Brann v. Commonwealth

469 S.W.3d 429, 2015 Ky. App. LEXIS 122, 2015 WL 4969851
CourtCourt of Appeals of Kentucky
DecidedAugust 21, 2015
DocketNO. 2012-CA-001656-MR
StatusPublished
Cited by2 cases

This text of 469 S.W.3d 429 (Brann 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
Brann v. Commonwealth, 469 S.W.3d 429, 2015 Ky. App. LEXIS 122, 2015 WL 4969851 (Ky. Ct. App. 2015).

Opinion

OPINION

LAMBERT, J., JUDGE:

This case is again before this Court upon remand from the Supreme Court of Kentucky for further consideration in light of its decision in Commonwealth v. Andrews, 448 S.W.3d 773 (Ky.2014). Initially this Court vacated and remanded the case for further consideration by the trial court of the applicability of Kentucky. Revised Statutes (KRS) 439.3106. However, the Supreme Court granted discretionary review and in the meantime rendered Andrews, supra. After reviewing Andreivs, we again vacate and remand for the trial court’s consideration under KRS 439.3106.

In December 2009, Brann was indicted by a Graves County Grand Jury for theft by unlawful taking over $500.00. The charge stemmed from Brann stealing deposits from a Burger King restaurant in Mayfield, Kentucky,.totaling approximately $7,500.00. In February 2010, Brann pleaded guilty in reliance on an offer of pretrial diversion from the Commonwealth. The trial court approved the plea agreement and' placed Brann on pretrial diversion conditioned on him making monthly restitution payments.

Within several months, the Commonwealth moved to revoke Brann’s diversion for failure to make his required restitution payments. The trial court did not initially revoke Brann’s diversion, but ultimately it did revoke it in November 2011, based on Brann’s continued failure to make restitution payments. The trial court sentenced Brann to five years’ imprisonment.

In July 2012, the trial court entered an order granting Brann’s motion for shock probation and placed Brann on supervised probation for a period of five years. The trial court also imposed a number of conditions, which included, among others, that Brann make restitution payments, that he “be evaluated for alcohol and substance abuse and ... comply with any treatment or aftercare as recommended;” and that he “comply with ... other terms and conditions as required by Probation and Parole.”

Shortly after Brann’s release, a violation of supervision report was submitted, which alleged that he had violated the conditions of his probation. Specifically, that report indicated that Brann had failed to attend substance abuse treatment sessions, failed to report to his probation officer, and falsified a releasee’s report. The recommended sanction was revocation of probation.

On July 30, 2012, a revocation hearing was held at which Probation Officer Bradley Fooshee and Brann testified. Officer Fooshee testified that Brann’s supervision began on June 13, 2012, and that he had reported to the probation office on several occasions. However, consistently with the supervision report, Officer Fooshee testified that Brann had violated the conditions of probation by missing a meeting with a social services clinician after having been told to report the previous day; by missing a report date with him; and by falsifying a releasee report by providing a nonworking phone number. Officer Fooshee also testified that Brann had failed to pay any restitution.

In response, Brann testified that the meeting with the social services clinician “must have slipped [his] mind.” He further stated that he missed the meeting with Officer Fooshee because he got his dates mixed up. Brann testified that he was not trying to avoid supervision .and that he had initially reported to the probation office several times when Officer Fooshee was not there. Finally, he testi-[431]*431fled that the phone number he listed on the releasee report was a valid number and produced phone records in support of his claim.

Following the testimony, Brann’s counsel argued that the Commonwealth had failed to establish that Brann could not be safely supervised in the community. The Commonwealth responded that revocation was appropriate, indicating that there had been a number of violations in a short period of time. At the conclusion of the hearing, the trial court revoked Brann’s probation and imposed a five-year sentence. In making its decision, the court noted that it had considered Brann’s past history and the fact that the violations had occurred so soon after Brann’s release and concluded that there was little chance for success in the future. A revocation order was subsequently entered in which the court found that Brann had violated the conditions of probation as follows: 1) failure to attend treatment for substance abuse; 2) falsifying a police report; and 3) failure to report to probation officer. This appeal now follows.

On appeal, Brann argues that the trial court abused its discretion in revoking his probation in light of recently enacted Kentucky Revised Statutes (KRS) 439.3106 and that the trial court’s findings were insufficient and amounted to a violation of his constitutional due process rights.

A trial court’s authority to grant and revoke probation is set forth in KRS Chapter 533. Under that chapter, a trial court may place a defendant on probation and impose certain terms and conditions. See KRS 533.020; KRS 533.030. If the defendant commits an additional offense or violates a condition of probation, the court may “revoke the sentence at any time prior to the expiration or termination of the period of probation.” KRS 533.020(1).

Kentucky case law has long recognized that probation revocation hearings rest within the trial court’s discretionary powers “both in respect to initiation of a hearing and the disposition thereof.” Ridley v. Commomvealth, 287 S.W.2d 156, 158 (Ky.1956). As such, an appellate court reviews a trial court’s decision to revoke probation for an abuse of discretion. Lucas v. Commonwealth, 258 S.W.3d 806, 807 (Ky.App.2008). A trial court abuses its discretion if its decision is “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999). Furthermore, a trial court’s decision to revoke probation is generally “not an abuse of discretion if there is evidence to support at least one probation violation.” Lucas, 258 S.W.3d at 807-08 (internal citation omitted).

Brann first argues that the trial court’s revocation was improper under KRS 439.3016. Brann does not dispute that he violated the conditions of his probation, but claims the violations were an insufficient basis to revoke under the statute. The Commonwealth argues, however, that the revocation was a proper exercise of the trial court’s discretion and that KRS 439.3106 does not limit a court’s authority to revoke probation, and even if it does, Brann’s revocation conformed to the KRS 439.3106

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Cite This Page — Counsel Stack

Bluebook (online)
469 S.W.3d 429, 2015 Ky. App. LEXIS 122, 2015 WL 4969851, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brann-v-commonwealth-kyctapp-2015.