De'quon Smith v. Commonwealth of Kentucky ( 2023 )

RENDERED: JANUARY 27, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0359-MR
DE’QUON SMITH APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
v. HONORABLE KATHLEEN S. LAPE, JUDGE
ACTION NO. 19-CR-01227
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND MCNEILL, JUDGES.
MCNEILL, JUDGE: In 2019, Appellant, De’Quon Smith (Smith), was indicted in
Kenton County, Kentucky, on one count of first-degree trafficking in a controlled
substance, Fentanyl, with a firearm; one count of trafficking in a controlled
substance, marijuana, with a firearm; possession of handgun by a convicted felon;
and for being a second-degree persistent felony offender (PFO-2). On August 24,
2020, Smith pled guilty to two counts of prohibited acts relating to a controlled
substance, and to the PFO-2 charge. The Kenton Circuit Court sentenced Smith to
serve a total of 15 years’ incarceration, probated for five years. The terms of
probation, inter alia, also required Smith to serve 180 days in the Kenton County
Detention Center with credit for time served; obey standard rules and regulations
of the Probation and Parole Department pursuant to KRS1 439.553; be subjected to
a system of graduated sanctions to be imposed by the Probation and Parole
department; and to commit no criminal act.
Smith violated the terms of his probation on several occasions,
involving violence or threats of violence. The Commonwealth unsuccessfully
sought to revoke probation. However, after it became clear that Smith absconded
from supervision and was a threat to the community, the court revoked his
probation. He was sentenced to serve 15 years’ incarceration, with credit for time
served. Smith now appeals to this Court as a matter of right. He raises the
following issues on appeal: 1) the Commonwealth failed to prove a willful
probation violation for absconding by a preponderance of the evidence; 2) the
circuit court abused its discretion when it failed to apply KRS 439.3106; and 3)
that the sentence imposed was illegal.
1
Kentucky Revised Statutes.
-2-
STANDARD OF REVIEW
“Revocation of probation does not require proof beyond a reasonable
doubt. The Commonwealth’s burden is to prove by a preponderance of the
evidence that the defendant violated the conditions of his or her probation.” Helms
v. Commonwealth, 475 S.W.3d 637, 641 (Ky. App. 2015) (citation omitted). We
review probation revocation determinations for an abuse of discretion.
Blankenship v. Commonwealth, 494 S.W.3d 506, 508 (Ky. App. 2015). An abuse
of discretion occurs when the trial court’s decision in “arbitrary, unreasonable,
unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993
S.W.2d 941, 945 (Ky. 1999).
ANALYSIS
A revocation hearing was conducted on February 21, 2022. Ohio
Probation and Parole Officer Kristin Abbott testified at length about her
supervision of Smith after his probation was transferred from Kentucky to Ohio.
Due to his misconduct while on probation, Officer Abbott informed Smith over the
telephone that “he needed to turn himself in.” Smith replied that he needed to
speak with his lawyer first and “they would have to catch [him] on the streets.”
Smith then hung up on Officer Abbott. Thereafter, Smith never reported or
-3-
contacted her, and it appears that she was unable to supervise him any further.2
Therefore, we conclude that there was a preponderance of evidence that Smith
absconded from supervision, as determined by the circuit court in its revocation
order. We now turn to KRS 439.3106(1), which:
requires trial courts to consider whether a probationer’s
failure to abide by a condition of supervision constitutes
a significant risk to prior victims or the community at
large, and whether the probationer cannot be managed in
the community before probation may be revoked.
Commonwealth v. Andrews, 448 S.W.3d 773, 780 (Ky. 2014). “Neither KRS
439.3106 nor Andrews require anything more than a finding to this effect
supported by the evidence of record.” McClure v. Commonwealth, 457 S.W.3d
728, 733 (Ky. App. 2015).
First, the circuit court’s revocation order indicates that KRS
439.3106(1) was satisfied here. Second, there was significant evidence of record
supporting the court’s findings. For example, Officer Abbott testified that Smith
choked his girlfriend, Mariah Stone, at a taco shop, and threatened an employee
there. The shop’s surveillance video was played at the revocation hearing
depicting the incident. At the conclusion of the revocation hearing, the judge
orally ruled that Smith’s actions on the video were completely unacceptable in
2
The record also indicates that on a prior occasion while on probation, Smith traveled to
Georgia without permission and failed to report to his probation officer.
-4-
society, and that Smith could not be adequately supervised in the community.
Abbott also testified concerning additional allegations of criminal conduct alleged
against Smith, and that there were previous warrants out for his arrest for assault
and criminal damaging. Based on the foregoing, we conclude that the circuit court
properly considered KRS 439.3106.
Lastly, in support of his argument that his sentence was illegal, Smith
relies on Moreland v. Commonwealth, No. 2021-CA-0621-MR, 2022 WL
1051762, at *1-3 (Ky. App. Apr. 8, 2022), discretionary review granted (Sep. 14,
2022). The present case is distinguishable from Moreland because the sentence at
issue here is permitted under KRS 533.010. In sum, we cannot conclude that the
circuit court abused its discretion by revoking Smith’s probation, or that his
sentence was illegal.
CONCLUSION
For the foregoing reasons, we AFFIRM the Kenton Circuit Court’s
Order Revoking Probation entered on March 1, 2022.
ALL CONCUR.
-5-
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Chase A. Cox Daniel Cameron
Covington, Kentucky Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
-6-