Roger McCarty v. Commonwealth of Kentucky

RENDERED: JANUARY 26, 2024; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1008-MR

ROGER MCCARTY APPELLANT

APPEAL FROM HOPKINS CIRCUIT COURT
v. HONORABLE CHRISTOPHER BRYAN OGLESBY, JUDGE
ACTION NO. 21-CR-00001

COMMONWEALTH OF KENTUCKY APPELLEE

AND

NO. 2022-CA-1010-MR

ROGER MCCARTY APPELLANT

APPEAL FROM HOPKINS CIRCUIT COURT
v. HONORABLE CHRISTOPHER BRYAN OGLESBY, JUDGE
ACTION NO. 21-CR-00089

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION
REVERSING AND REMANDING

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BEFORE: CALDWELL, GOODWINE, AND LAMBERT, JUDGES.

CALDWELL, JUDGE: Roger McCarty (McCarty) appeals from the Hopkins

Circuit Court order revoking his probation and imposing a six-year sentence of

imprisonment.1 We reverse and remand for the entry of a proper order.

FACTS

In July of 2021, McCarty was placed on probation after he entered

guilty pleas in two different indictments. One of the conditions of his probation

was that he “complete long-term in-patient substance abuse treatment as arranged

by P & P2 or DPA3 and remain incarcerated until a bed is available.” An order was

entered two days later releasing him from incarceration to be placed at the Crown

Recovery Center in Washington County for addiction treatment. In that order,

McCarty was directed to report to the Hopkins County Jail if he should leave the

recovery program before completion.

1
McCarty entered two guilty pleas; hence, there are two underlying case numbers and two
corresponding appellate case numbers. In No. 21-CR-00001 (No. 2022-CA-1008-MR), McCarty
entered a guilty plea to public intoxication, possession of synthetic drugs, 2nd offense, and
possession of drug paraphernalia in exchange for a three (3) year sentence. In No. 21-CR-00089
(No. 2022-CA-1010-MR), he entered a guilty plea to fleeing or evading police in the second
degree, and possession of a controlled substance, methamphetamine, in the first degree in
exchange for another three (3) year sentence. Both sentences were probated for a period of five
(5) years. Upon revocation, he was ordered to serve the six (6) year sentence.
2
Probation & Parole.
3
The Kentucky Department of Public Advocacy.

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 The next month, in August of 2021, a motion to revoke his probation

was filed after he failed to complete the recovery program and did not present

himself at the jail as ordered. Additionally, the motion cited a recent arrest for

criminal trespass in the third degree in Hopkins County just four days after he was

to begin the recovery program in Washington County. He failed to report to

Probation & Parole once he was released from jail on a recognizance bond after the

arrest. Instead, he was again arrested the same day he was released and charged

with disorderly conduct in the second degree, public intoxication, and resisting

arrest in Hopkins County.

He ultimately entered a guilty plea to all pending charges and received

a sentence of 360 days with 30 days conditionally discharged. He was sanctioned

by the court for the probation violation and was again ordered to complete drug

abuse treatment after serving 120 days in jail.4

Not even a month later, a second motion to revoke his probation was

filed. The motion stated that when McCarty was asked by his probation officer to

complete paperwork for admission to a recovery program, he refused and denied

having a substance abuse problem. In February of 2022, while the motion to

4
It was made clear at the revocation hearing held in August of 2022 that any allegations of
violations which occurred before McCarty was sanctioned were not being offered as a basis for
the present revocation, but to support the prosecution’s position that McCarty was not amenable
to continued probation.

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revoke was pending, he was arrested and charged with criminal trespass in the

third degree and possession of marijuana. And again, in June of 2022 he was

charged with criminal trespass in the third degree.

A revocation hearing was held on August 1, 2022. Probation &

Parole Officer James Davis (Davis) testified that McCarty had not been in contact

with his office since January 26, 2022, when he denied needing drug treatment and

refused to fill out forms for admission to a program. Davis testified revocation was

necessary because a person who does not acknowledge having a substance abuse

problem will not be accepted into a treatment program, a requirement of McCarty’s

continued probation.

McCarty testified that he had been unable to complete drug treatment

due to circumstances beyond his control as he had been discharged from one

program. When he enrolled in a different program run by another provider,

arranged by his public defender, McCarty was soon transferred to Central State

Hospital for psychiatric treatment.

After hearing testimony from McCarty and Davis, the Hopkins Circuit

Court orally found that McCarty could not be appropriately managed in the

community and ordered that his probation be revoked in both cases. A written

order was entered revoking probation. McCarty appealed. Finding that neither the

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oral ruling or the written order met the requirements of the law, we must reverse

and remand for the entry of a proper order.

STANDARD OF REVIEW

We review determinations to revoke probation for an abuse of

discretion.

The appellate standard of review of a decision to revoke
a defendant’s probation is whether the trial court abused
its discretion. Lucas v. Commonwealth, 258 S.W.3d 806,
807 (Ky. App. 2008). To amount to an abuse of
discretion, the trial court’s decision must be “arbitrary,
unreasonable, unfair, or unsupported by sound legal
principles.” Clark v. Commonwealth, 223 S.W.3d 90, 95
(Ky. 2007), quoting Commonwealth v. English, 993
S.W.2d 941, 945 (Ky. 1999). And an appellate court will
not hold a trial court to have abused its discretion unless
its decision cannot be located within the range of
permissible decisions allowed by a correct application of
the facts to the law. Miller v. Eldridge, 146 S.W.3d 909,
915 (Ky. 2004).

