Terry Jenkins v. Commonwealth of Kentucky ( 2021 )

RENDERED: JANUARY 29, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1464-MR
TERRY JENKINS APPELLANT
APPEAL FROM HARLAN CIRCUIT COURT
v. HONORABLE KENT HENDRICKSON, JUDGE
ACTION NO. 13-CR-00013
COMMONWEALTH OF KENTUCKY APPELLEE
AND NO. 2019-CA-1466-MR
TERRY JENKINS APPELLANT
APPEAL FROM HARLAN CIRCUIT COURT
v. HONORABLE KENT HENDRICKSON, JUDGE
ACTION NO. 13-CR-00551
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND JONES, JUDGES.
JONES, JUDGE: Terry Jenkins appeals the order revoking his probation
following various violations. Following review of the record and all applicable
law, we affirm.
I. BACKGROUND
On May 3, 2017, Terry Jenkins entered an Alford1 plea in two
criminal cases against him. In Harlan Circuit Case 13-CR-00013, he pleaded
guilty to two counts of sexual abuse in the first degree, victim under twelve years
old. In Harlan Circuit Case 13-CR-00551, he pleaded guilty to three counts of
sexual abuse in the first degree, victim under twelve years old; one count of
unlawful transaction with a minor in the first degree, minor less than eighteen
years old; escape in the second degree; tampering with a prisoner monitoring
device; resisting arrest; and fleeing or evading police in the second degree. The
trial court sentenced Jenkins to a total terms of ten years’ imprisonment on each
case and ordered that the sentences run concurrently. The sentences were probated
for a term of five years.
Jenkins’s probation was subject to his compliance with the conditions
of supervised probation, which were incorporated into the judgments by reference.
Those conditions included among other things: 1) truthfully and fully answering
1
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
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all inquiries from probation and parole; and 2) undergoing any treatment directed
by the court, which included the sex offender treatment program (“SOTP”) in
Jenkins’s case. Jenkins’s requirement to complete SOTP required him to comply
with additional supplemental conditions such as not establishing any sexual or
dating relationship without the prior approval of his probation officer and treatment
clinician; reporting any relationship with another person who has minor children,
whether in the home or not, to his probation officer and treatment clinician
immediately; not having contact2 with anyone under the age of eighteen, unless it
is specifically authorized by his probation officer and clinician; and reporting any
incidental contact with anyone under the age of eighteen to his probation officer
within twenty-four hours.
On July 23, 2019, Jenkins’s probation officer, Jonathan Creech,
completed a violation of supervision report with respect to Jenkins’s probation.
Therein, Creech outlined numerous violations by Jenkins: (1) being terminated
from SOTP on July 10, 2019, for violating contract terms, his arrest for new sexual
offense charges,3 and being dishonest with the SOTP treatment team; (2) failing to
seek approval from Officer Creech and his treatment clinician, Amy Long, before
2
“Contact” was defined as “face-to-face, telephonic, any correspondence including electronic,
written, and visual, or any indirect contact via third parties.”
3
The conduct giving rise to the charges occurred prior to Jenkins’s guilty pleas even though the
charges were not brought until after the pleas. Accordingly, the new charges were not relied on
by the Commonwealth to support its revocation motion.
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beginning a romantic and sexual relationship with Cathy Cook, a woman with
three minor children; (3) being dishonest with Long and Officer Creech regarding
the nature of his relationship with Cook; (4) having indirect contact with Cook’s
three children; and (5) failing to report said contact to Officer Creech and Long.
On or about August 8, 2019, the Commonwealth moved the Harlan
Circuit Court to revoke Jenkins’s probation; a copy of Officer Creech’s report was
attached to the Commonwealth’s motion. The Commonwealth asserted that the
numerous violations outlined by Officer Creech demonstrated that Jenkins had
failed to comply with the conditions of his supervision, that his failures constituted
a significant risk to Jenkins’s prior victims and the community at large, and that
Jenkins could not be managed appropriately in the community.
The trial court conducted a hearing on the Commonwealth’s
revocation motion on August 15, 2019, at which Officer Creech testified for the
Commonwealth and Cook testified for Jenkins.
Officer Creech testified that he was contacted on June 12, 2019, by
Long. Long relayed that Jenkins had approached her and sought permission to
have Cook, whom Jenkins characterized as a long-time friend, be his partner for
group meetings. Jenkins denied being in a romantic or sexual relationship with
Cook. Officer Creech received an anonymous complaint the next day that Cook
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was actually Jenkins’s girlfriend, and the pair had been living together. He was
also informed Cook had three minor children.
On June 14, 2019, Officer Creech completed a home visit at Jenkins’s
address of record. Both Jenkins and Cook were at Jenkins’s residence when
Officer Creech and other officers arrived. Jenkins again denied being in a
romantic or sexual relationship with Cook. Jenkins told Officer Creech that Cook
was simply a friend who was helping Jenkins care for his mother. When Cook was
questioned, she claimed to be Jenkins’s cousin. Women’s clothing along with
Bath & Body Works coupons were observed in Jenkins’s home. Jenkins and Cook
denied that Cook was living in the home and denied that these items belonged to
Cook.
