RENDERED: FEBRUARY 24, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0968-MR
SAMUAL AUSTIN MILLER APPELLANT
APPEAL FROM CHRISTIAN CIRCUIT COURT
v. HONORABLE JOHN L. ATKINS, JUDGE
ACTION NO. 14-CR-00590
COMMONWEALTH OF KENTUCKY APPELLEE
AND
NO. 2021-CA-1220-MR
SAMUAL AUSTIN MILLER APPELLANT
APPEAL FROM CHRISTIAN CIRCUIT COURT
v. HONORABLE JOHN L. ATKINS, JUDGE
ACTION NO. 14-CR-00590
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
VACATING AND
REMANDING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; EASTON AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Samual Austin Miller appeals from a July 15, 2021, order of
the Christian Circuit Court revoking his shock probation and sentencing him to
thirteen-years’ incarceration pursuant to the terms of his original plea agreement
with the Commonwealth.1 For the reasons stated, we vacate and remand.
On August 17, 2016, Miller entered into a plea agreement with the
Commonwealth. In exchange for truthful testimony against his co-defendants, the
Commonwealth agreed to amend certain charges and not oppose a motion for
shock probation after Miller served an additional year of incarceration from the
date of the plea agreement. In all, Miller agreed to thirteen-years’ incarceration for
complicity to wanton endangerment, complicity to tampering with physical
evidence, and distribution of matter portraying sexual performance by a minor.
On July 31, 2017, Miller filed a motion for shock probation. The
motion was granted by Order on Motion for Shock Probation entered August 8,
1
The original Notice of Appeal was filed on August 13, 2021 (Appeal No. 2021-CA-0968-MR).
Prior to filing the Notice of Appeal, Samual Austin Miller filed a motion to reconsider the July
15, 2021, order. That motion was subsequently denied by order entered on September 15, 2021,
and that order was appealed on October 12, 2021 (Appeal No. 2021-CA-1220-MR). The two
appeals were consolidated by Order of this Court entered October 20, 2021.
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2017, which probated the remainder of Miller’s sentence for a period of five years.
The order, in pertinent part, states the conditions of Miller’s probation as follows:
Not commit another offense; report to probation officer
as directed; permit the probation officer to visit the
defendant at home or elsewhere; answer all reasonable
inquiries by the probation officer and promptly notify the
probation officer of any changes in address or
employment; avoid injurious or vicious habits; avoid
persons or places of disreputable or harmful character;
support dependents and meet other family
responsibilities; pay the costs; remain within the area set
by probation officer; work faithfully at suitable
employment as far as possible; make reparation or
restitution to [left blank] in the amount of $[left blank],
for damages or loss caused by the defendant, said sum
shall be payable [left blank] (plus 5% service fee added
to each payment); enroll in substance abuse treatment as
follows: [left blank]; support dependents and meet other
family responsibilities; pay the cost of the proceeding
herein as set by the court; remain within the area set by
the probation officer; community service work as follows
(list agency, manner, terms and conditions) until
employed fulltime: [left blank]; alternative sentence as
follows: This order is consistent with the terms of the
plea agreement signed by the parties.
Record at p. 551.
The record before us indicates Miller had no probation violations until
May 2021, when the Commonwealth filed a motion to revoke probation. Attached
to the motion was a Notice of Preliminary Hearing from the Department of
Corrections, Division of Probation and Parole, indicating Miller had been arrested
for a new misdemeanor offense of driving under the influence on April 21, 2021.
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He was also charged with speeding; driving too fast for traffic conditions; and
no/expired registration plates. The revocation hearing was continued until July 14,
2021. In the interim, on June 13, 2021, Miller was again pulled over for vehicle
exhaust and playing loud music. He was also cited for failure to produce proof of
insurance. There was also an open bottle of Hennessey Cognac in plain view of
the police officer for which he was cited. Shortly thereafter, Miller submitted to a
urine analysis at the request of his probation officer, Megan Goss, which tested
positive for alcohol. At that point, Miller admitted to Ms. Goss he had been
drinking due to family problems. Ms. Goss arranged for him to be evaluated by a
social services clinician, who recommended Miller attend an alcohol treatment
program for at least ninety days.
