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Commonwealth v. Gilmore

Supreme Court of Kentucky

October 31, 2019

COMMONWEALTH OF KENTUCKY APPELLANT
v.
SHERRY GILMORE APPELLEE

          ON REVIEW FROM COURT OF APPEALS CASE NOS. 2017-CA-000517-MR, 2017-CA-000533-MR PULASKI CIRCUIT COURT NOS. 16-CR-00002, 16-CR-00171

          COUNSEL FOR APPELLANT: Andy Beshear Attorney General of Kentucky Leilani K.M. Martin Assistant Attorney General

          COUNSEL FOR APPELLEE: Steven Goens Department of Public Advocacy

          OPINION

          VANMETER JUSTICE.

         The 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 KRS[1]439.3106 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.

         I. Factual and Procedural Background.

         In 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 supervised probation.

         In 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.

         In 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.

         Following 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.

         The subsequent written order revoking probation listed the charges and corresponding sentences Gilmore would ...


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