Alyssa Bagby v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: September 3, 2020
• Docket: 2019 CA 001689
• Status: Unknown

Opinion

RENDERED: SEPTEMBER 4, 2020; 10:00 A.M. NOT TO BE PUBLISHED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

APPEAL FROM TAYLOR CIRCUIT COURT v. HONORABLE SAMUEL TODD SPALDING, JUDGE ACTION NO. 19-CR-00198

OPINION REMANDING

** ** ** ** ** 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

-2- 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.

-3- (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

-4- 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

-5- 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.

-6- 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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