RENDERED: DECEMBER 22, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1630-MR
CARLOS L. MOORE APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
v. HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 16-CR-00834
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: ACREE, COMBS, AND MAZE, JUDGES.
ACREE, JUDGE: Carlos L. Moore appeals the Kenton Circuit Court’s December
8, 2020 amended order revoking his probation. He contends the order was entered
erroneously because he does not pose a threat to the community at large by merely
being a convicted felon in possession of a firearm. Finding no error, we affirm.
BACKGROUND
In 2017, the circuit court issued a final judgment sentencing Moore to
ten-years’ imprisonment for assault and criminal mischief, probated for a period of
five years. A year later, while on probation, Moore was arrested. The
circumstances surrounding his arrest involved a domestic disturbance call. An
officer received information there were three individuals present during a domestic
disturbance – Moore being one of them. Moore left the residence in a silver
automobile. The officer observed a vehicle fitting the description in the immediate
vicinity of the residence and initiated a stop. Moore admitted to being at the
residence and consented to a search of his vehicle. During the search, a gun was
recovered resulting in Moore being charged with carrying a concealed deadly
weapon and possession of a firearm by a convicted felon. Subsequently, the
Commonwealth moved to revoke his probation.
Later that year, a jury trial was held, and Moore was convicted on the
handgun charge. Final judgment was entered in 2019 and Moore was sentenced to
seven years in the penitentiary. The circuit court also issued an order revoking
Moore’s probation.
Ultimately, Moore appealed his conviction for the handgun charge
and the order revoking probation, which were consolidated for appellate purposes.
Another panel of this Court affirmed his conviction but vacated the order revoking
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Moore’s probation directing the circuit court to conduct a revocation hearing and
make express findings under KRS1 439.3106. See Moore v. Commonwealth, Nos.
2019-CA-000253-MR and 2019-CA-000288-MR, 2020 WL 4512552 (Ky. App.
Jul. 10, 2020).
On remand, the circuit court held a hearing and reviewed Moore’s
lengthy criminal history, which included second-degree assault, possession of a
handgun by a convicted felon, and numerous misdemeanor convictions.
Accordingly, the circuit court found Moore presented a serious threat to the
community and could not be appropriately managed in the community because he
was a convicted felon, carrying a gun, with a lengthy criminal history. Therefore,
the circuit court revoked his probation.
This appeal followed.
STANDARD OF REVIEW
We review a trial court’s decision to revoke probation for an abuse of
discretion. See Southwood v. Commonwealth, 372 S.W.3d 882, 884 (Ky. App.
2012). The trial court abuses its discretion only when its decision is “arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Id. (citing Clark
v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007)). Put another way, we will not
hold that a trial court abused its discretion unless its decision cannot be located
1
Kentucky Revised Statutes.
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within the range of permissible decisions allowed by a correct application of the
facts to the law. Miller v. Eldridge, 146 S.W.3d 909, 915 n.11 (Ky. 2004).
ANALYSIS
KRS 439.3106(1) states that defendants on probation 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.
On appeal, Moore alleges the circuit court erred by failing to explain
how he posed a significant risk to the community.
The issue of proper revocation was addressed by the Kentucky
Supreme Court for the first time in Commonwealth v. Andrews, 448 S.W.3d 773
(Ky. 2014). In Andrews, the Supreme Court held that KRS 439.3106 required trial
courts “to consider whether a probationer’s failure to abide by a condition of
supervision constitute[d] a significant risk to prior victims or the community at
large, and whether the probationer cannot be managed in the community[.]” Id. at
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780. These findings “allow[ ] the trial court to conclude with some certainty that
the imposition of some other accountability measure would be fruitless[.]” Id. at
779. However, the Supreme Court stated that “[w]hile HB 4632 reflects a new
emphasis in imposing and managing probation, it does not upend the trial court’s
discretion in matters of probation revocation, provided that discretion is exercised
consistent with statutory criteria.” Id. at 780.
Moore claims he posed no risk to anyone in the community by being
in possession of a firearm. However, “our reading of KRS 439.3106(1) refutes
this. Though the statute clearly requires entry of a finding of ‘significant risk,’
surely it cannot be further read to require a probationer to commit some heinous
act before he can be found to be a risk to someone other than himself.” McClure v.
Commonwealth, 457 S.W.3d 728, 733 (Ky. App. 2015). “We sincerely doubt the
General Assembly intended to set so high, and potentially injurious, an evidentiary
burden.” Id.
Moore argues that if his possession of a handgun makes him a
significant risk to the community, “then it made all kinds of court participants
significant risks to the community, including bailiffs, police officers, and probation
officers.” (Appellant’s brief, pp. 4-5.) Moore misses the point by comparing
himself to these individuals. A person in lawful possession of a handgun does not,
2
2011 Kentucky Laws Ch.2 HB 463.
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without more, pose an unmanageable threat to the community. It is quite a
different matter when a person previously convicted of violent criminal conduct is
granted the privilege of returning to society on his promise of good behavior, only
to knowingly violate a condition of that privilege by unlawfully acquiring,
carrying, and concealing a firearm. All in all, given Moore’s proven proclivity for
violence – the reason for the handgun prohibition in the first place – and his
decision to violate his probation by arming himself, we cannot say that the circuit
court has committed reversible error by revoking Moore’s probation. His
possession of a handgun, in and of itself, was a class C felony. KRS 527.040. The
circuit court did not need to wait to revoke probation until he used the handgun in
the commission of another crime. McClure, 457 S.W.3d 733.
The statute requires a trial court to consider “whether
a probationer’s failure to abide by a condition . . . consitutes a significant risk to
prior victims or the community at large.” Andrews, 448 S.W.3d at 780. Neither
KRS 439.3106 nor Andrews requires anything more than such a finding supported
by the evidence of record. The circuit court complied with this requirement.
CONCLUSION
Based on the foregoing, the Kenton Circuit Court’s December 8, 2020
amended order revoking probation is affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Steven J. Buck Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
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