RENDERED: JANUARY 14, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0338-MR
CARL CHURCHILL APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE MARY M. SHAW, JUDGE
ACTION NO. 18-CR-001210
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; CETRULO AND McNEILL, JUDGES.
CETRULO, JUDGE: Appellant Carl Churchill (“Churchill”) appeals the order of
the Jefferson Circuit Court revoking his probation, entered on February 25, 2021.
Because it appears that the circuit court failed to make the statutory findings
required by Kentucky Revised Statutes (“KRS”) 439.3106, we VACATE and
REMAND.
BACKGROUND
In August 2019, Churchill entered a guilty plea of possession of a
firearm by a convicted felon and second-degree fleeing or evading police. He was
sentenced to three years’ incarceration, probated for five years. Churchill’s
probation agreement included a condition that he “[r]emain on good behavior and
refrain from further violation of the law in any respect.”
In August 2020, Churchill was charged with fourth-degree assault and
third-degree terroristic threatening. Subsequently, the Commonwealth filed a
motion to revoke Churchill’s probation. The motion argued that the new
misdemeanor arrest violated the terms of Churchill’s probation.
In January 2021, the Jefferson Circuit Court held a probation
revocation hearing. The Commonwealth called Louisville Metro Police Detective
Lauren Carby (“Carby”) to testify. Carby was not the arresting officer but was
later assigned as the investigating officer. Based on the arrest warrant narrative
and the follow-up interview with the alleged victim, Carby testified to the
allegations that lead to Churchill’s arrest. Churchill and his then-girlfriend, the
victim, had a verbal argument that turned physical. The victim, who was 10-weeks
pregnant at the time, was on her porch when Churchill ran at her, punched her in
the face, pushed her back, and she hit her head on concrete. Churchill stomped her
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on her head and began kicking her stomach, saying he would kill the baby. 1
Churchill’s brother pulled him off the victim and they fled the scene.
On cross-examination, Churchill asked if Carby had seen any medical
records; she answered that she had not. He asked if she had looked at the victim’s
text messages or online activity; she answered that she had not. He asked Carby if
she had spoken with Churchill or if she knew if the victim had any mental health
issues; she answered that she had not. Carby stated that the investigation was
ongoing and that a lot was unknown, but she had seen pictures of the victim’s face
after the attack.
After Carby testified, the Judge stated “there’s obviously been a
violation” but she was still deciding between a revocation or a sanction. Churchill
pointed out that there was little investigation or corroboration. The Judge
reiterated that she already found there was a violation, but she wanted to postpone
her final order until the assault misdemeanor case was concluded in district court.
In February 2021, all parties returned telephonically to conclude the
probation revocation hearing. Unfortunately, the record is difficult to understand
and is dominated by an irrelevant conversation between a clerk and sheriff. Legal
counsel for both sides can be heard in part, but very little of the Judge’s words can
be heard or understood. A few days after this telephonic hearing, the court issued
1
She later lost the baby and blamed this attack for the loss.
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an order revoking2 Churchill’s probation “[f]or reasons stated on the record[.]”
This appeal followed.
STANDARD OF REVIEW
We review probation revocation orders 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, 881 (Ky. 2009)). We will reverse only
if we find “the cicuit judge’s decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999). But, if a party fails to inform the appellate court of where in
the record his issue is preserved, this Court can treat the issue as unpreserved and
review only for palpable error. Ford v. Commonwealth, 628 S.W.3d 147, 155 (Ky.
2021). Palpable errors are those “plain and obvious” errors that affect the
substantial rights of a party. Gray v. Commonwealth, 479 S.W.3d 94, 96 (Ky.
App. 2015). For a probation revocation, the circuit court’s failure to make the
mandatory statutory findings constitutes palpable error. Walker v. Commonwealth,
588 S.W.3d 453, 457-59 (Ky. App. 2019); see also Burnett v. Commonwealth, 538
S.W.3d 322, 324 (Ky. App. 2017). The errors in this case are unpreserved, but we
2
The order does not state that probation has been “revoked,” but the order does find a violation
and remands Churchill into custody.
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will decide on the merits and review for palpable error under Kentucky Rule of
Criminal Procedure (“RCr”) 10.26.
ANALYSIS
A circuit court has “broad discretion in overseeing a defendant’s
probation, including any decision to revoke[.]” Andrews, 448 S.W.3d at 777.
Historically, a circuit court could remove a person from probation if there was
evidence that the probationer failed to comply with the conditions of probation or
was not making satisfactory progress toward the completion of the provisions of
the probation agreement. Lucas v. Commonwealth, 258 S.W.3d 806, 807-08 (Ky.
App. 2008); KRS 533.020(1). The Kentucky General Assembly qualified the
circuit court’s discretion when it enacted the Public Safety and Offender
Accountability Act, commonly referred to as House Bill 463, in 2011. Andrews,
448 S.W.3d at 776 (citing 2011 Ky. Acts 4). With that package and the creation of
KRS 439.3106, the General Assembly provided new criteria for voiding probation.
KRS 439.3106(1), the statute at issue, provides that supervised
individuals, such as Churchill, 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
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(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.
Our Kentucky Supreme Court held “KRS 439.3106 must be
considered [by the circuit court] before probation may be revoked.” Andrews,
448 S.W.3d at 778-79. No longer would evidence to support at least one probation
violation be sufficient to revoke probation. Andrews, 448 S.W.3d at 780. “By
requiring trial courts to determine that a probationer is a danger to prior victims or
the community at large and that he/she cannot be appropriately managed in the
community before revoking probation, the legislature furthers the objectives of the
graduated sanctions schema to ensure that probationers are not being incarcerated
for minor probation violations.” Id. at 779. The “new state of the law” does not
strip circuit courts of the discretion to revoke probation “provided that discretion is
exercised consistent with statutory criteria.” Id. at 780.
