FROM PERRY CIRCUIT COURT HONORABLE ALISON C. WELLS, JUDGE
ACTION NO. 17-CR-00175
FOR APPELLANT: Shannon Dupree Assistant Public Advocate
FOR APPELLEE: Andy Beshear Attorney General of Kentucky
Lauren R. Massie Assistant Attorney General Frankfort,
BEFORE: GOODWINE, NICKELL, AND SPALDING, JUDGES.
Dale New appeals from an August 2018 order of the Perry
Circuit Court revoking his probation. We affirm.
relevant facts are uncontested. In October 2017, New plead
guilty to one count of criminal possession of a forged
instrument in the second degree and was sentenced to five
years' imprisonment, probated for three years. As a
condition of probation, New was ordered to "complete and
graduate from the Perry County Drug Court." New
repeatedly ran afoul of the drug court's expectations. In
December 2017, he was ordered to complete a short-term
substance abuse program after having two positive drug tests.
In March 2018, he was jailed for forty-eight hours and had to
complete sixty hours of community service for providing false
paperwork. In May 2018, he was jailed for seven days for
again using drugs. And, finally, he was terminated from drug
court on August 1, 2018, after he admitted to again using
trial court conducted a probation revocation hearing on
August 9, 2018, at which there was no live testimony.
Instead, the court recited New's drug court infractions,
after which New stipulated to the facts and asked to receive
long-term substance abuse treatment in lieu of revocation.
The Commonwealth then argued revocation was proper as
New's history demonstrated he could not control his
behavior. Without elaboration, the trial court orally found
New could not be managed in society and presented a danger to
himself and others, revoked his probation, and sentenced him
to five years' imprisonment. New did not ask for
additional findings or ask to present any witnesses. After
the trial court issued a written judgment of revocation, New
filed this appeal.
court has discretion in probation revocation matters but must
exercise its discretion "consistent with statutory
criteria." Commonwealth v. Andrews, 448 S.W.3d
773, 780 (Ky. 2014). Specifically, before revoking probation
a trial court must make two findings under Kentucky Revised
Statutes (KRS) 439.3106(1): (1) whether the alleged probation
violation "constitutes a significant risk to prior
victims of the supervised individual or the community at
large" and (2) whether the defendant "cannot be
appropriately managed in the community[.]" A trial court is
not required to provide explanations for those findings;
instead, it must only make the findings, which must be
"supported by the evidence of record." McClure
v. Commonwealth, 457 S.W.3d 728, 733 (Ky. App. 2015). We
review a trial court's revocation decision for abuse of
discretion. Andrews, 448 S.W.3d at 780. "And
for a trial court's decision to be an abuse of
discretion, we must find that the decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal
principles." Clark v. Commonwealth, 223 S.W.3d
90, 95 (Ky. 2007) (internal quotation marks and citation
New cites to no authority to support his argument the trial
court erred by revoking his probation instead of sending him
to long-term rehabilitation. We have specifically held
"KRS 439.3106 permits, but does not require, a trial
court to employ lesser sanctions" and so
"incarceration remains a possibility."
McClure, 457 S.W.3d at 732. Thus, New's argument
the court erred by not imposing a lesser sanction is without
merit, especially since New had already received lesser
sanctions multiple times.
reject New's fleeting argument the trial court spent
insufficient time on the revocation proceedings. The facts
were stipulated-the only issue was what sanction would be
imposed-and New did not seek to present additional
testimonial or documentary evidence.
New errs to the extent he argues the court was required to
provide explanations for its findings. Id. at 733.
New's seeming argument to the contrary notwithstanding,
we did not require detailed findings in Helms v.
Commonwealth, 475 S.W.3d 637 (Ky. App. 2015). In
Helms, we stated "perfunctorily reciting the
statutory language in KRS 439.3106 is not enough."
Id. at 645. But the overwhelming focus of our
opinion was discussing the propriety of revocation based on a
"zero-tolerance provision." And so, in
Helms we determined the trial court erred by
revoking based upon the zero-tolerance provision, not because
it perfunctorily recited the language of KRS
leads us directly to the final issue: whether the KRS
439.3106 findings here are supported by the record. While on
probation, New repeatedly used drugs and submitted falsified
paperwork to the drug court. "These facts constituted
substantial support for the conclusion that a person who
would go to such lengths to continue using a substance he was
forbidden to use under penalty of five years in prison posed
a significant risk to, and was unmanageable within, the
community in which he lived." McClure, ...