RENDERED: APRIL 22, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1666-MR
ELIZABETH WEAVER APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
v. HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 16-CR-00844
COMMONWEALTH OF KENTUCKY APPELLEE
AND
NO. 2020-CA-0196-MR
ELIZABETH WEAVER APPELLANT
APPEAL FROM GRANT CIRCUIT COURT
v. HONORABLE REBECCA LESLIE KNIGHT, JUDGE
ACTION NO. 16-CR-00064
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING IN PART, VACATING IN PART,
AND REMANDING
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BEFORE: COMBS, LAMBERT, AND K. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: Elizabeth Weaver appeals from the revocation of her
probation in two different cases which were consolidated for our review. We
affirm the Kenton Circuit Court’s order revoking probation as the oral and written
findings were sufficient to allow revocation pursuant to Kentucky Revised Statutes
(KRS) 439.3106; we vacate and remand the Grant Circuit Court’s order revoking
probation as that circuit court made insufficient findings, relying entirely on the
fact that Weaver’s probation was revoked in Kenton Circuit Court to justify its
revocation.
In 2016, in Grant County, Weaver was arrested for possession of a
controlled substance in the first degree, possession of drug paraphernalia, and
tampering with physical evidence. These charges resulted in case number 16-CR-
00064 (the Grant case).
Later in 2016, in Kenton County, Weaver was charged with
promoting contraband for introducing drugs into the jail. This charge resulted in
case number 16-CR-00844 (the Kenton case).
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Although the Kenton case was initiated later in time for events that
took place after Weaver was charged in the Grant case, the Kenton case was
resolved first. In 2017, in the Kenton case, Weaver pled guilty to the charge of
promoting contraband in the first degree and was sentenced to four years of
incarceration to be served consecutively to any sentence in the Grant case,
probated for four years. In 2018, in the Grant case, Weaver pled guilty to the
charges of possession of a controlled substance in the first degree, possession of
drug paraphernalia, and tampering with physical evidence and was sentenced to a
total of five years of incarceration, probated for five years. In both cases,
Weaver’s conditions of probation required her to report to Probation and Parole
and not commit any other offenses.
After Weaver was placed on probation, she asked to have her
probation transferred to Ohio. Ohio accepted the transfer and supervised Weaver
for the next two years.
In the Kenton case, in January 2019, Probation and Parole apparently
filed a violation of supervision report and a warrant for Weaver’s arrest was issued
in Kentucky. It appears that this violation of supervision report was based upon
new offenses Weaver committed. However, the violation of supervision report and
accompanying affidavit are missing from the record.
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In June 2019, Probation and Parole filed violation of supervision
reports in both the Kenton case and in the Grant case. In the Grant case, the
violation of supervision report stated that in June 2019, Probation and Parole
received notice from Ohio that Weaver had absconded from supervision and that a
January 2019 records check had revealed that Weaver was found guilty in April
2019 on two misdemeanors in Grant County: (1) a March 2018 public intoxication
offense; and (2) an October 2017 driving under the influence offense. Probation
and Parole recommended revocation.
In the Kenton case, the violation of supervision report indicated that it
was supplemental to the report filed in January 2019. It quoted from a violation
report from Ohio received through the interstate offender tracking system:
On 5/22/19 this officer spoke with the offender by phone
and advised her of the probation violation warrant from
Kentucky. She was instructed to turn herself in by
5/24/19 to Kentucky. The offender stated that she would
do so. On 5/29/19 a check of warrants and KY Vinelink
revealed the PV warrant was still active and the offender
was not in custody. On 5/29/19 this officer attempted to
contact the offender by phone to no avail and left a
voicemail instructing her to turn herself in on KY’s
warrant. On 6/4/19 this officer along with officers of the
Cincinnati Police Department attempted to make contact
with the offender at her last known address . . . [in]
Cincinnati, OH. No one answered the door and a card
was left instructing the offender to report on 6/5/19. The
offender failed to report as instructed. On 6/5/19 the
offender’s boyfriend . . . (and also the homeowner) left a
voicemail stating the parole officers were not permitted
to be on his property and if it occurs again he would file
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criminal trespassing charges. Also, on 6/5/19 the
offender sent a text message to this officer stating “I am
sorry, My Uncle passed away the Morning I was to come
in that Day. Im definitely turning myself in. I don’t have
a car n I’m stuck.” [sic] Based on the offender’s failure
to report along with her placement sponsor’s refusal to
allow officers on the property, the offender is an
absconder.
