RENDERED: MARCH 21, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1387-MR
ADAM TRACEY APPELLANT
APPEAL FROM WAYNE CIRCUIT COURT v. HONORABLE SARA B. GREGORY, JUDGE ACTION NO. 17-CR-00066
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, CETRULO, AND A. JONES, JUDGES.
CETRULO, JUDGE: Adam Tracey (“Tracey”) appeals as a matter of right from
an August 16, 2023 Wayne Circuit Court Order revoking his probation. Because
the circuit court made the statutory findings required by Kentucky Revised Statute
(“KRS”) 439.3106, and the record supports those findings, we affirm. BACKGROUND
On October 3, 2017, Tracey pled guilty to second-degree unlawful
imprisonment, second-degree burglary, fourth-degree assault, second-degree
criminal mischief, third-degree terroristic threatening, and violation of an
emergency protective order/domestic violence order. On November 21, 2017, the
circuit court sentenced Tracey to 10 years of imprisonment, probated for five
years. Among other conditions imposed as part of his probation, the circuit court
ordered Tracey to “[r]efrain from any further violation of the law” and “[r]eport to
the probation officer as directed[.]”
Tracey failed to report to his probation officer in December 2017 and
February 2018. The Commonwealth moved to revoke his probation in March
2018. A bench warrant for Tracey’s arrest was issued, and he was arrested in May
2018. On May 15, 2018, Tracey appeared before the circuit court, was released to
supervision in Fayette County, and was given credit for 30 days of time served.
Tracey failed to report on four separate occasions in July 2018, and
the circuit court issued an arrest warrant. Shortly thereafter, it came to light that
Tracey had been arrested in Ohio, found guilty of burglary, and sentenced to five
years of imprisonment. In July 2023, Tracey was released to Wayne County.
In August 2023, the circuit court held a probation revocation hearing.
At this hearing, Tracey stipulated to absconding and obtaining the conviction in
-2- Ohio. The next day, the circuit court revoked Tracey’s probation and imposed his
original sentence of imprisonment. In January 2024, this Court granted Tracey’s
motion for a belated appeal.
STANDARD OF REVIEW
“A decision to revoke probation is reviewed for an abuse of
discretion.” Commonwealth v. Andrews, 448 S.W.3d 773, 780 (Ky. 2014) (citing
Commonwealth v. Lopez, 292 S.W.3d 878, 881 (Ky. 2009)). “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)).
ANALYSIS
Tracey argues that the circuit court’s findings were not supported by
sufficient evidence, and, as such, his probation revocation cannot stand.
Conversely, the Commonwealth argues that the evidence of record supported the
circuit court’s decision to revoke Tracey’s probation. We agree with the
Commonwealth.
To revoke probation “[t]here must be proof in the record established
by a preponderance of the evidence that a defendant violated the terms of his
release and the statutory criteria for revocation has been met.” Walker v.
-3- Commonwealth, 588 S.W.3d 453, 457 (Ky. App. 2019) (quoting Helms v.
Commonwealth, 475 S.W.3d 637, 645 (Ky. App. 2015)). Further, KRS
439.3106(1)(a) “requires a court to make two findings before revoking probation:
1) the supervised individual must be “a significant risk to prior victims . . . or the
community at large”; and 2) the supervised individual “cannot be appropriately
managed in the community[.]” Kendrick v. Commonwealth, 664 S.W.3d 731, 734
(Ky. App. 2023) (quoting KRS 439.3106).
“[W]e cannot affirm the revocation of probation simply because the
revocation order contains the requisite statutory findings. A revocation
unsupported by evidence of record would not be ‘within the range of permissible
decisions allowed by a correct application of the facts to the law.’” Id. at 735
(quoting McClure v. Commonwealth, 457 S.W.3d 728, 730 (Ky. App. 2015)).
However, while the court must make the required statutory findings as supported
by the record, the court does not need to provide “detailed explanations” for the
findings. Id. (citation omitted). We may consider both the oral and written records
in assessing the sufficiency of the evidence relied upon for revocation.
Commonwealth v. Alleman, 306 S.W.3d 484, 487 (Ky. 2010) (citations omitted).
At his revocation hearing, Tracey stipulated to absconding and his
Ohio conviction. At the hearing, the circuit court noted that, within a year of being
placed on probation in Kentucky, Tracey committed a crime in another state
-4- similar to those he committed in the Commonwealth. At the close of the hearing,
the circuit court stated, “I do think that [Tracey] demonstrated a risk of committing
further offenses and an inability to be managed in the community.”
