RENDERED: SEPTEMBER 29, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1509-MR
RICHARD L. BROWN APPELLANT
APPEAL FROM OLDHAM CIRCUIT COURT
v. HONORABLE JERRY D. CROSBY, II, JUDGE
ACTION NO. 15-CR-00017
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: THOMPSON, CHIEF JUDGE; KAREM AND MCNEILL, JUDGES.
MCNEILL, JUDGE: Richard L. Brown (“Brown”) appeals from the Oldham
Circuit Court’s order revoking his probation. Brown contends the trial court erred
when it revoked his probation and failed to make required findings under Kentucky
Revised Statute (“KRS”) 439.3106(1). After careful review, we affirm.
I. BACKGROUND
On February 13, 2015, Brown was indicted on two counts of
possession of a handgun by a convicted felon; trafficking in marijuana, over 8
ounces (enhanced); possession of drug paraphernalia (enhanced); possession of
marijuana (enhanced); second-degree possession of a controlled substance
(enhanced); and third-degree possession of a controlled substance (enhanced). On
September 3, 2015, Brown accepted a guilty plea. In return, the Commonwealth
agreed all the enhanced offenses would be amended down to unenhanced charges,
and one count of possession of a handgun by a convicted felon would be
dismissed. The Commonwealth additionally agreed Brown could be placed on
pretrial diversion for the handgun and trafficking in marijuana charges and placed
on probation for all remaining charges. Brown was sentenced to supervised
pretrial diversion for a period of five years with a suspended sentence of seven
years on the firearm and trafficking charges and received a sentence of seven years
probated for a period of two years on the remaining charges.
On September 23, 2015, the trial court entered an order, sua sponte,
noting that possession of a handgun by a convicted felon, due to its status as a class
C felony, was not eligible for pretrial diversion and scheduled the matter for a
review on October 8, 2015. On October 14, 2015, the handgun charge was
amended to first-degree wanton endangerment, and the trial court entered a new
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order granting supervised diversion for five years with a suspended five-year
sentence on that charge.1
From June 1, 2016, to May 16, 2017, multiple violation of supervision
reports were completed by Brown’s supervising probation officers detailing
numerous violations of his diversion and probation. A revocation hearing date was
ultimately set by the trial court for June 22, 2017, during which Brown stipulated
to violating the terms of his supervision. The trial court revoked Brown’s
diversion and probation and ordered that he serve his sentence. An agreed order
was entered on January 10, 2018, granting shock probation on the condition that
Brown be released to and reside at a long-term drug and alcohol inpatient treatment
center for a minimum of six months.
On December 3, 2019, and December 16, 2019, two violation of
supervision reports were respectively submitted documenting multiple probation
violations, and the trial court held a revocation hearing on March 30, 2021, which
was continued to and concluded on May 12, 2021. The trial court entered a written
order on June 4, 2021, revoking Brown’s probation. Brown was returned to active
supervision with conditions that he undergo a mental health examination and meet
1
The trial court’s October 14, 2015, order contained an error stating the Commonwealth
recommended a sentence of seven years on the first-degree wanton endangerment charge. This
was corrected by an order entered on November 18, 2015, which reflected that the
Commonwealth’s recommendation was for five years.
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with his probation officer within seven days of his release from incarceration for
purposes of enrolling in an approved substance abuse treatment program.
On September 24, 2021, the Commonwealth filed a motion to revoke
probation with an attached violation of supervision report asserting Brown failed to
complete substance abuse treatment after he was discharged from Awake
Ministries for non-compliance with the program. The report also alleged Brown
provided false information to his probation officer by misrepresenting the length of
the treatment program indicating it would take two weeks to complete instead of
45 to 60 days as stated by a program representative. A revocation hearing was
held on November 18, 2021, at which Brown’s probation officer, Timothy Pollard,
testified for the Commonwealth along with Awake Ministries’ Director of Men’s
Housing, Chris Banta. Mr. Banta testified that Brown failed to attend multiple
individual meetings with him during his enrollment in the treatment program
which resulted in his expulsion. Brown testified in his defense. At the conclusion
of the hearing, the trial court made preliminary oral findings from the bench but
took the matter under submission. An order containing written findings and
revoking Brown’s probation was later entered on December 1, 2021. This appeal
followed.
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II. STANDARD OF REVIEW
We note that Brown’s preservation statement designates that his
claims are preserved by the “revocation hearing and Order revoking.” Ordinarily,
revocation of diversion is reviewed for abuse of discretion. See Commonwealth v.