Blankenship v. Commonwealth, 494 S.W.3d 506, 508 (Ky. App. 2015).

ANALYSIS

We once again are presented with the opportunity to review a

probation revocation order to ensure compliance with both the statutory dictates of

Kentucky Revised Statute (KRS) 439.3106 and the requirements of cases of the

appellate courts interpreting those dictates.

To summarize the genesis and jurisprudence on this issue, in 2011

House Bill 463 was passed by the Kentucky General Assembly. The intent of the

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law was to “maintain public safety and hold offenders accountable while reducing

recidivism and criminal behavior and improving outcomes for those offenders who

are sentenced.” KRS 532.007(1). Several statutes were created to accomplish this

goal, among them those covering probation and other forms of release, one of

those being KRS 439.3106:

(1) 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.

In Commonwealth v. Andrews, the Supreme Court of Kentucky

determined that to comply with the dictates of the statute, a trial court must first

find both that the offender presents a significant risk to prior victims or the

community and that he or she could not be appropriately managed in the

community before properly revoking probation. 448 S.W.3d 773, 780 (Ky. 2014).

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 Since the Andrews decision, the requirements of a proper revocation

order have been refined. In Helms v. Commonwealth, this Court reversed a trial

court which failed to ensure sufficient evidence was presented to support a finding

that the probationer was a danger to his prior victims or the community and could

not be properly managed in the community. In so doing, this Court stated:

[The] final order parroted the statutory language that
Helms’s violations demonstrate he is “a significant risk
to the public” and “that he cannot be properly managed
within community and that [his] behavior demonstrates
that there are no workable alternatives to
incarceration[.]” Thus, the trial court was aware of the
KRS 439.3106 criteria and stated the ultimate findings of
fact in its order.

If the penal reforms brought about by HB 463 are to
mean anything, perfunctorily reciting the statutory
language in KRS 439.3106 is not enough. There 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.

475 S.W.3d 637, 645 (Ky. App. 2015).

Most recently, we determined that the decision in Helms did not

require that the trial court engage in a detailed analysis of how the evidence

supported its conclusions that the probationer presented a danger to his victim or

the community at large and could not continue to be managed in the community.

In other words, we cannot affirm the revocation of
probation simply because the revocation order contains
the requisite statutory findings. A revocation
unsupported by evidence of record would not be “within

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 the range of permissible decisions allowed by a correct
application of the facts to the law.” McClure [v.
Commonwealth], 457 S.W.3d [728, 730 (Ky. App.
2015)]. Instead, we may affirm a decision to revoke
probation only if: a) the court made the required
findings, and b) those findings are supported by the
record. We emphatically reiterate that Helms does not
mean that a court must provide detailed explanations for
the findings required by KRS 439.3106.

Kendrick v. Commonwealth, 664 S.W.3d 731, 735 (Ky. App. 2023).

The present case presents us with the inverse of Kendrick. In this

case, the trial court failed to make either an oral or written finding that McCarty

constituted a danger to prior victims or the community at large. The court’s order

did state that it found McCarty could not be properly managed in the community,

but the failure to even mention whether he presented a danger to victims or the

community constitutes error.5

While the record may be replete with evidence to support the

conclusion that McCarty was a danger to prior victims or the community, the trial

court must either state such orally or in writing to comply with the dictates of KRS

5
We note that the order was prepared by the prosecution for the judge’s signature at the trial
court’s direction. The order was seen and agreed to by counsel for McCarty, but our prior cases
have held that this is an issue which can be reviewed for palpable error. See Burnett v.
Commonwealth, 538 S.W.3d 322, 324-25 (Ky. App. 2017) (“Regardless, even if we were to find
that the issue unpreserved, we must nevertheless conclude that the circuit court’s failure to make
the statutory findings required by KRS 439.3106 constitutes palpable error under Kentucky
Rules of Criminal Procedure (RCr) 10.26. Though the circuit court made a finding that Burnett
cannot be managed in the community, it did not make a finding that he was a significant risk to
the community. Both findings are required.”). We caution courts to ensure prepared orders are
sufficient before entry.

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439.3106 and caselaw. The trial court never mentioned in its oral ruling, and it is

not contained in the order, that it found McCarty was a danger to his prior victims

or the community at large. We cannot assume that the trial court found this factor

simply because there may be sufficient evidence in the record, despite the

Commonwealth’s contentions we may do so. The trial court failed to enter a

sufficient order, and this was error.

CONCLUSION

Before revoking probation, a trial court must first, either orally or in

writing, make a finding that the probationer is a danger to prior victims or the

community and that he cannot be managed in the community. Andrews, supra,

448 S.W.3d at 780. There must also be sufficient evidence in the record to support

both determinations. We reverse the Hopkins Circuit Court and remand this matter

with instructions to enter an order which complies with the law.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Roy A. Durham, II Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky

Matthew F. Kuhn
Solicitor General

Rachel A. Wright
Assistant Solicitor General
Frankfort, Kentucky

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