Jenkins continued to deny that he was in a relationship with Cook or
that he knew she had children. After additional discussion with Long, Jenkins
eventually admitted that Cook had been staying in his home for approximately a
week and that he was aware she had three children. He still continued to deny that
he was in a sexual relationship with Cook or that he had ever had contact with her
children. At this point, Jenkins was informed that he would have to submit to a
polygraph examination if he were to stay in the SOTP because of his prior
inconsistent statements.
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The following day, Jenkins requested permission to begin dating
Cook. He admitted that his relationship with Cook had been sexual for the past
month despite his having not sought prior permission. Jenkins continued to deny
having any contact with Cook’s children. However, Officer Creech testified that
he subsequently learned from Cook’s mother that Jenkins had at least indirect
contact with Cook’s children in the parking lot of a local restaurant and that he had
viewed photographs and videos of this contact.4 Officer Creech alleged Jenkins
never informed him of any contact, indirect or otherwise, he had with minors, in
violation of his requirement to do so.
Finally, Officer Creech confirmed that the SOTP had terminated
Jenkins’s participation in the program effective July 10, 2019, based on his new
charges, dishonesty, engaging in high risk behaviors by maintaining a sexual
relationship with a woman who had minor children, and for failing to notify his
clinician that he was living with Cook and engaging in a sexual relationship with
her.
On cross-examination, Jenkins spent the majority of his energy
focusing on his alleged indirect contact with Cook’s minor children. Despite
having been shown photos and a video of the incident, Officer Creech was not
aware whether the indirect contact occurred right next to the car, or across the
4
The photographs and videos were not introduced during the revocation hearing.
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parking lot. He acknowledged Jenkins did not talk to, wave at, or otherwise send a
message to the children. He further acknowledged that for approximately two
years, Jenkins had remained compliant with the terms of his probation. He stated
by the time this came to his attention, he had already been terminated from the
SOTP.
Jenkins called Cook to testify on his behalf. Cook has three minor
children: a 15-year-old, a 12-year-old, and a 6-year-old. She denied Jenkins has
had any contact with her children. Cook testified she walked the distance from her
children from approximately 75 to 100 feet across the parking lot to where Jenkins
sat in the vehicle. She also stated he did not wave, smile, or otherwise look at the
children. She claims she takes great care to keep her children away from Jenkins.
At the conclusion of the hearing, the trial court made the following
oral findings and conclusions on the record:
The evidence is clear that he was terminated from the sex
offender program, period, for violating contract terms.
He violated probation and parole’s supplemental
conditions of supervision for sex . . . Failed to cooperate
with the probation and parole officer—he did. Even if
the evidence is mixed on whether he had unsupervised
contact with juveniles without permission, and I am not
convinced he didn’t, but that may be mixed. But
nonetheless, the rest is established for the
Commonwealth, so probation’s been revoked. He can’t
be managed in the community and he can’t behave
himself and he’s a danger to others. So probation is
revoked.
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Video Record (“V.R.”) 8/15/19 12:28:20-12:29:25.
Thereafter, on August 28, 2019, the trial court entered a written order
revoking Jenkins’s probation. In its written order, the trial court determined that
Jenkins “violated the terms of his probation” and “[g]iven the charges for which
[Jenkins] stands convicted, the Court is particularly disturbed by [Jenkins’s]
unauthorized relationship with a woman who has two minor children, and the fact
that the woman’s own mother felt it necessary to bring the matter to Officer
Creech’s attention heightens the Court’s concern.”5 The trial court further
determined that Jenkins’s failure to comply with the conditions of his supervision
constituted a significant risk to prior victims and to the community at large and that
Jenkins could not be appropriately managed in the community.
This appeal followed.
II. STANDARD OF REVIEW
We review a circuit court’s decision to revoke probation for an abuse
of discretion. Lucas v. Commonwealth, 258 S.W.3d 806, 807 (Ky. App. 2008).
“The test for abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1999).
5
We note that the record actually established that Cook had three minor children.
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III. ANALYSIS
In Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014), the
Kentucky Supreme Court held that “KRS[6] 439.3106(1) 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.” Id. at 780. By requiring such a determination, “the legislature
furthers the objectives of the graduated sanctions schema to ensure that
probationers are not being incarcerated for minor probation violations.” Id. at 779.
This Court has concluded “the General Assembly intended the task of considering
and making findings regarding the two factors of KRS 439.3106(1) to serve as the
analytical precursor to a trial court’s ultimate decision: whether revocation or a
lesser sanction is appropriate.” McClure v. Commonwealth, 457 S.W.3d 728, 732
(Ky. App. 2015). “These findings can be either oral or written to satisfy both KRS
439.3106(1) and the defendant’s due process rights.” Commonwealth v. Gilmore,
587 S.W.3d 627, 630 (Ky. 2019).
Additionally, the Court in Andrews cautioned that its holding did “not
upend the trial court’s discretion in matters of probation revocation, provided that
discretion is exercised consistent with statutory criteria.” Andrews, 448 S.W.3d at
6
Kentucky Revised Statues.
