In this hearing, Miller appears to acquiesce to
an arrangement whereby he would remain on probation for all of his offenses until
he paid restitution. As pointed out by the trial court, during the prior hearing,
Miller’s counsel explained to him in open court that while he would not have to
check in with probation and parole, his probation on all his other sentences could
be revoked until he paid his restitution. Miller acknowledged that he understood
the agreement before the trial court entered an order. Miller did not appeal from
the order with respect to whether it was proper given that restitution was only
ordered in some of his other cases. Miller’s failure to challenge the prior
agreement at the time of its entry precludes him from doing so now.
Commonwealth v. Jennings, 613 S.W.3d 14, 17 (Ky. 2020) (citations omitted) (“A
probationer is required to challenge the offending provision at the time it is
imposed.”).
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III. CONCLUSION
For the foregoing reasons, we affirm the judgments revoking Miller’s
probation.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Steven Nathan Goens Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Kristin L. Conder
Assistant Attorney General
Frankfort, Kentucky
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