RENDERED: SEPTEMBER 2, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-1484-MR
AMY HUDSON APPELLANT
APPEAL FROM BREATHITT CIRCUIT COURT v. HONORABLE LISA HAYDEN WHISMAN, JUDGE ACTION NO. 19-CR-00070
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: TAYLOR, K. THOMPSON, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Amy Hudson (“Appellant”) appeals from an order of
the Breathitt Circuit Court voiding her court-ordered diversion program. She
argues that the circuit court erred in failing to make specific findings in support of
voiding the order of diversion per Kentucky Revised Statutes (“KRS”)
439.3106(1). After careful review, we conclude that the circuit court erred in
voiding the order of diversion without making findings. As such, we reverse the order on appeal, and remand the matter for findings in conformity with KRS
439.3106(1).
FACTS AND PROCEDURAL HISTORY
Late in the evening on July 4, 2019, Kentucky State Trooper Matthew
Day observed Appellant driving her vehicle erratically on Kentucky Highway 15 in
Breathitt County, Kentucky. Trooper Day conducted a traffic stop and Appellant
consented to a search of her vehicle. During the search, the trooper found a drug
pipe with a crystalline substance. Trooper Day arrested Appellant on charges of
possession of drug paraphernalia and driving under the influence of intoxicants
(third offense), as well as six traffic offenses including failure to wear a seatbelt
and operating a vehicle without a license.
On July 12, 2019, the Commonwealth’s Attorney filed an information
in lieu of indictment charging Appellant with one count each of possession of a
control substance in the first degree and driving under the influence of intoxicants
(third offense).1 Appellant accepted a plea offer and received a sentence of two
years in prison to be diverted2 for two years, a $500 fine, and substance abuse
treatment.
1 KRS 218A.1415 and KRS 189A.010. 2 KRS 533.250 and KRS 533.258.
-2- Appellant was noncompliant with the terms of her diversion. On June
29, 2020, Probation and Parole Officer Starla S. Anderson filed a violation of
supervision report. Office Anderson alleged that Appellant failed to report by
telephone in June 2020, failed to pay any drug testing fees, failed to complete drug
treatment, and failed a drug screen (positive for methamphetamine and suboxone).
On July 18, 2020, the circuit court issued a warrant for Appellant’s arrest, which
apparently was never executed in part due to the COVID-19 pandemic.
On January 29, 2021, Officer Anderson filed another violation of
supervision report, alleging that Appellant absconded, failed to report to the
probation and parole officer as directed, and failed to complete substance abuse
treatment. A hearing on the second violation report was conducted on November
5, 2021, resulting in the circuit court finding that Appellant had absconded and
failed to complete treatment. On November 19, 2021, the circuit court voided
Appellant’s diversion and sentenced her to two years in prison to be probated for
two years on the condition that Appellant enroll in drug treatment for more than six
months. This appeal followed.
STANDARD OF REVIEW
The “statutes and regulations applicable to revocation of probation
and for voiding a pretrial diversion agreement are the same.” Helms v.
Commonwealth, 475 S.W.3d 637, 641 (Ky. App. 2015). Revocation of pretrial
-3- diversion, like revocation of probation, is reviewed for abuse of discretion.
Commonwealth v. Andrews, 448 S.W.3d 773, 780 (Ky. 2014) (citing
Commonwealth v. Lopez, 292 S.W.3d 878 (Ky. 2009)). Abuse of discretion is
found where the decision is “arbitrary, unreasonable, unfair, or unsupported by
sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.
1999).
ARGUMENTS AND ANALYSIS
Appellant argues that the Breathitt Circuit Court committed reversible
error by voiding her diversion without making specific findings to support the
order as required by KRS 439.3106(1). She contends that KRS 439.3106(1)
requires express findings that 1) her failure to comply with supervision constitutes
a significant risk to prior victims of the supervised individual or others, and 2) she
cannot be managed in the community at large. Appellant directs our attention to
supportive case law which she argues holds that the findings cannot be implied
from the actions taken by the circuit court, but must be expressly made either
orally or in writing. She asserts that as these findings are a necessary prerequisite
to an order voiding diversion, and as the required findings were not made below,
she is entitled to an opinion reversing the order and remanding the matter for
further proceedings.
