RENDERED: APRIL 1, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0703-MR
NATHAN BENTLEY APPELLANT
APPEAL FROM LETCHER CIRCUIT COURT
v. HONORABLE JAMES W. CRAFT, II, JUDGE
ACTION NO. 09-CR-00203
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
VACATING
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BEFORE: GOODWINE, MAZE, AND McNEILL, JUDGES.
GOODWINE, JUDGE: Nathan Bentley (“Bentley”) appeals the Letcher Circuit
Court’s order revoking his probation. After careful review, finding error, we
VACATE the Letcher Circuit Court’s April 29, 2021 order.
In 2009, Bentley was indicted on charges of second-degree burglary,
kidnapping, wanton endangerment, and fourth-degree assault in No. 09-CR-00203.
In January 2011, the circuit court accepted Bentley’s guilty plea and sentenced him
to ten years probated for five years and $130 in court costs.
In July 2011, Bentley was arrested on other charges and was
subsequently indicted under three separate indictments (Nos. 11-CR-00229, 11-
CR-00230, and 12-CR-00117). On July 29, 2011, the Commonwealth moved to
revoke Bentley’s probation in No. 09-CR-00203. The circuit court set a probation
revocation hearing for September 27, 2011. The parties dispute why the hearing
did not occur at that time. The Commonwealth contends Bentley requested a
continuance to work out “a package deal.” Bentley contends nothing in the record
supports the Commonwealth’s contention. Bentley pled guilty to the three new
indictments. The Commonwealth’s Offer on a Plea of Guilty was entered on
February 27, 2013, and the Judgment and Sentence – Plea of Guilty was entered on
May 2, 2013. Bentley contends that even if his probation was tolled because he
requested a continuance to work out a “package deal,” that tolling stopped once the
“package deal” was completed, i.e., after the judgment(s) of conviction were
entered on the pleas of guilty to the new charges.
On March 29, 2021, the circuit court entered an order setting a
probation revocation hearing for April 14, 2021. Bentley filed a pro se motion to
dismiss the action and discharge or terminate his term of probation. He stated
prison authorities informed him they discovered his probation had never been
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revoked in No. 09-CR-00203, and they contacted the prosecutor. This lead to the
hearing being scheduled. The Commonwealth responded arguing Bentley
admitted to the probation violations when he entered plea agreements on the three
unrelated indictments. The Commonwealth further argued the sentence must run
consecutively to the ten years of imprisonment for the unrelated charges in the
three indictments.
On April 21, 2021, the circuit court held the probation revocation
hearing. Bentley argued under Kiser v. Commonwealth, 829 S.W.2d 432 (Ky.
App. 1992), the 90 days to revoke starts at the time the Commonwealth moved to
revoke his probation, and if probation is not revoked during that period, it must run
concurrent with the new charges. Additionally, he argued his probationary period
expired in 2016, and no order was ever entered revoking his probation before it
expired in this case or in his 2013 plea agreements. The Commonwealth argued
the probation revocation hearing was continued at Bentley’s request, so the 90-day
period was tolled. The circuit court took the matter under advisement and stated it
would review the record and enter an order accordingly.
On April 29, 2021, the circuit court entered an order revoking
Bentley’s probation. The court entered a form order and checked boxes finding
Bentley guilty of the violations alleged, and that he “has shown a complete
disregard of the conditions of his/her probation and poses a significant risk to prior
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victims or the community at large and cannot be appropriately managed in the
community. Accordingly, it would be futile to attempt other sanctions, therefore
the Defendant is REVOKED and is to serve the sentence ordered in the
Judgment.” Record (R.) at 128-129. The circuit court also checked a box finding
“Defendant shall be delivered to the custody of the Department of Corrections at
such location within this Commonwealth as Corrections shall designate.” R. at
129. This appeal followed.
On appeal, Bentley argues the circuit court erred in: (1) revoking his
probation after the probationary period had expired; (2) ordering his sentence in
this case to run consecutively with his subsequent sentences; (3) and failing to
apply KRS 439.3106(1)(a). This matter involves interpretation of statutes and the
decision to revoke Bentley’s probation. We review matters of statutory
interpretation de novo. Commonwealth v. Tapp, 497 S.W.3d 239, 241 (Ky. 2016)
(citation omitted). “The appellate standard of review of a decision to revoke a
defendant’s probation is whether the trial court abused its discretion.” Blankenship
v. Commonwealth, 494 S.W.3d 506, 508 (Ky. App. 2015) (citation omitted).
First, Bentley argues the circuit court erred in revoking his probation
after his probationary period had expired. Bentley asserts his probationary period
expired in 2016, the circuit court never extended his probation, and the order
revoking his probation was entered in 2021. KRS 533.020(4) provides in pertinent
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part: “Upon completion of the probationary period, . . . the defendant shall be
deemed finally discharged, provided no warrant issued by the court is pending
against him, and probation, probation with an alternative sentence, or conditional
discharge has not been revoked.” In Commonwealth v. Tapp, the Supreme Court
of Kentucky held:
The language of KRS 533.020(4) is clear: probation is
automatically discharged upon completion of a
probationary period unless it has been revoked or an
arrest warrant is pending. If neither condition exists, the
trial court loses jurisdiction both to revoke and to modify
the conditions of probation. A warrant remains
“pending” until the defendant is brought before the court
at which time, given probable cause to do so, the court
may extend the probationary period for a reasonable time
until a revocation hearing can be held.