The circuit court’s order states that Tracey violated the terms of his
probation by absconding and receiving a new conviction. The order goes on to
state that:
2. Tracey needs correctional treatment that can be provided most effectively by [his] commitment to a correctional institution. . . .
...
4. There are no alternatives less restrictive than revocation. [Tracey] will likely re-offend if left in the community.
5. The Court has considered the provisions of KRS 439.3106 and has considered a range of sanctions.
6. The Court has considered sanctions other than revocation and incarceration based on [Tracey’s] violations, [Tracey’s] risk of future criminal behavior, and the need for and availability of interventions which may assist the defendant in remaining compliant in his probation and crime free in the community.
7. [Tracey] cannot be managed in the community.
8. Considering [Tracey’s] criminal history, past behavior and current violations, he is a danger to himself, prior victims and the community at large.
9. Considering [Tracey’s] violations, graduated sanctions are not a viable alternative to incarceration.
-5- Taken alone and together, the video recording of the hearing and the
order revoking Tracey’s probation enable us “to determine the basis of the trial
court’s decision to revoke probation” and that basis “rests on permissible grounds
supported by the evidence.” See Alleman, 306 S.W.3d at 487-88 (internal
quotation marks and citations omitted).
Tracey argues that he is no longer a threat to the community due to his
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RENDERED: MARCH 21, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1387-MR
ADAM TRACEY APPELLANT
APPEAL FROM WAYNE CIRCUIT COURT v. HONORABLE SARA B. GREGORY, JUDGE ACTION NO. 17-CR-00066
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, CETRULO, AND A. JONES, JUDGES.
CETRULO, JUDGE: Adam Tracey (“Tracey”) appeals as a matter of right from
an August 16, 2023 Wayne Circuit Court Order revoking his probation. Because
the circuit court made the statutory findings required by Kentucky Revised Statute
(“KRS”) 439.3106, and the record supports those findings, we affirm. BACKGROUND
On October 3, 2017, Tracey pled guilty to second-degree unlawful
imprisonment, second-degree burglary, fourth-degree assault, second-degree
criminal mischief, third-degree terroristic threatening, and violation of an
emergency protective order/domestic violence order. On November 21, 2017, the
circuit court sentenced Tracey to 10 years of imprisonment, probated for five
years. Among other conditions imposed as part of his probation, the circuit court
ordered Tracey to “[r]efrain from any further violation of the law” and “[r]eport to
the probation officer as directed[.]”
Tracey failed to report to his probation officer in December 2017 and
February 2018. The Commonwealth moved to revoke his probation in March
2018. A bench warrant for Tracey’s arrest was issued, and he was arrested in May
2018. On May 15, 2018, Tracey appeared before the circuit court, was released to
supervision in Fayette County, and was given credit for 30 days of time served.
Tracey failed to report on four separate occasions in July 2018, and
the circuit court issued an arrest warrant. Shortly thereafter, it came to light that
Tracey had been arrested in Ohio, found guilty of burglary, and sentenced to five
years of imprisonment. In July 2023, Tracey was released to Wayne County.
In August 2023, the circuit court held a probation revocation hearing.
At this hearing, Tracey stipulated to absconding and obtaining the conviction in
-2- Ohio. The next day, the circuit court revoked Tracey’s probation and imposed his
original sentence of imprisonment. In January 2024, this Court granted Tracey’s
motion for a belated appeal.
STANDARD OF REVIEW
“A decision to revoke probation is reviewed for an abuse of
discretion.” Commonwealth v. Andrews, 448 S.W.3d 773, 780 (Ky. 2014) (citing
Commonwealth v. Lopez, 292 S.W.3d 878, 881 (Ky. 2009)). “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)).
ANALYSIS
Tracey argues that the circuit court’s findings were not supported by
sufficient evidence, and, as such, his probation revocation cannot stand.
Conversely, the Commonwealth argues that the evidence of record supported the
circuit court’s decision to revoke Tracey’s probation. We agree with the
Commonwealth.
To revoke probation “[t]here must be proof in the record established
by a preponderance of the evidence that a defendant violated the terms of his
release and the statutory criteria for revocation has been met.” Walker v.
