FROM JACKSON CIRCUIT COURT HONORABLE OSCAR GAYLE HOUSE, JUDGE
ACTION NO. 13-CR-00075
FOR APPELLANT: Erin Hoffman Yang Department of Public
Advocacy Frankfort, Kentucky
FOR APPELLEE: Andy Beshear Attorney General of Kentucky Bryan
D. Morrow Assistant Attorney General Frankfort, Kentucky
BEFORE: JONES, J. LAMBERT, AND STUMBO, JUDGES.
LAMBERT, J., JUDGE
Price appeals from a Jackson Circuit Court order voiding his
diversion agreement. After careful review, we vacate and
remand for the trial court to enter additional findings.
2007 and 2013, Price accrued a child support arrearage of
$22, 496.64. After he was indicted for flagrant nonsupport,
he entered into a pretrial diversion agreement in which he
agreed to repay $31, 506.56. Although Price was required to
pay $523.10 per month beginning January 2016, he only paid a
total of $244.00 for the period between January and August.
Thereafter, the Commonwealth moved to void Price's
circuit court held a hearing on the matter on August 2, 2016.
Price testified at that hearing. Although he had obtained a
construction job when he signed the pretrial diversion
agreement, he had lost his job because it required him to
have a driver's license. Since June 25, 2016, however,
Price had been employed as a painter and had paid a portion
of his check toward his child support obligation. The circuit
court found that Price could not be managed in the community
because he did not abide by the terms of his pretrial
diversion agreement. The court voided Price's pretrial
diversion and sentenced him to three years' imprisonment.
This appeal follows.
makes the following arguments on appeal: (1) the circuit
court's finding that he could not be managed in the
community was arbitrary; (2) the circuit court failed to
consider alternative sanctions; and (3) the circuit court
failed to consider his ability to pay before voiding his
pretrial diversion agreement. We vacate and remand for the
circuit court to enter findings under Commonwealth v.
Andrews, 448 S.W.3d 773, 781 (Ky. 2014), and
Commonwealth v. Marshall, 345 S.W.3d 822, 833 (Ky.
Revised Statutes (KRS) 533.256 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." KRS
533.256(2). "An appellate court reviews a trial
court's decision to revoke a defendant's probation
for an abuse of discretion." Lucas v.
Commonwealth, 380 S.W.3d 554, 555 (Ky. App. 2012).
"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).
Price argues that the circuit court abused its discretion
under Andrews, supra, when it voided his
pretrial diversion. KRS 439.3106, a part of HB 463 adopted by
the legislature in 2011, 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 offender to remain compliant and crime-free in the
Kentucky Supreme Court has explained that "KRS
439.3106(1) requires trial courts to consider whether a
probationer's failure to abide by a condition of
supervision constitutes a significant risk to prior victims
or the community at large, and whether the probationer cannot
be managed in the community before probation may be
revoked." Andrews, 448 S.W.3d at 780. By
requiring the trial court to make such a determination,
"the legislature furthers the objectives of the
graduated sanctions schema to ensure that probationers are
not being incarcerated for minor probation violations."
Id. at 779. The Andrews Court also stressed
that HB 463 "does not upend the ...