Probation and Parole requested revocation.
The revocation of probation hearing was held first in the Kenton case.
During the hearing held on September 30, 2019, Weaver stipulated to the violation.
The Commonwealth requested revocation while Weaver’s counsel requested that
the circuit court grant Weaver a sanction. The Commonwealth argued Weaver was
a danger to the public because she drove while intoxicated and it appeared she
could not be supervised. Weaver’s counsel argued Weaver had made an effort,
completing a rehab program while on supervision, and that she had a substantial
period of compliance before she violated, and was not unable to comply with
supervision.
The Grant Circuit Court responded as follows:
Here’s the problem in a nutshell. She doesn’t report to
the people she’s supposed to report to, to keep her out of
jail. It’s that simple. Stay out of jail by reporting to a
probation officer. She can’t do it. Now she’s here for
promoting contraband into the Kenton County Jail, a very
serious charge. The stipulation to violation, the sentence
will be served. . . . Someone almost died from her
promoting contraband in the jail.
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Following the hearing, in its written order the Kenton Circuit Court
noted that Weaver stipulated that she violated the conditions of her probation and
made the following findings of fact:
The Court finds that the Defendant violated her
probation by absconding.
The Court further finds that revocation of
probation is required due to the Defendant’s failure to
comply with the conditions of supervision; such failure
constitutes a significant risk to the community at large;
and, the Defendant cannot be appropriately managed in
the community.
The circuit court then concluded that Weaver violated the conditions of probation
and revoked Weaver’s probation and sentenced her to serve her four-year sentence
consecutively to that in the Grant case.
In the Grant case, a probation revocation hearing was held on October
23, 2019. The Commonwealth attorney told the Grant Circuit Court that he and
Weaver’s attorney had explained to her she could not continue on probation
because she was now a state inmate pursuant to having her probation revoked on
the Kenton case. Weaver admitted to the public intoxication and DUI convictions
and admitted to absconding since June 2019. After confirming that Weaver was
waiving her right to a full hearing and admitting to the violations, the Grant Circuit
Court announced: “Now Ms. Weaver, there is nothing else I can do except revoke
your probation.”
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Following the hearing, in its written order the Grant Circuit Court
stated as follows:
The Defendant having stipulated to violations of
the conditions of her probation, namely: (1) Receiving
New Misdemeanor Conviction – Public Intoxication; (2)
Receiving New Misdemeanor Conviction – DUI,
Aggravator, 1st Offense; and (3) Absconding
Supervision; the Court having found the Defendant’s
failure to comply with the conditions of supervision
constitutes a significant risk to the community at large
and the Defendant cannot be appropriately managed in
the community, and being otherwise advised,
IT IS THEREFORE ORDERED AND
ADJUDGED that the Commonwealth’s Motion to
Revoke Defendant’s Probation be and the same is hereby
GRANTED.
The circuit court ordered that Weaver serve the balance of her five-year sentence.
In both the Kenton and Grant cases, Weaver argues that although the
circuit court orders stated the requisite statutory language required for revocation
of probation pursuant to KRS 439.3106, in neither case did the circuit court make
the needed factual findings to support its decision. She requests that her cases be
reversed for an actual consideration of these factors and on remand that the circuit
courts make express findings as to both elements and make a conclusion as to
whether revocation or a lesser sanction, such as drug rehabilitation, should be
imposed.
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The Commonwealth argues that Weaver failed to preserve the error in
each revocation proceeding by not seeking factual findings as to each factor and
argues reversal is not appropriate under the palpable error standard.
