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Fazzari v. Commonwealth

Court of Appeals of Kentucky

April 26, 2019



          BRIEF FOR APPELLANT: John Gerhart Landon Frankfort, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky John Paul Varo Assistant Attorney General Frankfort, Kentucky



          ACREE, JUDGE:

         Dani Fazzari appeals the Graves Circuit Court's March 8, 2017 order revoking her conditional discharge. Fazzari argues the trial court's decision cannot stand because it failed to consider, as required by KRS[1] 439.3106, whether her violations were a significant risk to her prior victim or the community at large, and whether she could be appropriately managed in the community. After our review, we vacate and remand.

         On December 9, 2013, Fazzari pleaded guilty to felony flagrant non-support. Pursuant to her plea agreement, Fazzari agreed to pay current child support in the amount of $35 per week, and to make regular installment payments in the amount of $153 per month on her accumulated child support arrearage of $9, 180.00. The trial court sentenced Fazzari to five years' imprisonment, conditionally discharged for five years subject to numerous conditions, including that she remain current on her child support obligations and make specific monthly payments on the arrearage.

         On May 20, 2015, the Commonwealth moved to revoke Fazzari's conditional discharge based on her failure to comply with her child support payment conditions. The Commonwealth stated in its motion that Fazzari had not made any payments since March 4, 2015, and that she was $2, 598.00 behind in payments since sentencing in December 2013. This began a series of court appearances spanning nearly two years. A clear pattern developed during that time: the trial court would order Fazzari to make a certain number of timely payments and set a future court date to determine if she complied. Fazzari would make few, if any, of the required payments and then, right before the scheduled court date, Fazzari would make several payments or a lump sum payment sufficient to convince the trial court to continue the matter rather than revoke her conditional discharge.

         At Fazzari's first appearance on June 8, 2015, she stated she had made a $200 payment shortly before her court date. Fazzari also stated she had undergone two surgeries that had kept her from working, but she had recently obtained a part-time job and was starting a second part-time job at Pizza Hut. The trial court ordered her to set up a wage assignment and continued the motion.

         At her next court appearance in September 2015, Fazzari indicated she was no longer working at Pizza Hut and had changed employment a few times. She recognized her payments had not been "the most consistent" and asked for another chance. The trial court ordered her to make four payments by her next court date.

         On January 1, 2016, Fazzari again appeared before the trial court. She did not make four timely payments. Instead, the day before the hearing she tendered a money order to cover all four payments. The Commonwealth stated Fazzari's total payment was still less than it should have been paid, and that she was still approximately $3, 200 short of being in compliance with the terms of her conditional discharge. The trial court ordered Fazzari to make six payments by her next court date.

         On February 22, 2016, Fazzari indicated she had made three payments since her last court date and was making a fourth that day. She claimed confusion about the payment schedule and asked the trial court for a schedule identifying exactly what and when she was supposed to pay. The trial court obliged, ordering Fazzari to pay $70.30 (a combination of her current support and arrearage obligations) every Friday until the next court date.

         By the next court date, April 4, 2016, Fazzari had failed to make the required payments on time and as ordered by the trial court. Instead, she tendered three payments on April 1, 2016, three days before her court appearance. Fazzari came again before the trial court on May 2, 2016. She stated she timely made all the payments due between the April and May court dates and in the proper amount. The trial court warned Fazzari she needed to continue making her weekly payments and removed the Commonwealth's motion from its docket.

         Two months later, the Commonwealth filed another motion to revoke Fazzari's conditional discharge. It indicated that, as soon the trial court removed the matter from its docket, Fazzari quit making child support payments. In fact, she made no payments from May 3, 2016, to July 1, 2016, and was at that ...

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