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Hall v. Commonwealth

Court of Appeals of Kentucky

December 7, 2018

DOUGLAS R. HALL APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          APPEAL FROM PERRY CIRCUIT COURT HONORABLE WILLIAM ENGLE III, JUDGE ACTION NO. 07-CR-00035

          BRIEF FOR APPELLANT: Karen Shuff Maurer Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky.

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky.

          BEFORE: ACREE, COMBS, AND MAZE, JUDGES.

          OPINION

          MAZE, JUDGE:

         Douglas 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, we affirm.

         The 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 each other.

         Hall 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 court.

         Hall 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.

         Upon 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 facility.

         On 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.

         We 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).

         On appeal, Hall contends that the trial court failed to make sufficient findings as required by KRS[1] 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.

         While 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 ...


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