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Burnett v. Commonwealth

Court of Appeals of Kentucky

October 27, 2017



          BRIEFS FOR APPELLANT: Shannon Dupree Assistant Public Advocate Frankfort, Kentucky.

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky John Paul Varo Assistant Attorney General Frankfort, Kentucky.



          DIXON, JUDGE

         Joshua Burnett[1] appeals from an order of the Jackson Circuit Court voiding his pretrial diversion and sentencing him to two years' imprisonment. For the reasons set forth herein, we vacate and remand for the circuit court to enter additional findings of fact.

         After Burnett accrued a child support arrearage for his three children in the amount of $15, 056.80, he pleaded guilty to flagrant non-support. In exchange for Burnett's plea, the Commonwealth recommended a sentence of two years' imprisonment, to be diverted for five years. Burnett was also required to pay $250.94 per month toward his arrearage amount, in addition to his current child support obligation.[2] Thereafter, the circuit court entered an order placing him on Class D Felony Pretrial Diversion.

         Approximately three months later, the Commonwealth filed the first of a series of motions to set aside Burnett's plea agreement due to his failure to pay the arrearage amount. On August 2, 2016, the circuit court held a hearing on the matter. The Commonwealth's sole witness was Jessie Weaver of the Jackson County Child Support Office. She testified that Burnett paid $24, 713.57 in child support, some payments of which were voluntary and some were involuntary. The child support office received monthly assignments when there was a wage assignment in effect, but those payments ceased on December 8, 2015. Since that time, the child support office had only received three voluntary payments - in the amounts of $400.00, $350.00 and $103.03 - and one involuntary payment - in the amount of $45.34. Burnett, however, still had an outstanding arrearage amount of $11, 435.98.

         Burnett also testified at the hearing. He moved to Texas to work in the oil industry prior to December 2015. Then, the work "slowed down" because the price of oil dropped. Subsequently, his wife's father became sick, and they moved back to Kentucky to care for him, leaving behind their vehicle. Lack of transportation temporarily impaired his employment options. In mid-March, Burnett acquired a car and was able to look for work. Though he found part-time work within a few weeks, he received a job in July which later became full-time. He hoped to transition into another job in the future so that a wage assignment could be put into place. At the conclusion of the hearing, the circuit court voided Burnett's pretrial diversion, finding that Burnett could not be effectively managed in the community because "[he] won't do what [he] agreed to and [was] ordered to do by the court." This appeal follows.

         On appeal, Burnett argues that the circuit court palpably erred when it failed to make findings under one element of Commonwealth v. Andrews, 448 S.W.3d 773, 780 (Ky. 2014) and both elements of Commonwealth v. Marshall, 345 S.W.3d 822 (Ky. 2011). We agree.

         Kentucky Revised Statutes (KRS) 533.256(2) provides the proper standard courts must apply in determining whether to void a pretrial diversion: "In making a determination as to whether or not a pretrial diversion agreement should be voided, the court shall use the same criteria as for the revocation of probation, and the defendant shall have the same rights as he or she would if probation revocation was sought." The appellate standard of review of a decision to revoke a defendant's probation is whether the circuit court abused its discretion. Commonwealth v. Lopez, 292 S.W.3d 878, 881 (Ky. 2009). Under the abuse of discretion standard, the circuit court's decision must be "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)).

         Burnett first argues that the circuit court erred when it failed to consider the mandatory criteria for voiding a defendant's pretrial diversion under Andrews and Kentucky Revised Statute (KRS) 439.3106. KRS 439.3106 provides that defendants on probation shall be subject to:

(1) 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
(2) 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 ...

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