DOUGLAS R. HALL APPELLANT
COMMONWEALTH OF KENTUCKY APPELLEE
FROM PERRY CIRCUIT COURT HONORABLE WILLIAM ENGLE III, JUDGE
ACTION NO. 07-CR-00035
FOR APPELLANT: Karen Shuff Maurer Assistant Public Advocate
Department of Public Advocacy Frankfort, Kentucky.
FOR APPELLEE: Andy Beshear Attorney General of Kentucky
Courtney J. Hightower Assistant Attorney General Frankfort,
BEFORE: ACREE, COMBS, AND MAZE, JUDGES.
R. Hall appeals from an order of the Perry Circuit Court
revoking his probation and sentencing him to his remaining
three-year term. Hall argues that the trial court failed to
make the required findings to revoke his probation, and that
its decision to revoke his probation amounted to an abuse of
discretion. We conclude that the trial court made sufficient
findings which were supported by substantial evidence. Hence,
relevant facts of this action are not in dispute. On December
13, 2007, Hall entered a guilty plea to the charges of
second-degree criminal possession of a forged instrument,
theft by deception under $300, and fraudulent use of credit
cards over $100 within a six-month period. The court
sentenced Hall to five years on each count, with two years on
each count to serve and the remaining three years probated
for five years or until restitution was paid. The court
further specified that the terms would run concurrently with
was paroled on May 12, 2008. In 2009, the trial court issued
a probation violation warrant due to Hall's failure to
make restitution payments and his failure to appear in court.
The court ultimately ordered Hall to serve ninety days in
jail for the violation. Thereafter, in October 2009, Hall
failed to complete a drug test and then absconded to Florida.
On December 9, 2009, the trial court entered an order finding
Hall in contempt for failure to comply with orders of the
was picked up in Florida on July 24, 2016, and was returned
to Kentucky. After serving time as a state inmate, Hall was
released on probation on December 1, 2016. The terms of his
release required Hall to pay $50 per month toward the
outstanding restitution. Hall was granted permission to
travel to Florida in late January of 2017.
his return from Florida, Hall admitted to his probation
officer that he had used numerous controlled substances. He
also tested positive for cocaine. At the probation revocation
hearing on March 1, 2017, the court found that Hall had
violated probation based by testing positive for controlled
substances. The court also noted that, while Hall had made
restitution payments since his release, he had made no
payments since his most-recent trip to Florida. The trial
court ordered Hall's probation extended for a period of
three years and ordered him to attend a long-term treatment
March 30, 2017, Hall again appeared in court for another
probation violation hearing. Hall's attorney advised the
court that Hall refused to attend the long-term treatment
program. Counsel further advised that, given the options
attending treatment or revocation, Hall preferred revocation.
Based on Hall's admitted violations and his refusal to
comply with the conditions of his supervision, the trial
court revoked his probation and ordered him to serve out his
remaining three-year sentence. The trial court also ordered
Hall to pay the remaining balance of his restitution within
ninety days of his release. Hall now appeals from this order.
review a trial court's decision to revoke probation for
an abuse of discretion. Tiryung v. Commonwealth, 717
S.W.2d 503, 504 (Ky. App. 1986). To amount to an abuse of
discretion, the trial court's decision must be
"arbitrary, unreasonable, unfair, or unsupported by
sound legal principles." Clark v. Commonwealth,
223 S.W.3d 90, 95 (Ky. 2007) (citing Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1999)). Absent a
"flagrant miscarriage of justice," the trial court
will be affirmed. Gross v. Commonwealth, 648 S.W.2d
853, 858 (Ky. 1983).
appeal, Hall contends that the trial court failed to make
sufficient findings as required by KRS 439.3106. The
Kentucky Supreme Court interpreted the statute's
requirements in Commonwealth v. Andrews, 448 S.W.3d
773 (Ky. 2014). The Court emphasized that "[w]ithout
question, the power to revoke probation is vested in the
trial courts and in the trial courts alone."
Id. at 777. However, the Court went on to hold that
KRS 439.3106 "requires as conditions precedent to
revocation that the probationer's failure to comply with
the terms of probation constitutes 'a significant risk to
[his] prior victims . . . or the community at large,' and
that the probationer 'cannot be appropriately managed in
the community.'" Id. Hall contends that the
trial court's order does not explicitly reference the
statutory findings, and that Commonwealth presented
insufficient evidence to support a conclusion that revocation
was necessary or appropriate.
the trial court's order does not precisely parallel the
language of KRS 439.3106, we conclude that the trial
court's order sets out the findings ...