Released for Publication January 8, 2015.
ON REVIEW FROM COURT OF APPEALS. CASE NO. 2011-CA-001360-MR. PULASKI CIRCUIT COURT NO. 10-CR-00347.
FOR APPELLANT: Jack Conway, Attorney General of Kentucky, Courtney J. Hightower, Assistant Attorney General.
FOR APPELLEE: Shannon Renee Dupree, Assistant Public Advocate; Steven Jared Buck, Assistant Public Advocate.
The Commonwealth of Kentucky appeals from a Court of Appeals decision reversing the Pulaski Circuit Court's revocation of Joseph Andrews's probation. Finding that the Pulaski Circuit Court had abused its discretion when it revoked Andrews's probation pursuant to Kentucky Revised Statute (" KRS" ) 439.3106, the Court of Appeals reversed and remanded the matter to the circuit court for it to impose an alternative to revocation and incarceration. On discretionary review, the Commonwealth now claims that the Court of Appeals erred in finding that KRS 439.3106, a statute that was adopted as part of HB 463 in 2011, applied to the circuit court and in failing to recognize that the lower court properly exercised its
discretion on the facts before it. We reverse the appellate court's decision and reinstate the order of the circuit court.
Appellee Joseph Andrews pled guilty to unlawful possession of a methamphetamine precursor, second offense, on December 20, 2010. Andrews was sentenced to a ten-year prison term, and placed on supervised probation for a period of five years. Among the terms of Andrews's probation was the condition that he refrain from using any drugs unless prescribed by a doctor. Andrews stated in his Presentence Investigation Report interview that he did not have a substance abuse problem and refused drug treatment when the issue was raised by the trial court at sentencing.
On May 3, 2011, Andrews reported to his probation officer, David Rogers, and was given a drug test. After the test revealed a positive result for the use of methamphetamine, Andrews denied having used the drug, asserting to Rogers that the positive result was caused by his taking one of his wife's weight loss pills. Two days later, Andrews's wife called Rogers and explained that Andrews admitted to taking methamphetamine. She reported that he was sorry for lying to Rogers, and that he had voluntarily entered a long-term drug treatment program at the Lake Cumberland Rescue Mission (" LCRM" ).
Andrews was arrested on June 7, 2011. At his probation revocation hearing, he stipulated to the violation alleged by the Commonwealth. Andrews called Rogers, who testified to the aforementioned facts regarding his probation. He also called Gary Warrick, the director of the LCRM, who testified that Andrews made progress in the program and that there was a bed available to him if he remained on probation. The trial court noted that Andrews, having been convicted of a serious drug offense and having two previous felonies on his record, denied having a drug problem and refused treatment at sentencing. Although the trial court expressed some question about whether KRS 439.3106 applied to a judge's decision on a revocation motion, it nevertheless made oral findings of fact that Andrews had violated the conditions of his probation, was a significant risk to the community, and could not be managed properly in the community.
On appeal to the Court of Appeals, Andrews argued that the trial court abused its discretion in revoking his probation. He maintained that a single positive drug test was insufficient to satisfy the conditions of KRS 439.3106(1), to wit, a probationer's violation constitutes a significant risk to prior victims or the community at large, and the probationer cannot be managed effectively in the community. The Court of Appeals agreed, concluding that the trial court abused its discretion in revoking Andrews's probation. In reversing the trial court, the Court of Appeals opined that the enactment of KRS 439.3106 " restrained the discretion of the trial courts to revoke probation" by declaring that " a failure to comply with a condition of probation is no longer sufficient to automatically justify revocation of probation." The trial court, according to the Court of Appeals, must also make specific findings under KRS 439.3106(1) regarding the risk posed to prior victims or the community and whether the probationer can be managed in the community.
This Court granted discretionary review to determine whether ...