497 S.W.3d at 242. Under Tapp, the circuit court lost jurisdiction to revoke
Bentley’s probation when his probationary period expired in 2016. Thus, the
circuit court erred in entering the order revoking Bentley’s probation after it had
expired. Therefore, the April 29, 2021 order is hereby VACATED.
Bentley’s No. 09-CR-00203 probation expired January 6, 2016, five
years after entry of his January 6, 2011 judgement of conviction. Bentley argues
the circuit court erred in ordering his sentence in this case to run consecutively
with his subsequent cases. The Commonwealth contends Bentley waived the 90-
day period by asking for a continuance of the September 27, 2011 probation
revocation hearing. There is no evidence of this in the record aside from the
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Commonwealth’s assertion, and the Commonwealth cites no law in support of this
contention. However, Bentley and the Commonwealth are wrong.
Although it lacked jurisdiction, the circuit court revoked Bentley’s
probation more than 90 days after the motion to revoke was filed. “KRS
533.020(1) provides that a probated sentence may be revoked ‘at any time’ prior to
the expiration or termination of the period of probation.” Sutherland v.
Commonwealth, 910 S.W.2d 235, 236 (Ky. 1995). KRS 533.040(3) “provides that
any revocation of probation (which occurs outside of the 90-day period) is to be
run concurrently with any other offense.” Sutherland, 910 S.W.2d at 237.
However, KRS 533.060 takes precedence over the 90-day requirement of KRS
533.040(3). KRS 533.060 forbids concurrent sentencing if a defendant commits
additional felonies while on probation from a previous felony. Bentley relies on
Kiser, 829 S.W.2d 432. Kiser was issued by another panel of this Court in 1992.
Since then the Kentucky Supreme Court has issued at least five opinions clarifying
the conflict between these two statutes.1
1
Brewer v. Commonwealth, 922 S.W.2d 380, 381-82 (Ky. 1996) (holding that the provision in
KRS 533.060(2), which forbids concurrent sentences for subsequent felonies, controlled over the
90-day limitation contained in KRS 533.040(3)); Commonwealth v. Love, 334 S.W.3d 92, 93
(Ky. 2011) (reaffirmed its ruling in Brewer holding that KRS 533.040(3) does not apply when a
Kentucky state court probationer incurs a new Kentucky state court felony sentence while on
probation . . .); Commonwealth v. Wright, 415 S.W.3d 606, 608 (Ky. 2013) (holding that the trial
court will lose jurisdiction to revoke if the probationary period is not extended prior to the
expiration of the probation); Tapp, 497 S.W.3d at 242 (holding that under KRS 533.020,
probation is discharged upon completion of the probationary period unless it has been revoked or
an arrest warrant is pending. If neither condition exists, the trial court has no jurisdiction to
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Finally, Bentley argues the circuit court erred in failing to address the
criteria of KRS 439.3106(1). In Commonwealth v. Gilmore, 587 S.W.3d 627, 630
(Ky. 2019) the Supreme Court of Kentucky addressed required findings under the
statute:
We acknowledge that “perfunctorily reciting the statutory
language in KRS 439.3106 is not enough.” Helms v.
Commonwealth, 475 S.W.3d 637, 645 (Ky. App. 2015).
Rather, “[t]here 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.” Id.
. . . Although not explicitly discussed in either Alleman
or Andrews, implicit in their holdings is the notion that
we look to both the written and oral findings in
conjunction with one another and not separately in a
vacuum. Therefore, we must look at the trial court’s
findings – both in open court and in its written order – to
determine whether KRS 439.3106(1) and due process
requirements were met.
Here, the circuit court checked a box on a form order which
essentially quotes the two requirements under KRS 439.3106(1). However, the
circuit court did not make any oral findings on the record or any further findings in
the written order. Although there was no dispute Bentley violated his probation,
the circuit court failed to make factual findings explaining how Bentley’s violation
revoke probation); and most recently, in Commonwealth v. Collinsworth, 628 S.W.3d 82, 85-88
(Ky. 2021) (holding that the fact that the probation revocation hearing was not conducted within
90 days does not override the consecutive sentencing requirement of KRS 533.060).
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“constitutes a significant risk to prior victims of the supervised individual or the
community at large, and cannot be appropriately managed in the community[.]”
KRS 439.3106(1)(a). Thus, the circuit court erred in merely citing the perfunctory
language of the statute. Because Bentley’s probationary period expired and the
order revoking is VACATED, the circuit court need not correct the error in the
April 29, 2021 order, but is cautioned to make the requisite factual findings in the
future explaining how a defendant’s violation “constitutes a significant risk to prior
victims of the supervised individual or the community at large, and cannot be
appropriately managed in the community[.]” KRS 439.3106(1)(a).
For the foregoing reasons, we VACATE the April 29, 2021 order of
the Letcher Circuit Court revoking Bentley’s probation. Said probation expired on
January 6, 2016. At that time, Bentley began serving his ten-year sentence for
indictments Nos. 11-CR-00229, 11-CR-00230, and 12-CR-00117.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Roy Alyette Durham, II Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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