FROM GRAVES CIRCUIT COURT HONORABLE TIMOTHY C. STARK, JUDGE
ACTION NO. 13-CR-00008
FOR APPELLANT: John Gerhart Landon Frankfort, Kentucky
FOR APPELLEE: Andy Beshear Attorney General of Kentucky John
Paul Varo Assistant Attorney General Frankfort, Kentucky
BEFORE: ACREE, COMBS, AND MAZE, JUDGES.
OPINION VACATING AND REMANDING
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 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.
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.
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
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.
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.
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.
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.
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.
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