Alyssa Bagby v. Commonwealth of Kentucky ( 2020 )

RENDERED: SEPTEMBER 4, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-001689-MR
ALYSSA BAGBY APPELLANT
APPEAL FROM TAYLOR CIRCUIT COURT
v. HONORABLE SAMUEL TODD SPALDING, JUDGE
ACTION NO. 19-CR-00197
COMMONWEALTH OF KENTUCKY APPELLEE
AND
NO. 2019-CA-001690-MR
ALYSSA BAGBY APPELLANT
APPEAL FROM TAYLOR CIRCUIT COURT
v. HONORABLE SAMUEL TODD SPALDING, JUDGE
ACTION NO. 19-CR-00198
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
REMANDING
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BEFORE: GOODWINE, K. THOMPSON, AND L. THOMPSON, JUDGES.
GOODWINE, JUDGE: Alyssa Bagby appeals from the Taylor Circuit Court’s
September 24, 2019 orders revoking her probation. After careful review, we
remand for specific findings.
On December 14, 2018, the Oldham Circuit Court placed Bagby on
pretrial diversion after she pled guilty to first-degree possession of heroin and first-
degree possession of methamphetamine. The diversionary period was to last three
years, and Bagby was required to complete drug treatment. During that period,
several reports of violations were filed against Bagby.
On April 1, 2019, Bagby was charged with second-degree escape in
Oldham County. The Commonwealth moved to revoke her pretrial diversion,
arguing Bagby absconded, failed to complete treatment, and was charged with a
felony. On August 1, 2019, Bagby pled guilty to the escape charge and was
revoked from pretrial diversion. The same day, Bagby pled guilty to first-degree
bail jumping under a separate indictment. The Oldham Circuit Court sentenced
Bagby to consecutive sentences of three years and two years but probated the
sentences for a total of five years. As a condition of probation for both cases,
Bagby was required to complete the Taylor County drug court program.
Bagby’s cases were transferred to Taylor County. She entered drug
court on a Friday and admitted to using “spice” (synthetic marijuana) the next
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Monday. She was terminated from the program. As a result, the Commonwealth
moved to revoke Bagby’s probation.1 The Taylor Circuit Court held a probation
revocation hearing on September 24, 2019. Ginger Ford, with the Taylor County
drug court program, testified on behalf of the Commonwealth. Ms. Ford testified
regarding Bagby’s brief participation in drug court, including her admitted use of
spice and subsequent termination from the program. Bagby did not testify and
presented no other testimony.
Following the hearing, the circuit court revoked Bagby’s probation.
In both its oral and written findings, the circuit court found “by a preponderance of
the evidence that [Bagby] violated the terms of her probation by being terminated
from drug court because of spice usage.”2 This appeal followed.
On appeal, Bagby argues the circuit court palpably erred in failing to
make findings under KRS3 439.3106 as required by Commonwealth v. Andrews,
448 S.W.3d 773 (Ky. 2014). KRS 439.3106 provides the criteria for revoking
probation:
(1) Supervised individuals shall be subject to:
1
The Commonwealth’s motion was mistakenly titled “Motion to Revoke Pretrial Diversion.”
Bagby’s acceptance into pretrial diversion had been revoked before her cases were transferred to
Taylor County.
2
19-CR-00197 Record (R.) at 103; 19-CR-00198 R. at 32.
3
Kentucky Revised Statutes.
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(a) Violation 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
large, and cannot be appropriately managed in
the community; or
(b) Sanctions other than revocation and
incarceration as appropriate to the severity of
the violation behavior, the risk of future
criminal behavior by the offender, and the need
for, and availability of, interventions which
may assist the offender to remain compliant and
crime-free in the community.
The Commonwealth asserts the circuit court was not required to make
specific findings because “perfunctorily reciting the statutory language in KRS
439.3106 is not enough” under Helms v. Commonwealth, 475 S.W.3d 637, 645
(Ky. App. 2015). However, Bagby argues the circuit court was required to “make
specific findings under KRS 439.3106(1) regarding the risk posed to prior victims
or the community and whether the probationer can be managed in the community”
under Andrews. 448 S.W.3d at 775.
This Court has repeatedly upheld the notion that specific findings of
fact are required to support the trial court’s conclusion that a defendant poses a risk
to the community and is unmanageable in the community. In McClure v.
Commonwealth, 457 S.W.3d 728 (Ky. App. 2015), this Court held sufficient
evidence supported revocation, and the trial court made sufficient findings as to the
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first statutory requirement but not the second requirement. There, the trial court
found the defendant “was a ‘danger to [the] public’ based on his attempt to alter
the results of a drug screen.” Id. at 733. This Court held “the trial court’s
statements at the conclusion of the hearing . . . demonstrated that the court
considered the gravity of McClure’s actions and the danger posed by his obvious
addiction. This was sufficient.” Id. As to the second statutory requirement, this
Court held “the record is devoid of any express written or oral finding concerning
whether McClure could be managed within the community . . . . While evidence
existed in the record to support it, the trial court failed to make a finding on this
essential second element.” Id. In sum, “[f]or purposes of review, rather than
speculate on whether the court considered KRS 439.3106(1), we require courts to
make specific findings of fact, either written or oral, addressing the statutory
criteria.” Lainhart v. Commonwealth, 534 S.W.3d 234, 238 (Ky. App. 2017)
(citing McClure, 457 S.W.3d at 733-34); Compise v. Commonwealth, 597 S.W.3d
175, 180 (Ky. App. 2020). This requirement “not only helps ensure reviewability
of the court decision, but it also helps ensure that the court’s decision was
reliable.” Lainhart, 534 S.W.3d at 238.
Here, the Commonwealth presented evidence at the revocation
hearing that Bagby admitted to using spice and was terminated from drug court.
After hearing the evidence presented, the circuit court merely found “by a
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preponderance of the evidence that [Bagby] violated the terms of her probation by
being terminated from drug court because of spice usage” in both its oral and
written findings.4 The circuit court’s oral ruling and written order revoking
Bagby’s probation made no mention of the KRS 439.3106 requirements or any
related findings. Without any oral or written findings, we are unable to review the
circuit court’s decision or determine its reliability. As such, we hold the circuit
court palpably erred in failing to make the required findings under KRS 439.3106.
Although the circuit court should not merely parrot the language of
KRS 439.3106, it must support its conclusion with facts from the record in either
oral or written findings by showing how Bagby’s violation posed a risk to the
community or how it proves she cannot be managed in the community. Thus,
although evidence likely exists in the record to support the circuit court’s ruling,
we hold the circuit court failed to make sufficient, specific findings of fact to
support the revocation of Bagby’s probation.
For the foregoing reasons, we remand for the entry of specific
findings as to whether Bagby’s violation of the conditions of her probation
constituted a significant risk to her prior victims or the community at large and
whether she cannot be properly managed in the community under KRS 439.3106.
4
Supra note 2.
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ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Adam Meyer Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Aspen Roberts
Assistant Attorney General
Frankfort, Kentucky
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