-3- Commonwealth, 588 S.W.3d 453, 457 (Ky. App. 2019) (quoting Helms v.
Commonwealth, 475 S.W.3d 637, 645 (Ky. App. 2015)). Further, KRS
439.3106(1)(a) “requires a court to make two findings before revoking probation:
1) the supervised individual must be “a significant risk to prior victims . . . or the
community at large”; and 2) the supervised individual “cannot be appropriately
managed in the community[.]” Kendrick v. Commonwealth, 664 S.W.3d 731, 734
(Ky. App. 2023) (quoting KRS 439.3106).
“[W]e cannot affirm the revocation of probation simply because the
revocation order contains the requisite statutory findings. A revocation
unsupported by evidence of record would not be ‘within the range of permissible
decisions allowed by a correct application of the facts to the law.’” Id. at 735
(quoting McClure v. Commonwealth, 457 S.W.3d 728, 730 (Ky. App. 2015)).
However, while the court must make the required statutory findings as supported
by the record, the court does not need to provide “detailed explanations” for the
findings. Id. (citation omitted). We may consider both the oral and written records
in assessing the sufficiency of the evidence relied upon for revocation.
Commonwealth v. Alleman, 306 S.W.3d 484, 487 (Ky. 2010) (citations omitted).
At his revocation hearing, Tracey stipulated to absconding and his
Ohio conviction. At the hearing, the circuit court noted that, within a year of being
placed on probation in Kentucky, Tracey committed a crime in another state
-4- similar to those he committed in the Commonwealth. At the close of the hearing,
the circuit court stated, “I do think that [Tracey] demonstrated a risk of committing
further offenses and an inability to be managed in the community.”
The circuit court’s order states that Tracey violated the terms of his
probation by absconding and receiving a new conviction. The order goes on to
state that:
2. Tracey needs correctional treatment that can be provided most effectively by [his] commitment to a correctional institution. . . .
...
4. There are no alternatives less restrictive than revocation. [Tracey] will likely re-offend if left in the community.
5. The Court has considered the provisions of KRS 439.3106 and has considered a range of sanctions.
6. The Court has considered sanctions other than revocation and incarceration based on [Tracey’s] violations, [Tracey’s] risk of future criminal behavior, and the need for and availability of interventions which may assist the defendant in remaining compliant in his probation and crime free in the community.
7. [Tracey] cannot be managed in the community.
8. Considering [Tracey’s] criminal history, past behavior and current violations, he is a danger to himself, prior victims and the community at large.
9. Considering [Tracey’s] violations, graduated sanctions are not a viable alternative to incarceration.
-5- Taken alone and together, the video recording of the hearing and the
order revoking Tracey’s probation enable us “to determine the basis of the trial
court’s decision to revoke probation” and that basis “rests on permissible grounds
supported by the evidence.” See Alleman, 306 S.W.3d at 487-88 (internal
quotation marks and citations omitted).
Tracey argues that he is no longer a threat to the community due to his
time spent rehabilitating while incarcerated in Ohio and that his Ohio sentence
should fulfill the need for correctional treatment. While this argument has merit –
and Tracey may have been “older and wiser” by the time Wayne Circuit Court held
his revocation hearing – the trial court nonetheless found he was a current risk and
lesser sanctions were not appropriate at that time. It is the trial court’s role to make
that determination, and we do not reweigh the evidence. See Andrews, 448 S.W.3d
at 781 (“although Andrew’s situation was not clear-cut and another judge may
have opted for a lesser sanction, the trial court’s decision to revoke Andrews’s
probation was neither arbitrary nor unreasonable.”).
The fact remains that the circuit court made the findings required by
KRS 439.3106, and sufficient evidence supported those findings. See Walker, 588
S.W.3d at 457 (quoting Helms, 475 S.W.3d at 645); see also Kendrick, 664 S.W.3d
at 734-35. As such, the circuit court’s order was not “arbitrary, unreasonable,
unfair, or unsupported by sound legal principles[,]” and, thus, the circuit court did
-6- not abuse its discretion. Andrews, 448 S.W.3d at 780 (internal quotation marks
and citations omitted).
CONCLUSION
Accordingly, we AFFIRM the Wayne Circuit Court’s order.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Emily Holt Rhorer Russell Coleman Frankfort, Kentucky Attorney General of Kentucky
Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
-7-