At the time of the revocation hearing in July 2021, Miller’s
misdemeanor and traffic offenses were still pending in district court. Miller did
stipulate at the hearing to failing the urine analysis for alcohol. Ms. Goss testified
that Miller had no probation violations prior to his DUI arrest in April of 2021.
She also testified he had steady employment, had started his own business, and
reported to her as required. Ms. Goss recommended Miller as a good candidate for
an inpatient alcohol treatment program who would benefit therefrom. Miller’s
girlfriend testified the cognac bottle found in Miller’s vehicle was always empty
and belonged to her. She stated she intended to make a candle holder from the
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bottle. Miller also testified at the hearing. Although he refused to testify regarding
the pending DUI charges, he did admit to drinking alcohol on several occasions
after the DUI arrest and admitted he told Ms. Goss he had a problem with alcohol.
The circuit court revoked Miller’s probation. The written order made
the following findings of fact and conclusions of law:
The defendant, Samual Miller, did, in fact violate
the terms of probation in that he has subsequently used
alcohol and this conduct creates a significant community
risk that prevents appropriate community management.
KRS [Kentucky Revised Statutes] 439.3106(1).
Based upon the above and considering the
defendant’s failure to benefit from previous Probation,
IT IS HEREBY ORDERED, that the judgment
previously imposed herein shall be forthwith carried out
and the probation previously granted is HEREBY
REVOKED.
No sufficient cause having been shown why
judgment should not be pronounced, it is ADJUDGED
BY THE COURT that the defendant is guilty of the
following charges: use of alcohol (2 counts) and is
sentenced to imprisonment for a maximum term of 13
years.
Record at p. 568.
On appeal, Miller argues the circuit court abused its discretion in
revoking his probation. Our standard of review for probation revocation rulings
below is for an abuse of discretion. Commonwealth v. Andrews, 448 S.W.3d 773,
780 (Ky. 2014) (internal quotation marks and citations omitted) (“Under our abuse
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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.”). The lower court’s decision must be within the range of
permissible decisions allowed by the application of the facts to the law. McClure
v. Commonwealth, 457 S.W.3d 728, 730 (Ky. App. 2015).
The circuit court revoked Miller’s probation for “use of alcohol (2
counts).” However, based on our review of the record, including the plea
agreement and the order granting shock probation, the nonuse of alcohol does not
appear to be listed as a condition of Miller’s probation.2 “Due process requires,
among other things, notice or fair warning of what conduct might result in
revocation.” United States v. Twitty, 44 F.3d 410, 412 (6th Cir. 1995) (citations
omitted); Wilfong v. Commonwealth, 175 S.W.3d 84, 95 (Ky. App. 2004). The
circuit court heard evidence that Miller had a pending DUI case and other traffic
offenses, as well as Miller’s admitted use of alcohol on occasions separate from the
DUI. However, the circuit court did not state which evidence it relied on in
revoking Miller’s probation. See Baumgardner v. Commonwealth, 687 S.W.2d
560, 561 (Ky. App. 1985). If the circuit court relied solely on the evidence related
to Miller’s admitted use of alcohol and his positive urine analysis, we cannot
2
Courts in Kentucky speak only through written orders entered on the court’s official record.
Midland Guardian Acceptance Corp. of Cincinnati, Ohio v. Britt, 439 S.W.2d 313, 314 (Ky.
1968).
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ascertain how this conduct violated Miller’s conditions of probation as stated in the
Order on Motion for Shock Probation entered August 8, 2017.
Kentucky Revised Statutes (KRS) 533.030(1) provides, in relevant
part, that a court shall “provide as an explicit condition of every sentence to
probation or conditional discharge that the defendant not commit another offense
during the period for which the sentence remains subject to revocation.” KRS
533.030(2) lists other conditions of probation that a court may impose “in addition
to any other reasonable condition.” KRS 533.030(2)(l) permits a court to impose,
in relevant part, the condition that a defendant “[s]ubmit to periodic testing for the
use of controlled substances or alcohol, if the defendant’s record indicates a
controlled substance or alcohol problem.” There is nothing in the record before
this Court to indicate Miller had an alcohol problem at the time of entry of his plea
in 2017, and the underlying crimes were unrelated to alcohol consumption by
Miller. The portion of the Order granting shock probation that addressed substance
abuse treatment was left blank by the circuit court. Although the circuit court had
authority to order abstention under KRS 533.030(2), the order granting shock
probation does not specifically list abstention from alcohol as a condition of
Miller’s probation.
