APPEAL FROM CRITTENDEN CIRCUIT COURT HONORABLE C. RENE WILLIAMS, JUDGE ACTION NO. 2007-CR-00022
The opinion of the court was delivered by: Combs, Judge:
RENDERED: FEBRUARY 22, 2013; 10:00 A.M.
BEFORE: CAPERTON, COMBS, AND DIXON, JUDGES.
Rodney Carter appeals an order of the Crittenden Circuit Court that revoked his probation. After our review, we vacate and remand.
On June 11, 2009, Carter pleaded guilty to one count of theft by deception (over $300).*fn1 He received a five-year sentence, probated for five years. Two of the conditions of his probation required that he "report to the probation officer as directed" and that he "not commit another offense." On July 27, 2010, Carter's probation officer, Paul Newman, filed an affidavit in which he stated that he had not had contact with Carter since March 16, 2010. The last contact was a letter from Carter's wife. Officer Newman also informed the court that Carter had been charged with bigamy in McLean County.
The court held a probation revocation hearing on December 8, 2011. Officer Newman stated that Carter last reported to his office in November 2009. Carter was informed that he needed to report in December 2009 but that he never did. Again, the only contact that Officer Newman had with Carter after November 2009 was peripheral: a letter that Carter's wife wrote in March 2010. Carter testified that since November 2009, he had been in and out of the hospital because of colon cancer and unspecified mental issues. He testified that he thought that his "reporting" consisted of sending in a form, which he did for several months. Carter told the court that although he had asked his wife to contact Officer Newman during one of his hospitalizations, she did not follow through for him.
The trial court acknowledged that Carter had been charged with bigamy. Nevertheless, the court stated that it would not revoke his probation because of the bigamy charge. Instead, it indicated that it would revoke Carter's probation because he had absconded. The court declared that reporting to a probation officer is the most important condition of probation. Carter asked the court to consider alternative sanctions -- such as treatment, but it declined to do so and reinstated his sentence of five-years' incarceration. This appeal follows.
Our standard of review for revocation of probation is whether the trial court abused its discretion. Lucas v. Commonwealth, 258 S.W.3d 806, 807 (Ky. App. 2008). "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).
On appeal, Carter argues*fn2 that the trial court erred by not considering relevant statutory factors when it revoked his probation. After our review of those factors, we are compelled to agree.
Kentucky Revised Statute[s] (KRS) 439.3106 was enacted by the General Assembly in 2011. It provides the following guidelines for ...