Andrews, 448 S.W.3d 773, 780 (Ky. 2014). “Under our abuse of 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.’” Andrews, 448 S.W.3d at 780 (quoting Commonwealth v. English, 993
S.W.2d 941, 945 (Ky. 1999)). However, we could find no indication during our
review of the record of Brown raising the issue of insufficient findings before the
trial court after entry of the written order to revoke, such as through a motion to
vacate or requesting additional findings. Regardless, prior precedent is clear that
failure to enter sufficient findings under KRS 439.3106(1) constitutes palpable
error. See Burnett v. Commonwealth, 538 S.W.3d 322 (Ky. App. 2017); see also
Anderson v. Johnson, 350 S.W.3d 453, 457 (Ky. 2011) (“[T]he failure of the
parties to request complete findings of fact is not fatal to their appeals because the
trial judge did not comply with the procedural requirements of this statutory
proceeding.”). “An error is palpable, we have explained, only if it is clear or plain
under current law . . . .” See Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky.
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2009) (internal quotation marks and citation omitted). Thus, we proceed
accordingly.
III. ANALYSIS
On appeal, Brown argues the revocation of his probation was
erroneous because the trial court violated KRS 439.3106(1) by failing to enter
sufficient findings that he could not be appropriately managed in, and was a
significant risk to, the community. In his appellate brief, Brown specifically
argues, “The trial court never uttered the words, [‘]significant risk to prior victims,
the community or couldn’t be appropriately managed in the community[’] until the
boilerplate Revocation Order used the required statutory language.” (Internal
quotation marks added.) Brown further states that the holding in Helms v.
Commonwealth, 475 S.W.3d 637 (Ky. App. 2015), “forbids the use of form
findings and conclusions of law in probation revocation orders[.]”
KRS 439.3106(1) states that supervised individuals are 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
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assist the offender to remain compliant and crime-free in
the community.
While this statute requires a trial court to consider its described
factors, it does not “require anything more than a finding to this effect supported
by the evidence of record.” McClure v. Commonwealth, 457 S.W.3d 728, 733
(Ky. App. 2015). “These findings can be either oral or written to satisfy both KRS
439.3106(1) and the defendant’s due process rights.” Commonwealth v. Gilmore,
587 S.W.3d 627, 630 (Ky. 2019); see also Commonwealth v. Alleman, 306 S.W.3d
484, 486 (Ky. 2010). “[W]e look to both the written and oral findings in
conjunction with one another and not separately in a vacuum.” Gilmore, 587
S.W.3d at 630.
Upon the conclusion of the revocation hearing, the trial court cited its
June 4, 2021 revocation order and spoke at length about the condition of Brown’s
probation being that Brown enroll in and complete drug treatment. The trial court
also referenced Brown’s prior appearance before the trial court when he was in
custody for his previous probation violation stating:
I was pretty clear with you, and if we need to roll that
tape back from the June, from the date when we were
here in court. I can roll it back, and we can sit and listen
to what we talked about. But my interest is, is that you
have shown all the signs in your, um, evaluation that we
had you complete before you were released from custody,
all the signs of being a meth addict. You are a drug
addict. . . . And you don’t get to dictate where you go or
how you get treatment. You have forfeited that right.
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(Emphasis added.) Shortly thereafter, the trial court indicated it was taking the
matter under submission and would follow up with a written order.
The written order was completed on a preprinted form, and within a
section reserved for typewritten findings, the order states as follows:
Defendant was ordered to enroll in SA[2] treatment and
was returned to probation and signed conditions to
complete any treatment program directed by the Court or
his officer. Defendant was directed to complete IOP[3] at
AWAKE ministries. Defendant enrolled at AWAKE but
was terminated for failing to attend individual sessions.
Defendant made excuses for his absences but court
adjudged those excuses to be invalid and/or false.
Defendant submitted proof of a positive drug screen for
amphetamines. He argues he has a valid prescription.
The copy of the prescription cut off the date of the
prescribing doctor and the date the prescription was
filled. The only prescribed medication he advised P&P[4]
was ZOLOFT for depression. The positive tests for
amphetamines was [sic] not submitted by P&P. The
defendant presented this on his own.
(Footnotes added.) Below this, the written order contains a marked checkbox next
to preprinted language containing the KRS 439.3106(1) criteria.
When examining the trial court’s oral findings in conjunction with its
written findings, we conclude the trial court met the statute’s requirements. It is
2
Substance abuse.
3
Intensive outpatient treatment.
4
Probation and Parole.
