Christopher Wise v. Commonwealth of Kentucky ( 2021 )

RENDERED: AUGUST 27, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0003-MR
CHRISTOPHER WISE APPELLANT
APPEAL FROM POWELL CIRCUIT COURT
v. HONORABLE FRANK ALLEN FLETCHER, JUDGE
ACTION NO. 16-CR-00133
COMMONWEALTH OF KENTUCKY APPELLEE
AND NO. 2020-CA-0004-MR
CHRISTOPHER WISE APPELLANT
APPEAL FROM POWELL CIRCUIT COURT
v. HONORABLE FRANK ALLEN FLETCHER, JUDGE
ACTION NO. 17-CR-00036
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: GOODWINE, McNEILL, AND L. THOMPSON, JUDGES.
McNEILL, JUDGE: Christopher Wise (“Wise”) appeals from the Powell Circuit
Court’s November 20, 20191 orders revoking his probation in Action No. 16-CR-
00133 and Action No. 17-CR-00036. Wise argues the court failed to make the
required findings under KRS2 439.3106 concerning whether his failure to comply
with the conditions of his supervision was a “significant risk to prior victims . . . or
the community at large” and whether he could be “appropriately managed in the
community[.]” After careful review, we affirm.
On April 4, 2018, Wise entered a guilty plea in Action No. 16-CR-
00133 to reckless driving, second-degree assault, and second-degree escape and
was sentenced to six years’ imprisonment. On the same day, he also entered a
guilty plea in Action No. 17-CR-00036 to theft by unlawful taking over $10,000
and was sentenced to seven years’ imprisonment to run consecutive to his sentence
in Action No. 16-CR-00133, for a total of thirteen years’ imprisonment.
The court probated these sentences on several conditions, including
that Wise report to probation, submit to random drug testing, stay out of Powell
County, and commit no further violations of the law. On June 29, 2018, the
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On December 4, 2019, the circuit court entered an amended order revoking probation to correct
a clerical error in Action No. 16-CR-00133.
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Kentucky Revised Statutes.
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Commonwealth filed a motion to revoke Wise’s probation, alleging that he had
absconded to Florida. On June 5, 2019, the court partially revoked Wise’s
probation and sanctioned him for time served. Because Wise represented he had a
job in Florida, the court ordered him to return within forty-eight hours of release
and to have his probation transferred.
However, Wise did not return to Florida and on September 22, 2019,
he was arrested in neighboring Lee County for theft of a motor vehicle registration
plate/renewal decal, speeding, no/expired registration receipt, and no/expired
registration plates. On September 25, 2019, the Commonwealth again moved to
revoke Wise’s probation, citing the new felony arrest, a positive drug screen for
opiates, admitted use of alcohol and Lortab, and failing to pay for alcohol and drug
testing as directed.
On November 20, 2019, the circuit court held a probation revocation
hearing wherein Wise’s probation officer testified to the above facts. Wise
claimed he had a prescription for the Lortab but presented no evidence at the
hearing. He further stated he had not gone back to Florida because he had lost his
job there. Following the evidence, the court revoked Wise’s probation, specifically
mentioning it had tried other alternatives to incarceration, including originally
probating Wise and the partial revocation where the court allowed him the
opportunity to return to Florida and transfer his probation. The court noted Wise
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had tested positive for opiates and had a new felony arrest for alleged theft of a
vehicle registration plate.
The court’s written orders revoking probation, entered November 20,
2019, further found “[t]hat the Defendant’s failure to comply with the conditions of
supervision constitutes a significant risk to the victim(s) of the original crime
and/or the community at large which cannot be appropriately managed in the
community.”
Wise filed a notice of appeal in both cases (Appeal No. 2020-CA-
0003-MR in Action No. 16-CR-00133 and Appeal No. 2020-CA-0004-MR in
Action No. 17-CR-00036). The Court consolidated the appeals by order entered
on March 2, 2020.
“A decision to revoke probation is reviewed for an abuse of
discretion.” Commonwealth v. Andrews, 448 S.W.3d 773, 780 (Ky. 2014) (citation
omitted). “Under our abuse of discretion standard of review, we will disturb a
ruling only upon finding that ‘the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.’” Id. (quoting
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)). “Put another way,
we will not hold a trial court to have abused its discretion unless its decision cannot
be located within the range of permissible decisions allowed by a correct
application of the facts to the law.” McClure v. Commonwealth, 457 S.W.3d 728,
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730 (Ky. App. 2015) (citing Miller v. Eldridge, 146 S.W.3d 909, 915 n.11 (Ky.