“A decision to revoke probation is reviewed for an abuse of
discretion.” Commonwealth v. Andrews, 448 S.W.3d 773, 780 (Ky. 2014). “The
test for abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1999).
As an initial matter, we must first address the Commonwealth’s
arguments that whatever errors may have taken place, reversal is not appropriate
because Weaver’s errors are unpreserved because she did not request findings
pursuant to KRS 439.3106 and she cannot establish palpable error because any
errors do not rise to the level of manifest injustice. We disagree that such a
standard precludes relief. As noted in Walker v. Commonwealth, 588 S.W.3d 453,
459 (Ky.App. 2019), Burnett v. Commonwealth, 538 S.W.3d 322, 324-25
(Ky.App. 2017), and Lainhart v. Commonwealth, 534 S.W.3d 234, 238 (Ky.App.
2017), whether the abuse of discretion or palpable error standard of review applies,
a failure to make the appropriate findings requires that the decision revoking
probation be vacated for the appropriate full consideration of the statutory criteria
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and the making of appropriate findings. Of course, if no error took place in
making appropriate findings, there is no abuse of discretion.
Previous cases have amply explained the changes to the probation
revocation process. See generally Andrews, 448 S.W.3d at 777-80; Helms v.
Commonwealth, 475 S.W.3d 637, 641-45 (Ky.App. 2015) (both discussing the
statutory changes and interpretations of these changes by our appellate Courts). It
suffices to say that a violation of probation is no longer sufficient in and of itself to
justify revocation. As stated in KRS 533.040(2) a court can “determine[]
that a defendant violated the conditions of his probation . . . but reinstate[]
probation[.]” The consideration of whether upon violation probation should be
revoked or reinstated is controlled by KRS 439.3106(1). It states:
Supervised individuals 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.
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Id. Accordingly, “[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.” Helms, 475 S.W.3d at 645.
Both criteria contained in KRS 439.3106(1)(a) must be established. Andrews, 448
S.W.3d at 780; Price v. Commonwealth, 534 S.W.3d 805, 807 (Ky.App. 2017).
Specific findings of fact addressing the statutory criteria may be either
written or oral. Commonwealth v. Alleman, 306 S.W.3d 484, 487-88 (Ky. 2010).
Appellate courts should “look to both the written and oral findings in conjunction
with one another and not separately in a vacuum.” Commonwealth v. Gilmore, 587
S.W.3d 627, 630 (Ky. 2019).
KRS 439.3106 as interpreted by our case law only requires that the
combination of the circuit court’s written and oral findings demonstrate that “the
court considered all the evidence and the specific requirements of [the statute]
before deciding to revoke [the probationer’s] probation.” Gilmore, 587 S.W.3d at
631. If such a decision is made and it is supported by the evidence of record, then
no abuse of discretion has occurred. Id.
As noted in Andrews, 448 S.W.3d at 778, “[c]ertain violations . . .
require the probation officer to submit the matter to the trial court without the
possibility of imposing graduated sanctions.” (Footnote omitted.) Both
absconding and DUI are violations of that type. 501 Kentucky Administrative
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Regulations (KAR) 6:250 § 2(2)(b)1. and 6. While the circuit court must still
consider graduated sanctions after any type of violation, these types of violations
generally pose a greater risk to the public and are less amenable to being addressed
outside of incarceration.
It is also appropriate for a court to consider the probationer’s criminal
history as part of its risk assessment. As noted in Andrews, 448 S.W.3d at 780,
“[w]hile Andrews’s criminal history could not be the sole basis for his revocation,
it was appropriately considered when assessing the risk posed by his continued
probation.”
In the Kenton case, there is no question that Weaver violated the
terms of her probation as she admitted to absconding and committing DUI and
public intoxication. Weaver’s violations for absconding and committing DUI are
very serious.