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immaterial the statutory criteria were not invoked until the entry of the trial court’s
written order or that the written order was completed on a preprinted form. The
holding in Helms, supra, does not expressly preclude the use of preprinted form
orders. It instead sought to preclude perfunctory recitations of the statutory
factors. Id. Indeed, preprinted form orders have been affirmed in prior appellate
decisions. See Thompson v. Commonwealth, No. 2017-CA-001866-MR, 2019 WL
103866, at *4 (Ky. App. Jan. 4, 2019); Fair v. Commonwealth, No. 2016-CA-
001105-MR, 2017 WL 3642967, at *3 (Ky. App. Aug. 25, 2017).5 As long as a
trial court makes specific findings, and a form order clearly evidences the criteria
were considered, there is no error. Id. In the trial court’s order, the checkbox next
to the criteria was checked which sufficiently signified the trial court considered
the statute. See Thompson, 2019 WL 103866, at *4.
Brown argues his failure to attend individual meetings “should not
have amounted to a finding that he could not be appropriately managed in the
community[,]” and his employment, attendance at church, and support of his
family demonstrated he “was not a risk to the community[.]” This position is far
too narrow and omits the larger context and circumstances in which his violation
occurred. The trial court’s oral and written findings demonstrate Brown had
5
We cite Thompson and Fair as persuasive, as opposed to mandatory, authority pursuant to
Kentucky Rule of Appellate Procedure 41(A).
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previously committed a prior violation and was released from custody for the
purpose of addressing his drug addiction. Upon committing a subsequent violation
by failing to cooperate with his drug treatment, it was clear he could not
sufficiently be managed within the community. See Compise v. Commonwealth,
597 S.W.3d 175, 182 (Ky. App. 2020) (“[A] defendant who will not cooperate
with the conditions of her supervision may indeed constitute a significant risk to
the community at large and be unmanageable in the community.”). Brown’s
insufficiently treated drug addiction coupled with the continued use of controlled
substances without sufficient proof of a valid prescription thus posed a significant
risk to the community. See Andrews, supra.
In response to the Commonwealth’s argument on appeal which
emphasized Brown’s prior violations and history, Brown asserts revocation should
be based solely on his “current violations” as opposed to his “prior actions.” While
this statement is accurate, one’s prior history is still a relevant factor that may be
considered for KRS 439.3106(1) purposes, and for reasons already discussed, the
trial court did not revoke solely based on Brown’s prior history. See Andrews, 448
S.W.3d at 780 (“While [Appellant’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.”).
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Brown maintains the “trial court’s written order revoking simply
stated the violations from the supervision report” with “no explanation of the risks
or how this affected his ability to be managed in the community.” However, the
case law is clear that explanations of findings are not required. See New v.
Commonwealth, 598 S.W.3d 88, 90 (Ky. App. 2019) (citation omitted) (“A trial
court is not required to provide explanations for those findings . . . .”); McClure,
457 S.W.3d at 733 (“Neither KRS 439.3106 nor Andrews require anything more
than a finding . . . supported by the evidence of record. The trial court complied
with this requirement and it owed [Appellant] no further explanation.”).
Lastly, Brown contends “the trial court failed to consider other
sanctions as required under KRS 439.3106(2).” We disagree. The trial court
sufficiently demonstrated it considered the KRS 439.3106(1) criteria. This
evidences it determined alternative sanctions were not feasible, and there is no
requirement lesser sanctions be imposed before revocation. See McVey v.
Commonwealth, 467 S.W.3d 259, 263 (Ky. App. 2015).
In conclusion, and in further consideration of McClure, supra, we
hold the trial court’s findings are sufficiently supported by the evidence in the
record. Mr. Banta testified at the evidentiary hearing that Brown missed multiple
individual sessions which resulted in his discharge from the drug treatment
program at Awake Ministries. The record contains a positive drug screen for
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amphetamines taken during Brown’s period of supervision along with a photo of a
prescription tendered by Brown which, as the trial court found, contains no clear
prescription date. While the trial court only referenced Brown’s most recent prior
violation, the record contains multiple notice of supervision violations and two
previous revocation orders including the June 4, 2021, order referenced by the trial
court. In respect to the oral finding concerning Brown’s drug addiction, the record
demonstrates his underlying convictions predominantly consist of drug offenses,
his prior violations for which he was previously revoked involved multiple prior
instances of controlled substance use, and a screening questionnaire completed and
introduced as an exhibit by Brown indicated he had a history of overconsumption
of alcohol and/or drugs.
Consequently, the trial court did not abuse its discretion. Regardless,
if any abuse of discretion can be discerned, it does not rise to the level of palpable
error based on these facts and under the current state of the law. See
Commonwealth v. Moore, 664 S.W.3d 582, 592 (Ky. 2023) (holding that a trial
court’s KRS 439.3106(1) findings and revocation based on a probationer’s failure
to report to Probation and Parole and use of methamphetamine and
benzodiazepines did not constitute palpable error).
Therefore, for the reasons stated herein, we affirm the order of the
Oldham Circuit Court revoking probation.
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ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Roy A. Durham, II Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
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