2004)).
Wise contends the circuit court abused its discretion in failing to make
findings as required by KRS 439.3106(1). Specifically, he states “[t]he record is
devoid of any express written or oral findings concerning whether Mr. Wise could
be managed within the community or how his violations constituted a significant
risk to prior victims or the community.” Wise argues a trial court is required to
make specific findings as to the evidence it relied on in revoking probation. He
further criticizes the circuit court’s use of a check-the-box form order, citing Helms
v. Commonwealth, 475 S.W.3d 637 (Ky. App. 2015).
“The first step in analyzing a probation revocation claim is to
determine whether the trial court properly considered KRS 439.3106(1) before
revoking the defendant’s probation.” Commonwealth v. Gilmore, 587 S.W.3d 627,
629 (Ky. 2019) (citation omitted). In making this determination, “we must look at
the trial court’s findings–both in open court and in its written order–to determine
whether KRS 439.3106(1) and due process requirements were met.” Id. at 630.
KRS 439.3106(1) provides in relevant part:
Supervised individuals shall be subject to . . . [v]iolation
revocation proceedings and possible incarceration for
failure to comply with the conditions of supervision
when such failure constitutes a significant risk to prior
victims of the supervised individual or the community at
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large, and cannot be appropriately managed in the
community[.]
A court must make both statutory findings, regarding risk and the
inability to be managed in the community, before revoking probation. “[W]hile
trial courts retain discretion in revoking probation, consideration of the criteria
provided in KRS 439.3106 is a mandatory prerequisite to revocation.” Richardson
v. Commonwealth, 494 S.W.3d 495, 498 (Ky. App. 2015). The essential questions
are “[w]hether the evidence of record supported the requisite findings that [Wise]
was a significant risk to, and unmanageable within, his community; and whether
the trial court, in fact, made those requisite findings.” McClure, 457 S.W.3d at
732.
Here, the circuit court made oral findings that Wise had tested positive
for opiates and been arrested for theft of a motor vehicle registration plate. It
further noted it had tried lessor sanctions when it first probated Wise and then
again when it partially revoked his probation and gave him the opportunity to
move to Florida and transfer his probation. While the court did not mention the
statutory language of KRS 439.3106 from the bench, its written order found “[t]hat
the Defendant’s failure to comply with the conditions of supervision constitutes a
significant risk to the victim(s) of the original crime and/or the community at large
which cannot be appropriately managed in the community.”
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Wise faults the circuit court’s use of a form order and argues the court
is required to make specific findings as to the evidence it relied upon in finding
that he was a significant risk or that he could not be managed in the community.
We disagree. “The statute requires a trial court to consider whether a probationer’s
failure to abide by a condition poses a significant risk to prior victims or the
community at large[;] [n]either 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 at 733 (Ky. App. 2015) (internal quotation marks and
citation omitted).
Here, the circuit court cited Wise’s probation violations both orally
from the bench and in its written order. It further made the requisite findings under
KRS 439.3106 in its written order and the evidence of record supported these
findings. Wise’s original convictions were for reckless driving, second-degree
assault, second-degree escape, and theft by unlawful taking over $10,000. He
violated his probation by absconding to Florida and then allegedly committing
another theft. This conduct combined with Wise’s prior offenses support the
findings that he is a danger to and cannot be appropriately managed in the
community. Therefore, there was no abuse of discretion.
Lastly, Wise argues that the circuit court failed to consider lessor
sanctions as required under KRS 439.3106(2).
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KRS 439.3106 permits, but does not require, a trial court
to employ lesser sanctions . . . . The elective language of
the statute as a whole creates an alternative employed and
imposed at the discretion of the trial court . . . . Nothing
in the statute or in the Supreme Court’s interpretation of
it requires the trial court to impose lesser sanctions prior
to revoking probation.”
McClure, 457 S.W.3d at 732. The circuit court did, in fact, consider whether
alternatives to revocation were appropriate, noting that Wise had already received
lessor sanctions when the court partially revoked his probation. The circuit court
did not abuse its discretion in deciding against sanctions other than incarceration.
For the foregoing reasons, we affirm the orders of the Powell Circuit
Court revoking Wise’s probation.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Travis Bewley Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky
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