That means, to revoke probation, the circuit court must specifically
find: (1) that the probationer violated a condition of probation; and (2) that the
violation constitutes a significant risk to prior victims or to the community at large
and that the probationer cannot be appropriately managed in the community; or (3)
the appropriateness of lesser sanctions. KRS 439.3106; Andrews, 448 S.W.3d at
777-79.
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In relation to the first prong, Churchill argues that revoking his
probation “on so little evidence . . . was arbitrary, unreasonable and unfair.”
Churchill argued that Carby had not obtained medical records, phone records, text
messages, or any other supporting documentation of the alleged assault, and
therefore the Commonwealth had not met its burden.
The Commonwealth disagrees, arguing their burden is only to show
by the preponderance of the evidence that a violation has occurred. Carby
personally interviewed the witness and the allegations were corroborated in the
arrest warrant and the violation-of-supervision report.
While the burden is on the Commonwealth, probation revocations
require less proof than criminal trials. Gagnon v. Scarpelli, 411 U.S. 778, 786-87,
93 S. Ct. 1756, 1762, 36 L. Ed. 2d 656 (1973). Hearsay evidence is admissible and
circuit courts are not required to delay probation revocations until resolution of
criminal charges that arise during the probationary period. Barker v.
Commonwealth, 379 S.W.3d 116, 119, 130 (Ky. 2012). In fact, new charges may
form the basis for revocation proceedings, and a conviction on those charges is not
necessary in order to revoke probation. Id. at 123.
In Barker, his probation officer was the only witness called by either
side at his revocation hearing. Id. at 129-30. Barker’s probation officer’s
testimony recited the contents of a special supervision report that alerted the circuit
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court of Barker’s new charges, which consisted of four counts of fourth-degree
assault. Id. The source of the officer’s information on the assaults was (1) the
state police arrest citation and (2) a conversation between the officer and Barker’s
sister. Id. Barker challenged the absence of physical evidence to prove a violation
and that no probation violation occurred without a conviction on the new charges.
Id. at 119-20. The circuit court found, by the preponderance of the evidence, that
Barker had violated and revoked his probation. Id. This Court affirmed; the
Kentucky Supreme Court affirmed as well.
Similarly, Churchill’s revocation hearing included testimony by both
the investigating officer and probation officer. The investigating detective had
interviewed the victim, seen photos of her injuries, and repeated information
included in the arrest warrant for a violent assault. Because the analysis was
consistent with Barker, we find no plain or obvious errors. Therefore, we find no
palpable error in the circuit court’s determination that Churchill violated the terms
of his probation.
Next, we look to the second and third prongs, but herein lies the
problem. Andrews makes clear that in reviewing the sufficiency of a finding’s
compliance with KRS 439.3106(1), appellate courts may look to a combination of
both written and oral findings concerning the factors set out in KRS 439.3106(1).
Our task in this case is to determine whether the circuit court’s oral findings and
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written order enable us to determine the basis for its decision to revoke.
Commonwealth v. Alleman, 306 S.W.3d 484, 487 (Ky. 2010).
Churchill argues “[t]he record does not indicate that the court properly
considered and made sufficient factual findings that Mr. Churchill . . . posed a
significant risk to the victim or community at large.” The Commonwealth argues
that the lack of findings regarding Churchill’s risk is not palpable error. We
disagree with the Commonwealth. As previously stated, this Court has
consistently held that the circuit court’s failure to make the mandatory statutory
findings constitutes palpable error. Walker, 588 S.W.3d at 457-59; Burnett, 538
S.W.3d at 324. The Commonwealth attempts to distinguish these cases because
the probationers in Walker and Burnett were not revoked on the basis of a new
violent offense, but we find this argument unpersuasive. “[W]e must . . . conclude
that the circuit court’s failure to make the statutory findings required by KRS
439.3106 constitutes palpable error under [RCr] 10.26.” Walker, 588 S.W.3d at
458. See also Lainhart v. Commonwealth, 534 S.W.3d 234 (Ky. App. 2017).
Churchill argues “[t]here was never a discussion of lesser sanctions
short of revocation.” Conversely, the Commonwealth argues the circuit court did
make oral references to sanctions. At the January hearing, the circuit court stated it
found a violation, but was still deciding “what kind of sanction” was warranted.
Then a few minutes later, the court stated it would continue the proceedings “for a
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sanction or revocation, whichever I decide.” And again, the court stated it would
continue the case for “some kind of sanction or revocation.” The written order
revoking probation is quite limited, and the oral references implied the court was
aware sanctions were an option, but no express findings are in the available record.
If those findings were made during the February hearing, we do not know. From
what is intelligible, the circuit court did not state on the record what other sanctions
were considered, why those sanctions were deemed insufficient, nor whether the
court believed Churchill would be at risk of future criminal behavior.
CONCLUSION
Accordingly, we must follow Walker and hold that the circuit court
did not make any clear findings, in either its written or oral rulings, related to
whether Churchill constituted a significant risk to the prior victim or the
community at large; that he could not be appropriately managed in the community;
or that lessor sanctions were considered and deemed inappropriate, pursuant to
KRS 439.3106(1). Therefore, we hold that under palpable error standard of
review, the circuit court’s decisions must be vacated for full consideration of the
statutory criteria and the entry of appropriate findings, as held in Andrews.
For the foregoing reasons, the order of the Jefferson Circuit Court
revoking Churchill’s probation is VACATED, and this matter is REMANDED for
further proceedings in accordance with this Opinion.
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ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Tricia Lister Daniel Cameron
Louisville, Kentucky Attorney General of Kentucky
Mark D. Barry
Assistant Attorney General
Frankfort, Kentucky
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