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Walker v. Commonwealth

Court of Appeals of Kentucky

August 9, 2019



          BRIEFS FOR APPELLANT: Steven J. Buck

          BRIEF FOR APPELLEE: Andy Beshear, Joseph A. Newberg, II



          LAMBERT, JUDGE.

         In these consolidated appeals, Jacob Robert Walker has sought review of the orders of the Union Circuit Court revoking his probation and sentencing him to combined total of twenty years' imprisonment. Because the circuit court failed to make the mandatory findings pursuant to Kentucky Revised Statutes (KRS) 439.3106(1) prior to revoking Walker's probation, we vacate the orders on appeal.

         These appeals arose from three separate indictments returned by the Union County grand jury. In Indictment 13-CR-00026, the grand jury charged Walker with third-degree burglary, either acting alone or with another, pursuant to KRS 511.040 and with theft by unlawful taking or disposition, by complicity, pursuant to KRS 514.030. These charges arose from his action on March 19, 2013, when Walker entered a building owned by Rick Adamson and took property valued over $500.00. In Indictment 13-CR-00027, the grand jury charged Walker with first-degree burglary pursuant to KRS 511.020 and with theft by unlawful taking over $10, 000.00, for entering a business office from which he fled while armed with a deadly weapon and from which he took personal property. These offenses took place between November 25 and December 22, 2012. And in Indictment No. 14-CR-00020, the grand jury charged Walker with theft by deception pursuant to KRS 514.040 for issuing or passing a check in the amount of $3, 000.56 knowing it would not be honored. This offense took place on October 7, 2013.

         In July 2014, Walker opted to enter guilty pleas in the three cases. For the first case, Walker was found guilty as charged in the indictment, sentenced to concurrent five-year sentences, and ordered to pay restitution in the amount of $2, 700.00 to the Estate of Rick Adamson. For the second case, he was found guilty of the amended charge of second-degree burglary and theft by unlawful taking, sentenced to concurrent five- and ten-year sentences, and ordered to pay $50, 000.00 in restitution to Slaton Sprague. For the third case, Walker was found guilty of an amended charge of theft by unlawful taking under $10, 000.00, sentenced to five years' imprisonment, and ordered to pay Bud's Country Corner $3, 000.56 in restitution. The sentences were ordered to run consecutively for a total of twenty years' imprisonment.

         By agreement of the parties, the circuit court released Walker on shock probation in October 2014. He was placed under the supervision of the Division of Probation and Parole for five years and was required to abide by a list of conditions. These conditions were that he not commit another offense, avoid injurious or vicious habits, avoid disreputable people or places, work at suitable employment, support his dependents, pay costs of the proceedings as ordered by the court, contact Probation and Parole within 48 hours of his release, permit his probation officer to visit him at home or elsewhere, answer the probation officer's reasonable questions and promptly notify the officer of any change in address or employment, pay a $500.00 supervision fee at a rate of $25.00 per month, and possess no weapons.

         In June 2017, a probation officer filed a violation of supervision report, indicating that Walker had been discharged from CenterPoint Recovery for Men for misconduct. Walker left the program on his own and against advice of staff, and he failed to contact his probation officer regarding the discharge. In addition, Walker had been under investigation for abusing prescription medication and for having a cell phone in violation of the program rules. A bench warrant was issued, and Walker was arrested shortly thereafter. Following a hearing the next month, the court revoked Walker's probation for absconding from supervision and for his failure to complete the treatment program as directed. The court re-imposed Walker's original sentence.

         In August 2017, the court again released Walker on shock probation by agreement of the parties. He was placed on probation for five years under conditions that this time included that he report directly to and complete the Adult Drug Court program. He was to follow all of the rules and regulations of the program, permit staff to visit him at home or elsewhere, and answer staff members' reasonable inquiries and notify them of any change in his address or employment. The order specifically stated that if Walker were to be terminated from the program for any reason or if he voluntarily withdrew from the program, a motion to revoke his probation would be filed.

          On May 1, 2018, an arrest warrant for Walker was issued based upon a violation of the terms of his probation, and he was arrested the same day. On May 14, 2018, the circuit court held a probation revocation hearing. Krista Massey testified that she worked as a case specialist for the Drug Court, and she stated that Walker had been terminated from the program. Walker had been sent to Men's Addiction Recovery Campus (MARC) in Bowling Green as a sanction for several dirty drug screens. He was discharged from the program for falsely stating that he had been diagnosed with cancer and refusing to sign the documents to permit staff members to access his medical records to prove that assertion. The Drug Court program then terminated him when it received the medical records that did not show any cancer diagnosis. On cross-examination, Ms. Massey stated that she knew the medical provider informed Walker and another MARC staff member who had accompanied him to the office that he had thirty days to provide his medical records. And while Walker originally was going to permit the staff member to attend his next appointment with him, he later changed his mind, stating it was none of his business. Ms. Massey got updates through a liaison, not from contact from Walker. She knew he was supposed to have a bronchoscopy on May 2, 2018, but he had been discharged from the program the day before that when he was arrested. Walker did not get to attend the appointment.

          In his own testimony, Walker denied that he told anyone that he had cancer. Rather, he had been told that if he continued to cough up blood, he may have cancer. He said he signed a release so that the MARC staff member could get the medical records. He also explained that his mother planned to accompany him to the bronchoscopy. Because he could only have one person accompany him, he told the staff member that he could not accompany him.

         At the conclusion of the hearing, counsel for Walker asked the court to "rewind" and to permit the Drug Court to hold a hearing regarding his termination from the program. The Commonwealth argued that Walker had had four or five different compliance issues, and the issue here was his honesty. Walker, it asserted, wanted to set up a case to be medically discharged so that he would not have to finish the program. The Commonwealth pointed out that there is no due process requirement in the Drug Court program or any other treatment facility. The court began its oral findings by stating its belief that honesty is the most important thing for a Drug Court participant. It went on to review the records from Sahetya Medical Group, noting that none of the records mentioned a possibility that Walker might have cancer.[1] The history he provided, the court observed, did not match the history he provided to the treatment facility.[2] The court could not deal with Walker's dishonesty, recognized his past sanctions and the ...

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