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Lainhart v. Commonwealth

Court of Appeals of Kentucky

November 9, 2017

SONYA LAINHART APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

         APPEAL FROM JACKSON CIRCUIT COURT HONORABLE OSCAR GAYLE HOUSE, JUDGE ACTION NO. 13-CR-00085

          BRIEFS FOR APPELLANT: Shannon Dupree Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Mark D. Barry Assistant Attorney General Frankfort, Kentucky

          BEFORE: COMBS, JOHNSON, AND D. LAMBERT, JUDGES.

          OPINION

          JOHNSON, JUDGE:

         Sonya Lainhart ("Lainhart") appeals from an order voiding her pretrial diversion and imposing her three-year sentence for flagrant nonsupport. She argues that the Jackson Circuit Court, in voiding her diversion agreement, made insufficient findings of fact under both Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014), and Commonwealth v. Marshall, 345 S.W.3d 822 (Ky. 2011). We agree, and must therefore VACATE AND REMAND for the court to make the required findings.

         BACKGROUND

         The facts leading up to the voidance of Lainhart's pretrial diversion are not in dispute. Lainhart pleaded guilty to flagrant nonsupport on September 2, 2014, for which she was placed on felony diversion for five years and ordered to pay arrearages in the amount of $13, 021.10, at a rate of $125.00 per month. In April 2015, the Commonwealth moved to set aside the pretrial diversion order, alleging Lainhart had failed to make all of the required child support payments.

         At an August 2, 2016 hearing, Jessie Weaver, an employee of the Jackson County Child Support Office, testified that Lainhart was placed on felony diversion on December 3, 2014. Since that time, Lainhart had only made ten child support payments for a total of $1, 190.00. She made six payments in 2015 and four payments in 2016. Lainhart's last payment was $160.00 on June 8, 2016.

         Lainhart testified in her defense and explained that she has suffered from chronic obstructive pulmonary disease (COPD) since 2007. She has been under the care of Dr. David Hayes, who placed her on complete work restriction six months prior. Before she was placed on work restriction, she had trouble finding a job because she did not have a high school diploma and because she had a felony conviction on her record. Lainhart testified that she has signed up for, but has not yet received, disability income. She stated that she currently lived with her parents and to date they had made all of her child support payments.

         Following Lainhart's testimony, the court found that Lainhart had entered into a diversion agreement, failed to pay, and could not effectively be managed in the community because she did not "do what she was supposed to do." The court then voided Lainhart's diversion agreement and Lainhart was taken into custody. In its subsequent written order, the trial court found that Lainhart had violated the conditions of her pretrial diversion because she failed to pay child support as agreed when she pleaded guilty and signed her pretrial diversion agreement. The court concluded that Lainhart could not be managed in the community because she "won't do as she agreed." This appeal followed.

         STANDARD OF REVIEW

         On appeal, Lainhart argues the court, in voiding her diversion agreement, failed to make the requisite findings of fact under both Andrews and Marshall. However, Lainhart failed to object to either of the alleged errors at the court, and therefore they are not preserved for review. Nevertheless, Lainhart believes that the errors were palpable under Kentucky Rules of Criminal Procedure (RCr) 10.26, which provides:

A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a ...

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