KRS 439.3106 states in relevant part:
-4- (1) Supervised individuals shall be subject to:
(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[.]
In addition,
[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. A requirement that the court make these express findings on the record not only helps ensure reviewability of the court decision, but it also helps ensure that the court’s decision was reliable. Findings are a prerequisite to any unfavorable decision and are a minimal requirement of due process of law.
Lainhart v. Commonwealth, 534 S.W.3d 234, 238 (Ky. App. 2017) (emphasis
added) (internal quotation marks and citations omitted).
Thus, when voiding diversion the circuit court must make express
findings, either written or oral, that the individual’s failure to comply with
supervision constitutes a significant risk to prior victims of the supervised
individual or the community at large, and that the individual cannot be managed in
the community.
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RENDERED: SEPTEMBER 2, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-1484-MR
AMY HUDSON APPELLANT
APPEAL FROM BREATHITT CIRCUIT COURT v. HONORABLE LISA HAYDEN WHISMAN, JUDGE ACTION NO. 19-CR-00070
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: TAYLOR, K. THOMPSON, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Amy Hudson (“Appellant”) appeals from an order of
the Breathitt Circuit Court voiding her court-ordered diversion program. She
argues that the circuit court erred in failing to make specific findings in support of
voiding the order of diversion per Kentucky Revised Statutes (“KRS”)
439.3106(1). After careful review, we conclude that the circuit court erred in
voiding the order of diversion without making findings. As such, we reverse the order on appeal, and remand the matter for findings in conformity with KRS
439.3106(1).
FACTS AND PROCEDURAL HISTORY
Late in the evening on July 4, 2019, Kentucky State Trooper Matthew
Day observed Appellant driving her vehicle erratically on Kentucky Highway 15 in
Breathitt County, Kentucky. Trooper Day conducted a traffic stop and Appellant
consented to a search of her vehicle. During the search, the trooper found a drug
pipe with a crystalline substance. Trooper Day arrested Appellant on charges of
possession of drug paraphernalia and driving under the influence of intoxicants
(third offense), as well as six traffic offenses including failure to wear a seatbelt
and operating a vehicle without a license.
On July 12, 2019, the Commonwealth’s Attorney filed an information
in lieu of indictment charging Appellant with one count each of possession of a
control substance in the first degree and driving under the influence of intoxicants
(third offense).1 Appellant accepted a plea offer and received a sentence of two
years in prison to be diverted2 for two years, a $500 fine, and substance abuse
treatment.
1 KRS 218A.1415 and KRS 189A.010. 2 KRS 533.250 and KRS 533.258.
-2- Appellant was noncompliant with the terms of her diversion. On June
29, 2020, Probation and Parole Officer Starla S. Anderson filed a violation of
supervision report. Office Anderson alleged that Appellant failed to report by
telephone in June 2020, failed to pay any drug testing fees, failed to complete drug
treatment, and failed a drug screen (positive for methamphetamine and suboxone).
On July 18, 2020, the circuit court issued a warrant for Appellant’s arrest, which
apparently was never executed in part due to the COVID-19 pandemic.
On January 29, 2021, Officer Anderson filed another violation of
supervision report, alleging that Appellant absconded, failed to report to the
probation and parole officer as directed, and failed to complete substance abuse
treatment. A hearing on the second violation report was conducted on November
5, 2021, resulting in the circuit court finding that Appellant had absconded and
failed to complete treatment. On November 19, 2021, the circuit court voided
Appellant’s diversion and sentenced her to two years in prison to be probated for
two years on the condition that Appellant enroll in drug treatment for more than six
months. This appeal followed.
STANDARD OF REVIEW
The “statutes and regulations applicable to revocation of probation
and for voiding a pretrial diversion agreement are the same.” Helms v.
Commonwealth, 475 S.W.3d 637, 641 (Ky. App. 2015). Revocation of pretrial
-3- diversion, like revocation of probation, is reviewed for abuse of discretion.
