REVIEW FROM COURT OF APPEALS CASE NOS. 2017-CA-000517-MR,
2017-CA-000533-MR PULASKI CIRCUIT COURT NOS. 16-CR-00002,
COUNSEL FOR APPELLANT: Andy Beshear Attorney General of
Kentucky Leilani K.M. Martin Assistant Attorney General
COUNSEL FOR APPELLEE: Steven Goens Department of Public
Commonwealth of Kentucky appeals the Court of Appeals'
decision reversing and remanding the trial court's order
revoking Appellee Sherry Gilmore's probation and imposing
her cumulative sentence of thirty years' imprisonment in
accordance with her consolidated guilty pleas. We reverse the
Court of Appeals' decision and find that the trial court
complied with KRS439.3106 and our holding in
Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014),
in making sufficient oral and written findings supporting its
decision to revoke Gilmore's probation.
Factual and Procedural Background.
2016, Gilmore pled guilty under two separate indictments.
Under the first indictment, she pled guilty to two counts of
Trafficking in a Controlled Substance, First Degree, First
Offense and was sentenced to ten years' imprisonment.
Under the second indictment, she pled guilty to two counts of
Knowingly Exploiting an Adult, Resulting in a Total Loss to
the Adult of more than $300 and was sentenced to serve twenty
years' imprisonment. The trial court ordered both
sentences to be served consecutively, but suspended each
sentence, placing Gilmore on strict five-year conditional
October 2016, the Commonwealth filed for probation revocation
based on affidavits submitted by Gilmore's Probation and
Parole Officer, Michael Grigsby. Off. Grigsby's
affidavits indicated that Gilmore failed a drug screen on
September 15, 2016, lied about using drugs, failed to comply
with medical treatment, failed to cooperate with a parole
officer, claimed to have several medical conditions during
her presentence investigation without providing any
documentation or proof of such ailments, and absconded from
supervision. The Commonwealth filed a second motion to revoke
prior to Gilmore's revocation hearing alleging that she
had committed the offense of First-Degree Trafficking in a
Controlled Substance while on probation.
February 2017, the trial court held a probation revocation
hearing. Off. Grigsby testified that Gilmore had initially
tested positive for methamphetamine use. Instead of seeking
revocation, Off. Grigsby offered "both inpatient and
outpatient treatment, [and] she declined both of these."
Following this discussion, Gilmore absconded from
supervision. Gilmore testified that during this period she
was being held against her will and forced to sell drugs and
engaged in prostitution. After her testimony, the
Commonwealth cross-examined Gilmore about a pending
trafficking charge where she was recorded selling drugs while
she absconded from probation.
Off. Grigsby and Gilmore's testimony the trial court made
the following findings from the bench:
Why aren't any of these other people here to lend any
support whatsoever? I have only heard the most general
assertions. It's impossible to confirm any of the
information. . . .
Not one piece of supporting evidence to support any of that.
They are the most generalized types of assertions, which make
it, frankly difficult for me to give any credence to your
story. What I do know is you were using methamphetamine,
we've got the lab confirmed positive test for that, and
even you admit you were committing other offenses during this
period of time.
I am going to . . . revoke your probation and impose the
sentence. . . . I have no difficulty at this point in
concluding that you did violate all the terms and conditions
[of your probation] as alleged by using methamphetamine, and
by providing false information, failing to comply with
treatment recommendations, failing to cooperate, and ,
absconding. In addition, it appears that you have picked up a
couple of additional charges we need to arraign you on. ...
I'll enter the order revoking, make factual findings
consistent with the need for incarceration and that I cannot
adequately supervise her within the community.
subsequent written order revoking probation listed the
charges and corresponding sentences Gilmore would ...