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780. Accordingly, because “KRS 439.3106 permits, but does not require, a trial
court to employ lesser sanctions . . . incarceration remains a possibility.” McClure,
457 S.W.3d at 732.
“An individual’s probation may be revoked any time before the
expiration of the probationary period when the trial court is satisfied by a
preponderance of the evidence presented in a revocation hearing that the
probationer violated a condition of probation.” Barker v. Commonwealth, 379
S.W.3d 116, 123 (Ky. 2012). Jenkins’s first argument is that the trial court abused
its discretion when it found that Jenkins violated the terms of his probation by
having unauthorized contact with minor children. Reading the written order in
combination with the trial court’s oral findings on the record, however, flatly
contradicts Jenkins’s assertion that his probation was revoked based on his alleged
contact with Cook’s three minor children.
The trial court was clear that it was not totally convinced that Jenkins
had engaged in contact with the three children. Nevertheless, it determined that
Jenkins violated other terms of his probation including having his participation in
the SOTP revoked and failing to cooperate with Officer Creech. It was undisputed
that the SOTP terminated Jenkins’s participation before he had successfully
completed the program. Jenkins’s parole was conditioned on his participation in
the SOTP. His termination from the program was a violation of his probation.
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Additionally, the trial court found that Jenkins had failed to cooperate with
probation officers. This finding is supported by Officer Creech’s and Cook’s
testimony during the revocation hearing. Officer Creech testified that during the
home visit, Jenkins denied that he was in a relationship with Cook and denied she
was living at his home. Jenkins subsequently admitted that Cook was living at his
home and that he had been in a sexual relationship with her for a month prior. Not
only did these subsequent revelations prove Jenkins had previously been dishonest
with probation officers, they also demonstrated that Jenkins had violated the
supplemental terms of his probation insomuch as he was required to secure prior
approval before having contact with someone known to have minor children,
engaging in a sexual relationship with anyone, or changing his living
arrangements.
Jenkins next asserts that the trial court failed to make sufficient
findings to support its conclusion that Jenkins’s conduct posed a risk to his prior
victims and the community at large and that he could not be managed appropriately
in the community. We disagree. The trial court referenced the nature of Jenkins’s
prior convictions, engaging in unlawful sexual activity with minor children, as
compared with his probation violations. Jenkins’s violations arose out of his desire
to hide a sexual relationship with a woman he knew had three minor children
similar in age to Jenkins’s prior victims. Jenkins’s violations placed him in close
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proximity to someone with minor children and his insistence in engaging in a
relationship with Cook without having first secured appropriate permission to do
so called his judgment and motives into suspicion. Moreover, Jenkins’s repeated
dishonesty about the relationship caused him to be terminated from SOTP. The
trial court appropriately concluded that Jenkins could not be managed in the
community, especially since he was no longer receiving treatment as part of SOTP.
See Gamble v. Commonwealth, 293 S.W.3d 406, 409 (Ky. App. 2009).
Jenkins went to great lengths to conceal the nature of his relationship
with Cook, hiding it for at least a month and stating repeatedly she assisted him
with his mother. It was not until Jenkins was informed he would have to undergo a
polygraph examination that he revealed the extent of the relationship. This
evidenced a repeated pattern of dishonesty, unbefitting of someone capable of
being managed in the community. The probation officer testified Jenkins was
terminated from his treatment program, a clear condition of his probation. Given
all of the evidence presented to the trial court, it did not act unreasonably when it
found Jenkins could not be managed in the community and constituted a
significant risk.
In sum, we discern no abuse of discretion in the trial court’s decision
to revoke probation. This is especially true given the crimes for which Jenkins
stands convicted and the nature of the violations. The trial court was rightfully
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concerned with Jenkins’s relationship with a woman who has minor children and
all the dishonesty surrounding it. Requiring those convicted of harming minor
children to inform their probation officers and treatment officers of any intended
romantic relationship is meant to protect the public. It informs their partners of
their backgrounds and any children to whom they might be connected. Wilfong v.
Commonwealth, 175 S.W.3d 84, 99 (Ky. App. 2004).
Jenkins’s final argument is that the trial court should have ordered a
sanction short of full revocation. While it is true that the trial court could have
ordered a lesser sanction, our case law is clear that the trial court is not required to
order a lesser sanction. Andrews, 448 S.W.3d at 780. Decisions regarding
probation revocation are vested within the sound discretion of the trial court. In
this case, Jenkins carried on a relationship for a month, with a woman who has
minor children, without seeking the permission of probation officers. He denied
the nature of their relationship repeatedly. Given the nature of the crimes for
which Jenkins was convicted and the tenor of the violations, we discern no abuse
of discretion in the trial court’s decision to revoke Jenkins’s probation.
IV. CONCLUSION
The Harlan Circuit Court’s order revoking Jenkins’s probation is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Russell D. Alred Daniel Cameron
Harlan, Kentucky Attorney General of Kentucky
Aspen Roberts
Assistant Attorney General
Frankfort, Kentucky
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