Due to the circuit court’s failure to state what evidence it relied on in
revoking Miller’s probation, we do not know to what extent, if any, it relied on
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Miller’s pending misdemeanor and traffic charges to reach its decision. We
acknowledge that:
An individual’s probation may be revoked any time
before the expiration of the probationary period when the
trial court is satisfied by a preponderance of the evidence
presented in a revocation hearing that the probationer
violated a condition of probation. Although new
charges may form the basis for revocation
proceedings, a conviction on those charges is not
necessary in order to revoke probation.
Barker v. Commonwealth, 379 S.W.3d 116, 123 (Ky. 2012) (emphasis added).
Further, a probationer is “required to answer all reasonable questions
related to compliance with the conditions of probation that do not tend to
incriminate them in a future criminal prosecution.” Id. at 128. As previously
stated, Miller did not testify regarding the DUI charge at the revocation hearing.
However, Miller did admit that he violated his probation by using alcohol although
neither party has cited to this Court where in the record below this probation
condition can be found. Miller also testified that the open cognac bottle found in
his car was empty and belonged to his girlfriend for a craft project. And, the
ultimate disposition of the DUI and traffic offenses does not appear in the record
before the Court.
The evidence introduced at the revocation hearing supported the
circuit court’s finding that Miller used alcohol. However, the nonuse of alcohol
alone does not appear to be a specific condition of Miller’s probation. Although
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Ms. Goss testified that Miller had been arrested and charged with a DUI, and had
an open alcohol container in his vehicle on a subsequent stop, there was no other
evidence admitted regarding those charges except for Miller’s denial of having an
open container during the second traffic stop. The circuit court had authority under
KRS 533.020(1) to modify Miller’s probation to include abstention from alcohol or
referral to an alcohol treatment program as suggested by Ms. Goss; however, the
court did neither. Rather, the court revoked Miller’s probation.
Based on the foregoing, we conclude the circuit court’s findings of
fact were not sufficient to revoke Miller’s probation based on the evidentiary
record in this case. Similarly, the court’s findings did not satisfy the requirements
of KRS 439.3106, as argued by Miller on appeal. KRS 439.3106(1) provides that
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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The Kentucky Supreme Court has explained that “KRS 439.3106(1)
requires trial courts to consider whether a probationer’s failure to abide by a
condition of supervision constitutes a significant risk to prior victims or the
community at large, and whether the probationer cannot be managed in the
community before probation may be revoked.” Andrews, 448 S.W.3d at 780. As
this Court has previously stated, “the General Assembly intended the task of
considering and making findings regarding the two factors of KRS 439.3106(1) to
serve as the analytical precursor to a trial court’s ultimate decision: whether
revocation or a lesser sanction is appropriate.” McClure, 457 S.W.3d at 732. By
directing the trial court to make such a determination, “the legislature furthers the
objectives of the graduated sanctions schema to ensure that probationers are not
being incarcerated for minor probation violations.” Andrews, 448 S.W.3d at 779.
The circuit court failed to make sufficient factual findings under KRS
439.3106 for this Court to adequately review the court’s compliance with the
statute, including whether Miller’s conduct posed a significant community risk that
could not be appropriately managed in the community, as required by KRS
439.3106(1) and Andrews, 448 S.W.3d 773.
Accordingly, for the foregoing reasons, we vacate the Christian
Circuit Court’s July 15, 2021, Order Revoking Shock Probation and Judgment and
remand for the circuit court to conduct another revocation hearing and make
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appropriate findings in accordance with applicable law and consistent with this
Opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Jennifer Wade Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Stephanie L. McKeehan
Frankfort, Kentucky
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