The only question is whether the Kenton Circuit Court’s oral findings
and written findings when combined constitute adequate findings under KRS
439.3106(1). The Kenton Circuit Court orally found that Weaver did not report
and could not report and was on probation for a very serious charge; it made
written findings that Weaver had violated her probation by absconding, her failure
to comply with the conditions of supervision constituted a significant risk to the
community, and she could not be appropriately managed in the community. While
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best practices would dictate that the Kenton Circuit Court “connect the dots” a
little more by explaining how serious absconding is and that absconding and being
on probation for a serious charge in combination made Weaver a significant risk to
the community and her absconding prevented her from being appropriately
managed in the community, we are satisfied that the circuit court did enough to
communicate that in accordance with Gilmore. Less needed to be said due to the
very nature of the absconding charge being found. We are satisfied that the
collective findings that the circuit court made were sufficient.
Although the Kenton Circuit Court did not think reinstatement of
probation was appropriate, this does not mean that at some future point that shock
probation or graduated sanctions might not be appropriate. We urge courts to
consider sanctions which may rein in violative behavior without fully revoking
probation but recognize whether such an option is appropriate in a given case is
within the circuit court’s discretion. For example, a new condition placing her in
an inpatient program for substance abuse could be appropriate for Weaver in the
future. See KRS 439.3106(2).
In the Grant case, the situation is very different. In addition to the
general arguments made in each case, Weaver also argues that the conclusion that
she was not eligible for probation because she was a state inmate was patently
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untrue as if probation was continued, pursuant to KRS 533.040(3) she would have
to serve it concurrently with her prison sentence.
The Commonwealth argues that Weaver invited the Grant Circuit
Court to commit error in not evaluating the factors where her counsel agreed with
the Commonwealth that probation was no longer an option, resulting in her
affirmative waiver of any error.
In her reply brief, Weaver argues that she did not knowingly
relinquish her right to have probation considered in the Grant case and it would be
appropriate to consider the ineffective assistance of her counsel in this appeal.
As explained supra, a violation of probation does not mean that
revocation is required. Weaver is correct that pursuant to KRS 533.040(3), “[a]
sentence of probation or conditional discharge shall run concurrently with any
federal or state jail, prison, or parole term for another offense to which the
defendant is or becomes subject during the period, unless the sentence of probation
or conditional discharge is revoked.” See Conrad v. Evridge, 315 S.W.3d 313,
317-18 (Ky. 2010) (providing an example of a probationer who was incarcerated
on new charges whose probation was reinstated with the modification that he
would spend the rest of his probation in jail). Additionally, the Commonwealth
has all but conceded that the advice Weaver received from her own counsel and the
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prosecutor was incorrect and the Grant Circuit Court was not obligated to revoke
Weaver’s probation just because it was revoked in the Kenton case.
We disagree that Weaver affirmatively waived her rights because her
counsel invited the erroneous ruling by the Grant Circuit Court. A
misunderstanding of the law is not a product of strategy. Additionally, this error
was apparently a joint product of both the prosecution and defense attorney, which
influenced what the judge understood could be done. Therefore, this
misunderstanding had real consequences as all the evidence suggests that going
forward, the Grant Circuit Court did not realize it had the discretion to do anything
other than revoke Weaver’s probation.
In considering oral and written findings together, we are convinced
the Grant Circuit Court, albeit unknowingly, abused its discretion in not
considering whether to revoke or reinstate Weaver’s probation, failing to make the
necessary findings under KRS 439.3106(1)(a) and, instead, simply deciding that
what happened in another case controlled the outcome here. The written findings
which listed the probation violations and then perfunctorily recited the statutory
language cannot negate the Grant Circuit Court’s unequivocal oral pronouncement
that it had no choice. “Therefore, we hold that under either an abuse of discretion
or 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
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findings[.]” Walker, 588 S.W.3d at 459. On remand, a new probation revocation
hearing must be held before the Grant Circuit Court at which time counsel may
present testimony and make arguments as to why Weaver’s probation, despite her
admitted violations, should not be revoked.
Accordingly, as to these orders revoking Weaver’s probation, we
affirm the Kenton Circuit Court’s order, and vacate and remand the Grant Circuit
Court’s order.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEFS FOR APPELLEE:
Aaron Reed Baker Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Emily Bedelle Lucas
Assistant Attorney General
Frankfort, Kentucky
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