FROM JACKSON CIRCUIT COURT HONORABLE OSCAR GAYLE HOUSE, JUDGE
ACTION NO. 13-CR-00085
FOR APPELLANT: Shannon Dupree Assistant Public Advocate
Department of Public Advocacy Frankfort, Kentucky
FOR APPELLEE: Andy Beshear Attorney General of Kentucky Mark
D. Barry Assistant Attorney General Frankfort, Kentucky
BEFORE: COMBS, JOHNSON, AND D. LAMBERT, JUDGES.
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
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.
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.
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
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.
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
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 ...