FROM JACKSON CIRCUIT COURT HONORABLE OSCAR GAYLE HOUSE, JUDGE
ACTION NO. 11-CR-00095
FOR APPELLANT: Shannon Dupree Assistant Public Advocate
FOR APPELLEE: Andy Beshear Attorney General of Kentucky John
Paul Varo Assistant Attorney General Frankfort, Kentucky.
BEFORE: KRAMER, CHIEF JUDGE; DIXON AND NICKELL, JUDGES.
Burnett 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.
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. Thereafter, the circuit court entered an
order placing him on Class D Felony Pretrial Diversion.
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.
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.
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.
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)).
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