Blankenship v. Commonwealth

494 S.W.3d 506, 2015 Ky. App. LEXIS 178, 2015 WL 9311686
CourtCourt of Appeals of Kentucky
DecidedDecember 23, 2015
DocketNO. 2014-CA-000562-MR
StatusPublished
Cited by15 cases

This text of 494 S.W.3d 506 (Blankenship v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blankenship v. Commonwealth, 494 S.W.3d 506, 2015 Ky. App. LEXIS 178, 2015 WL 9311686 (Ky. Ct. App. 2015).

Opinion

CLAYTON, JUDGE:

Cassandra Blankenship appeals the Boyd Circuit Court’s order revoking her probation and sentencing her to five years. After careful review, we reverse and remand.

[507]*507BACKGROUND

Blankenship was indicted on November-16, 2009, on one count of first-degree trafficking in a controlled substance, first offense; one count of third-degree trafficking in a controlled substance, first offense; and, one count of possession of drug paraphernalia. On April 15, 2010, she .entered a guilty plea to the charges. In exchange for the guilty plea, the Commonwealth recommended a total sentence of five years, probated for five years. Blankenship was sentenced accordingly on May 26, 2010.

On November 27, 2013, a probation and parole officer filed a- violation of supervision report and requested both a probation violation warrant and also a probation revocation hearing. Blankenship was arrested that day. Following her arrest, a probation revocation hearing was held on February 28, 2014.

At the hearing, the probation and parole officer noted that Blankenship was classified as a “low risk” and subject to supervision under this protocol. The incident leading to the probation violation and arrest began when the probation officer received an anonymous phone call alleging that Blankenship was using illegal narcotics. She came into the office to be tested for drugs. Blankenship tested negative for narcotics but positive for marijuana. The probation officer gave her a warning that smoking marijuana, drinking alcohol, and not paying supervision fees were violations of probation.

After Blankenship left the • office, the probation officer received a phone eall, approximately 30 to 45 minutes later, from her. She had inadvertently telephoned the officer. While listening to the phone call, the officer overheard a conversation between Blankenship and an unknown male. In the conversation, she admitted to smoking marijuana after meeting with the officer and drinking alcohol the night before. And the officer heard Blankenship proclaim that a probation and parole office was not going to stop her from smoking marijuana or drinking alcohol.

Subsequently, the probation officer received another phone call about Blankenship’s drug use and responded by calling her back into the office. During this meeting with the probation officer, she acknowledged the unintentional phone call, its contents, and smoking marijuana again. The probation officer also reminded her about the requirement to pay $25.00 per month for supervision. At the time of the violation report, she had not paid any supervision fees-or drug testing fees in over a year, and she owed $120.00 in drug testing and $675.00 in supervision fees.

The probation officer also testified about its- office’s policy on graduated sanctions and discretionary detention. While he was aware that Blankenship’s violations were minor violations, he explained that three minor violations equal a major violation. The officer acknowledged that under the policy for managing low level offenders, three or more minor violations require a recommendation for curfew, community service, electronic monitoring, in-treatment, residential treatment, and discretionary detention. Complicating matters was Blankenship’s failure to pay her supervision fees, which escalated the seriousness of the violations. -Therefore, he decided not to use graduated sanctions, but requested a revocation hearing in order to inform the trial court about Blankenship’s violations.

Blankenship then testified and admitted that she had failed her drug test, smoked marijuana after she left the probation and parole office, and was behind on the supervision fees. Further, Blankenship told the trial court that she suffered from anxiety attacks, severe bipolar disorder, and had just been diagnosed with lupus. She al[508]*508leged that marijuana helped her cope with the anxiety, but she wanted to quit smoking marijuana and needed help to do so. Additionally, Blankenship informed the trial court that she had worked at McDonald’s for the last two years, and the job was still available to her if she was probated. She apologized to the probation officer for the phone call. Finally, Blankenship said that her father would pay her fees, and she'would follow the requirements of probation.

At the time of the hearing, Blankenship had already- been in jail 94 days awaiting the revocation hearing. Her counsel argued that she should be returned to probation with- increased supervision or- treatment options. Counsel- also highlighted the' legislative - intent behind recent changes in the law regarding probation, which supported that it would be better to treat and rehabilitate Blankenship than jail her.

Following the testimony and argument, the trial court orally revoked probation. In the trial court’s written order, entered on March 12, 2014, it observed that Blankenship had three violations of the terms and conditions of. probation; that the Department of Corrections had followed its matrix; and that pursuant to this matrix, three minor violations equal a major violation. It. noted that not only had Blankenship violated the conditions of probation but- also had a previous violation and had not paid her supervision fees in over a year.- -These factors and the contents of the phone call. persuaded the trial court that services or graduated sanctions would be of no benefit to Blankenship. Therefore, it revoked probation and sentenced Blankenship to five years’ imprisonment. Blankenship now appeals the trial court’s order revoking her probation.

STANDARD OF REVIEW

The appellate standard of review of a decision to revoke a defendant’s probation is whether the trial court abused its discretion. Lucas v. Commonwealth, 258 S.W.3d 806, 807 (Ky.App.2008). To amount'to an abuse of discretion, the trial court’s decision must be “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky.2007), quoting Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999). And an appellate court will not hold a trial court to have abused its discretion unless its decision cannot be located within the range of permissible decisions allowed by a correct application of the-facts to the law. Miller v. Eldridge, 146 S.W.3d 909, 915 (Ky.2004).

ANALYSIS

Blankenship argues that the trial court abused its discretion when it revoked probation instead of imposing other sanctions. Further, she maintains that the trial court failed to make findings in accordance with Kentucky Revised Statutes (KRS) 439.3106 and failed to inquire into the reason that she did not pay her fees. The Commonwealth counters that the trial court properly revoked her probation.

KRS 439.3106 provides that:

Supervised individuals shall be subject to:

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Cite This Page — Counsel Stack

Bluebook (online)
494 S.W.3d 506, 2015 Ky. App. LEXIS 178, 2015 WL 9311686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blankenship-v-commonwealth-kyctapp-2015.