Commonwealth v. Andrews, 448 S.W.3d 773, 780 (Ky. 2014) (citing
Commonwealth v. Lopez, 292 S.W.3d 878 (Ky. 2009)). Abuse of discretion is
found where the decision is “arbitrary, unreasonable, unfair, or unsupported by
sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.
1999).
ARGUMENTS AND ANALYSIS
Appellant argues that the Breathitt Circuit Court committed reversible
error by voiding her diversion without making specific findings to support the
order as required by KRS 439.3106(1). She contends that KRS 439.3106(1)
requires express findings that 1) her failure to comply with supervision constitutes
a significant risk to prior victims of the supervised individual or others, and 2) she
cannot be managed in the community at large. Appellant directs our attention to
supportive case law which she argues holds that the findings cannot be implied
from the actions taken by the circuit court, but must be expressly made either
orally or in writing. She asserts that as these findings are a necessary prerequisite
to an order voiding diversion, and as the required findings were not made below,
she is entitled to an opinion reversing the order and remanding the matter for
further proceedings.
KRS 439.3106 states in relevant part:
-4- (1) Supervised individuals shall be subject to:
(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[.]
In addition,
[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. A requirement that the court make these express findings on the record not only helps ensure reviewability of the court decision, but it also helps ensure that the court’s decision was reliable. Findings are a prerequisite to any unfavorable decision and are a minimal requirement of due process of law.
Lainhart v. Commonwealth, 534 S.W.3d 234, 238 (Ky. App. 2017) (emphasis
added) (internal quotation marks and citations omitted).
Thus, when voiding diversion the circuit court must make express
findings, either written or oral, that the individual’s failure to comply with
supervision constitutes a significant risk to prior victims of the supervised
individual or the community at large, and that the individual cannot be managed in
the community.
When addressing the second motion to void diversion, the circuit
court made handwritten notations on Court of Justice form AOC-346 (“Order
-5- Voiding Pretrial Diversion of a Class D Felony”). When prompted to state how
Appellant had violated the conditions of pretrial diversion, the court wrote
“absconding supervision” and “failure to complete treatment @ Blue Sky.”
The question for our consideration is whether these responses satisfy
KRS 439.3106 and Lainhart. We conclude that they do not. Lainhart requires
“courts to make specific findings of fact . . . addressing the statutory criteria” so
that an appellate court is not reduced to speculation. Lainhart, 534 S.W.3d at 238.
The court’s responses on form AOC-346 do not address whether Appellant’s
failure to comply with supervision constitutes a significant risk to prior victims of
the supervised individual or the community at large, nor whether she can be
managed in the community. Though we may infer from the handwritten notations
on form AOC-346 that the circuit court believed the statutory elements were met,
the statute and case law do not allow for such an inference. Id.
The Commonwealth asserts that New v. Commonwealth, 598 S.W.3d
88, 90 (Ky. App. 2019), holds that an appellate court can review the trial judge’s
decision and rule that the elements of KRS 439.3106(1) were clearly present, even
if the trial judge did not make specific findings. We do not read New v.
Commonwealth as so holding. The circuit court in New made express, oral
findings that the individual presented a danger to others and could not be managed
in the community. New, 598 S.W.3d at 89 (“Without elaboration, the trial court
-6- orally found New could not be managed in society and presented a danger to
himself and others[.]”). On appeal, the panel of this Court held that “before
revoking probation a trial court must make two findings under . . . [KRS]
439.3106(1).” Id. at 90. The panel noted, however, that these findings can be
made without explanation. “A trial court is not required to provide explanations
for those findings; instead, it must only make the findings, which must be
supported by the evidence of record.” Id. (internal quotation marks and citation
omitted). New reaffirms that the circuit court must make express written or oral
findings, that the findings may not be inferred from the order, and that they must
be supported by the record. These requirements ensure that the court’s decision is
reliable and are a minimal requirement of due process of law. Lainhart, 534
S.W.3d at 238.
CONCLUSION
The Breathitt Circuit Court did not make oral or written findings in
conformity with KRS 439.3106(1) and Lainhart. For this reason, we reverse the
order voiding Appellant’s diversion and remand the matter for additional findings
and proceedings.
ALL CONCUR.
-7- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Kayla D. Deatherage Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky
Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
-8-